UWBI notes in its petition meanwhile that four circuits have rejected the rule, relying instead on state law to determine tax-refund ownership.
“The stakes are considerable,” the petition states. “Corporate tax refunds often run into the tens or hundreds of millions of dollars. Assigning those assets to the right owner matters greatly to the corporations and their shareholders. And when corporations enter bankruptcy, it matters to their creditors, too. If a refund is part of a parent corporation’s estate, it can be used to repay the corporation’s unsecured creditors. But if the refund is owned by the subsidiary, the parent must transfer it to the subsidiary in full.”
Going on to call the rule “profoundly incorrect,” UWBI says the Bob Richards rule “has no statutory foundation and satisfies none of the stringent prerequisites for federal common lawmaking.”
“The court should not permit the rights of corporations, shareholders, and creditors to vary dramatically circuit-by-circuit based on this invented presumption," the petition continues.
Hogan Lovells attorney Neal Kumar Katyal represents Simon Rodriguez, as Chapter 7 trustee for UWBI’s bankruptcy estate.
Former U.S. solicitor general.
Katyal served as acting solicitor general from May 2010 to 2011 and will go up in this case against U.S. Solicitor General Noel Francisco.
Orrick, Herrington & Sutcliffe represents the American College of Tax Counsel.
Babb v. Wilkie
Noris Babb is a Florida pharmacist who says gender discrimination by the Bay Pines Veteran Affairs Medical Center cost her at a chance at career advancement and a higher salary.
She seeks a reversal from the Supreme Court after the 11th Circuit affirmed dismissal of her claims. In Babb’s petition, filed by the law firms Latham & Watkins and Merkle & Magri, she notes that federal employees filing claims under Title VII and the Age Discrimination in Employment Act “face inexplicably differing standards of proof depending on where they file.”
In taking up the case, the Supreme Court notes that ADEA’s federal-sector provision “provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age.” The court said it will decide whether this “requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.”
GE Energy Power Conversion v. Outokumpu Stainless
Whether foreign entities can invoke arbitration clauses from contracts to which they are not a party is the question asked by this case.
It stems from an equipment-purchasing agreement between Outokumpu Stainless and Fives St. Corp., which in turn subcontracted to get equipment parts from Converteam SAS, a foreign entity now known as GE Energy Power Conversion France SAS.
When those parts failed, Outokumpu and its insurers sued the parent company, GE Energy, in Alabama.
Though GE initially managed to have the case removed to federal court and then dismissed in favor of arbitration, the company’s luck changed at the 11th Circuit.
Deepening a 2-to-2 circuit split, that appeals court held that a nonsignatory to a contract cannot compel arbitration if one of the parties is a foreign entity.
“GE Energy should not have been worse off simply because it is a foreign corporation,” the company says in its petition for certiorari.
GE is represented by Jones Day, and Outokumpu is represented by the Birmingham firm Burr & Forman. Clausen Miller represents one of Outokumpu’s insurers, Sompo Japan Insurance Company of America.
Shular v. U.S.
Representing yet another successor to evolving precedent over the Armed Career Criminal Act, this case asks whether a categorical approach should be used to determine whether convictions represent “serious drug offenses,” thus triggering the ACCA’s sentencing enhancements for convicted felons convicted of gun possession.
As with violent felonies, the ACCA says that a person who has three prior convictions for “serious drug offenses” is mandated to serve a 15-year minimum prison sentence for firearm possession.
In the underlying case, a probation officer classified Eddie Lee Shular as an armed career criminal based on his six prior Florida cocaine convictions — five for sale and one for possession with intent to sell.
The designation stuck even though Shular argued that Florida prosecutors faced no requirement to prove he knew he was selling a controlled substance. This is a critical threshold, according to Shular’s petition because Congress intended for serious drug offenses “to be those offenses that require the mens rea element that is missing from the Florida statute.”
Shular was sentenced to 15 years in prison, a term that the 11th Circuit affirmed. He is represented by federal public defender Richard Michael Summa.
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