This Week's SCOTUS Rulings

* A cert grant regarding a suit against Google that relied on a subsequently overturned Court of Appeals decision was remanded. Cert was granted on the issue of whether a charitable gift that gave nothing to class members and resulted in an attorneys' fee award was proper in a suit over Google's failure to make statutorily required disclosures. But, the remand was on the issue of whether the class had standing to sue for Google's violation of the statute. The case the lower court relied upon for that proposition was reversed by SCOTUS on the grounds that not all violations of statutes sufficient to give rise to an Article III standing eligible injury. Frank v. Gaos, No. 17-961.

The case reveals, once again, the hostility of the Supreme Court to class action lawsuits. 

* SCOTUS holds that a law firm carrying out only non-judicial foreclosures in Colorado is not a debt collector for purposes of the fair debt collection act except for three narrow provisions related to non-judicial foreclosures. Obduskeyv. McCarthy & Holthus LLP, No. 17-1307.

This is contrary to the working understanding that firms that regularly engage in debt collection are debt collectors even if a substantial part of their work includes non-judicial foreclosures. The analysis is weak in too easily conceding that this law firm that does non-judicial foreclosures is not also more broadly a debt collector without more global analysis of the scope of the law firm's practice, and in its lack of analysis regarding the claim that a non-judicial foreclosure in Colorado which calls for a short court hearing, is truly non-judicial. This ruling comes on the heels of a SCOTUS ruling that a collection agency which buys a third-party's defaulted debt and then collects it on its own is also not within the scope of the Fair Debt Collection Practices Act. There is a parallel Colorado Act with the Colorado General Assembly could amend to address this issue.

* Product liability suits involving ships are subject to admiralty law, rather than state law in product liability lawsuits. At issue is whether the manufacturer is liable for failure to warn of a dangerous product used for its intended use under admiralty law when the dangerous part of the product is intended to be added by the consumer after purchase, rather than included in what is delivered by the manufacturer. In this case, it is asbestos that must be added by the consumer (the U.S. Navy) after delivery. SCOTUS holds that in these circumstances, there is a duty to warn. Air & Liquid Systems Corp. v. DeVries, No. 17-1104.

Since admiralty is a matter of federal common law, the Supreme Court has great discretion in how it resolves these cases (which honestly, don't come up very often).

* SCOTUS holds that an Indian tribe importing gasoline over public highways that cross Washington State via a company the is tribal owned to stores on a reservation is not subject to Washington State fuel taxes based upon the relevant treaty. Justice Gorsuch joined the four liberal justices in making this ruling. Washington State Dept. of Licensing v. Cougar Den, Inc., No. 16-1498.

The core issues appears to have been whether a treaty right to use public highways including a treaty right to transport goods across those highways to a reservation without subjecting the goods to taxation.

* U.S. immigration laws provide that if an immigrant is allegedly deportable due to a criminal conviction and falls into one of four categories, and is picked up directly from jail by immigration officials and placed in immigration custody that the immigrant must be detained indefinitely until a hearing is held. The immigrants in question would have been subject to this rule if they were immediately turned over to immigration officials, but were instead released and then apprehended by immigration officials. The statute that governs immigrants detained by immigration officials who are not turned over directly by jails or prisons to immigration custody entitles them to a pre-trial release hearing. SCOTUS holds that despite the plain language of the statute that the immigrants in question are not eligible for pre-trial release hearings and must be indefinitely detained until a hearing is held on the deportation merits. (A mootness issue related to the fact that some parties received relief or were deported before the case made it to SCOTUS and before a class was certified is dispensed with under the notion of an issue that would defy review for mootness if that rule was strictly applied.) Nielsen v. Preap, No. 16-1363.

This is a big deal, in part, because the speedy trial requirements of the 6th Amendment do not apply to deportation hearings which are chronically very, very behind schedule, which makes any kind of indefinite detention pending a deportation hearing problematic.  Kavanaugh concurs in an opinion noting the narrowness of the decision which does not, for example, address the legality of indefinite pre-trial detention in immigration proceedings in general (which was addressed in three prior SCOTUS cases). Thomas and Gorsuch concur to take the extreme position that immigration detention is not subject to judicial review. The four liberal justices dissent arguing that the distinction between immigrants immediately turned over and those who are detained later is meaningful and intended, because those detained later may have set down ties for years in the U.S. that make the harm of denying a hearing much greater than that of someone going directly from criminal incarceration to immigration detention.