Last Month at the Supreme Court | November 2023

Dykema’s appellate group is delighted to present the inaugural edition of its monthly publication, “Last Month at the Supreme Court.” Each publication will feature synopses of the Court’s high-profile and client-oriented cases, including highlights from oral argument and opinion analysis as the Court issues key decisions. 

The November 2023 edition features cases involving standing in public accommodations “test” actions, the constitutionality of the CFPB’s funding mechanism, choice-of-law provisions in maritime insurance contracts, the Sarbanes-Oxley whistleblower burden-shifting framework, and political gerrymandering.

Supreme Court Examines Standing In “Test” Cases Under The Americans With Disabilities Act

In Acheson Hotels, LLC v. Laufer, the Court is considering whether a self-appointed Americans with Disabilities Act (ADA) “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation. Read the full synopsis here.  

Supreme Court Grapples With The Constitutionality Of The CFPB’s Funding By The Federal Reserve

In Consumer Fin. Protection Bureau v. Community Fin. Services Assn. of Am., the question before the Court is whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau (CFPB), 12 U.S.C. § 5497, violates the Appropriations Clause, U.S. Const. Art. I, § 9, Cl. 7, and in vacating a regulation promulgated at a time when the CFPB was receiving such funding. Read the full synopsis here.

Supreme Court Weighs The Reliability Of Choice-Of-Law Clauses In Maritime Contracts

The seemingly narrow question presented in Great Lakes Ins. SE v. Raiders Retreat Realty Co., LLC is whether, under federal admiralty law, a choice-of-law clause in a maritime contract is rendered unenforceable if enforcement would contradict the “strong public policy” of the state whose law is displaced. Read the full synopsis here.

Supreme Court Takes Up Sarbanes-Oxley Whistleblower Burden Shifting

In Murray v. UBS Sec., LLC, the Court is considering whether, within the burden-shifting framework governing Sarbanes-Oxley cases, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or if the employer bears the burden of proof to establish the lack of “retaliatory intent” in proving its affirmative defense. Read the full synopsis here.

Supreme Court Takes On Whether Political Gerrymandering Is Unconstitutional Racial Gerrymandering By Another Name

In Alexander v. S. Carolina State Conf. of the NAACP, the Court returns to a thorny challenge of untangling race and partisan interest as legislatures go about their mandatory obligation to redraw political lines following each census. The issue before the Court involves the difference between political gerrymandering and unconstitutional racial gerrymandering, and the elusive standards for differentiating between the two. Read the full synopsis here.

For more information about this alert, please contact the authors of this alert, Chantel Febus, James Azadian, David Schenck, Christopher Sakauye, McKenna Crisp, Monika Harris, and Puja Valera.