Justice Department Invokes Arbitration in Merger Dispute. Court Refuses Again to Extend Bivens Remedy. Congress Cannot Revoke States' Immunity in Copyright Suits

• Author: Steven J. Mintz
• Pages: 9-13

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Justice Department Invokes Arbitration in

Merger Dispute

Court Refuses Again to Extend Bivens Remedy

Congress Cannot Revoke States’ Immunity in

Copyright Suits

EXECUTIVE BRANCH

Antitrust/Arbitration

The Antitrust Div ision of the

Justice Depa rtment, for the f‌i rst

time, used its au thority under the

Administrative Dispute Resolution

Act of 1996 (5 U. S.C. §§ 571 et seq.)

to resolve a merger dis pute by bind-

ing arbitration . The government f‌iled

a civil antitrust suit i n the Northern

District of Ohi o to block the pro-

posed acquisiti on of Aleris Corp. by

Novelis, Inc. , but also reached an

agreement with th e defendants to

refer the matter to bin ding arbitra-

tion if the partie s were unable to re-

solve the government’s competition

concerns within a sp ecif‌ied time pe-

riod. After fa ct discovery supervised

by the court, the ar bitrator held a

10-day hea ring to resolve the issue

of whether alumi num auto body

sheet constitutes a r elevant produc t

market under the a ntitrust laws.

U.S. SUP REME COUR T/

JUDICIARY

Age Discrimination/Federal

Employment

The Court he ld that the federa l

sector provision of th e Age

Discriminatio n in Employment Act,

29 U.S.C . § 633(a), requires that

personnel a ctions “be untainted by

any consideratio n of age.” With re-

spect to certa in remedies, however,

a plainti must sh ow that age was a

“but-for cause of the ch allenged em-

ployment decisi on.” If age discri mi-

nation played a less th an but-for

part in the dec ision, forwar d-looking

remedies like in junctive relief may

be appropriate. Babb v. Wilkie, No.

18-882.

Bivens Actions

In Bivens v. Six Unknown Fede ral

Narcotics Agents, 403 U.S. 38 8

(1971), the C ourt recognized an im-

plied damage s remedy under the U.S.

Constitution to compensate persons

injured by federa l ocers who vio-

lated the Fourth A mendment prohibi-

tion against unreasonable searches

and seizures. T he Court now holds

that Bivens d oes not extend to claims

based on a cross-b order shooting.

Hernandez v. Mesa, N o. 17-1678.

Copyrigh t

The Court he ld that the Constitu tion

does not give Cong ress the power

to revoke the states’ immun ity from

suit for copyright inf ringement. Allen

v. Cooper, No. 18-87 7.

Criminal Law/Plain Error

The Court he ld that the Fifth

Circuit’s practice—unique among

the federal circ uits—of refusin g to

review certain un preserved fac tual

arguments fo r plain error is not su p-

ported by Fed. R . Crim. P. 52(b) and

has no other leg al basis. Da vis v.

United States, No . 19-5421 .

Criminal Law/Sentencing

The Court he ld that a defenda nt who

requests a specif‌ic sentence dur-

ing a sentencing h earing need not

object to a longe r sentence after its

pronouncem ent in order to prese rve

a challenge to the s entence’s sub-

stantive reasonableness on appeal.

Holguin-He rnandez v. United States,

No . 18-7 739.

ERISA/Limitations

The Employee Retirement Income

Security Act of 1 974, 29 U.S.C .

§1113(2), require s plaintis with “ac-

tual knowledge ” of an alleged f‌idu-

AND MORE . . . BY ST EVEN J. MIN TZ, LITIGATION NEWS ASSOCIATE EDITOR

ciary breach to f‌i le suit within three

years of gaining th at knowledge. The

Court held th at a plainti does n ot

necessarily have “actual knowledge”

of the information co ntained in dis-

closures that he or s he receives but

does not read or c annot recall re ad-

ing. To meet the “actual k nowledge”

requirement , a plainti must in fact

have become aware of the in forma-

tion. Intel Corp. Investment Policy

Committee v. Sulyma, No. 18-1116.

Immigration

The Court he ld that the phrase

“questions of law ” in 8 U.S.C.

§ 1252(a)(2)(D), which permits j udi-

cial review of a narrow categ ory of

issues in governm ent orders dire ct-

ing the removal of alie ns, includes

the applicatio n of a legal stand ard

to undisputed fac ts. As applied to

this case, that ho lding means that a

request for eq uitable tolling of th e

deadline to f‌ile a st atutory motion

to reopen depor tation cases is judi-

cially reviewable. Guerrero-Lasprilla

v. Bar r, No. 18-776.

Racial Discrimination

The Court he ld that a plainti sui ng

under 42 U.S .C. § 1981 (part of the

Civil Rights Act of 1 866), which

guarantees equal protection in con-

tracting, bea rs the burden of show-

ing that race was a but-for ca use of

its injury. Comc ast Corp. v. National

Ass’n of African-American-Owned

Media, No. 18-117 1.

Steven J. Mintz i s leaving the Litigation News

editorial boa rd after 16 years of dedic ated

service to the ma gazine. We are thankful

for his many contributions, including the 12

years he dilige ntly wrote Keeping Watch.

We wish him well in the fut ure.

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