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Monday, July 22, 2024 | Back issues
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Supreme Court Potpourri: A Look at Cases Coming Next Fall

The Supreme Court added nine new cases Friday to the calendar it will tackle after summer hiatus. Here is a look at what's on tap.

CVS Pharmacy v. John Doe

In 2018, a group of HIV-positive individuals filed a federal discrimination lawsuit after the pharmacy chain CVS enrolled them in a prescription benefit plan that limits the ways in which they can get specialty medications, a class that includes prescriptions to treat HIV and AIDs, at “in-network” prices.

Whereas before the patients could use their full insurance benefits while obtaining their HIV/AIDS medication from any in-network pharmacy, including from pharmacies that were not at a CVS retail location, the change to the Caremark California Specialty Pharmacy program meant that they could only accept medication through mail delivery or by going to a CVS pharmacy.

They say neither option works since mail delivery leaves their medication exposed to the elements, including heat or theft, while pick-up at a CVS affords little privacy.

The plaintiffs sought an exemption from the insurance plan's delivery conditions by arguing that they have disproportionate effects on members with HIV or AIDS.

CVS petitioned the Supreme Court for a writ of certiorari after the Ninth Circuit held that plaintiffs stated a claim for disability discrimination under the federal heath care law.

On Monday, the justices agreed to decide whether section 504 of the Rehabilitation Act, which prohibits disability discrimination by recipients of federal funding, provides a cause of action for plaintiff's discrimination through disparate impact

CVS is represented by Lisa S. Blatt at Williams & Connolly. The anonymous patients are represented by Consumer Watchdog attonrey Gerald Sinclair Flanagan.

Jane Cummings v. Premier Rehab Keller PLLC, by SAMANTHA HAWKINS

The justices have agreed to decide whether compensatory damages available under federal civil rights law include compensation for emotional distress. 

The case arose when Jane Cummings, who has been deaf and blind since birth, consulted a physical therapy provider for her chronic back pain and was denied a sign-language interpreter. Cummings sought damages for the “humiliation, frustration and emotional distress” from the ordeal, but the U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of her case, saying such damages are available only for a “serious emotional disturbance.”

“In doing so, the Fifth Circuit adopted a rule that would deny compensation for one of discrimination’s principal harms — and that would leave many victims… with no meaningful remedy at all,” Cummings argued in a petition for a writ of certiorari

The petition notes that other courts around the country have held that emotional distress damages are generally recoverable, creating a split in understanding about the relief available under Title VI. 

“The meaning of those vital antidiscrimination laws should not depend on the happenstance of geography,” the petition states. “But since the Fifth Circuit’s decision, it does.”

Andrew Rozynski of Eisenberg & Baum is representing Cummings, while Brian Scott Bradley of Watson, Carway, Midkiff and Lungingham is representing Premier Rehab Keller.

Gianinna Gallardo V. Simone Marstiller, by BRAD KUTNER

In November 2008, 13-year-old Gianinna Gallardo was left in a permanent vegetative state after she was hit by a truck while getting off her school bus in Florida.

Medicaid covered more than $862,000 in medical expenses after the crash, but state health authorities would later claim that Florida law entitled them to recover about $300,000 from the $800,000 settlement that the Gallardo family reached with the owner of the truck and the school board.

Attorneys at Creed & Gowdy and the Public Citizen Litigation Group aruged in a petition for a writ of certiorari that the 11th Circuit was wrong to allow such reimbursement as it conflicted with Florida Supreme Court precedent. Two years older, the state court "held exactly the opposite — that the Medicaid Act preempts the same Florida statute and limits the state to seeking reimbursement from settlement amounts attributable to past medical expense."


“In allowing Florida to recover its past expenditures from the amount Ms. Gallardo received for future medical expenses, the Eleventh Circuit acknowledged that its ruling squarely conflicted with the Florida Supreme Court,” the petition states.

“Unless and until this court resolves the conflict, the States and their legislatures cannot know what federal law requires of them,” it continues. “There is an urgent need for this Court’s guidance on the question presented.”

United States v. Justin Taylor, by KAILA PHILO

In August 2003, Justin Taylor and an accomplice shot and killed Martin Silvester while trying to rob him during a marijuana drug deal in Richmond, Virginia. Court records show that the accomplice brandished a 9-mm semiautomatic pistol, and that the weapon discharged when Silvester resisted.

Taylor was given a 30-year prison sentence after he pleaded guilty to a Hobbs Act robbery conspiracy charge and to using a firearm during a crime of violence. The U.S. government seeks a Supreme Court reversal now after the Fourth Circuit reversed, holding that the offense of attempted Hobbs Act robbery does not qualify as a “crime of violence.”

The government is represented by Deputy Solicitor General Edwin Kneedler. Federal public defender Frances Hemsley Pratt represents Taylor, whom the high court has granted leave to proceed in forma pauperis.

April Hughes, et al. v. Northwestern University, et al.

The U.S. Supreme Court will weigh in on whether employees can sue their universities for charging excessive retirement plan fees. 

The lawsuit, a massive 141-page complaint filed by Northwestern University employees, was thrown out by a federal appeals court last year. Led by April Hughes, Laura Divane and others, the employees claimed that the university mismanaged their retirement plans by providing investment options that were “too numerous, too expensive, or underperforming.”

“The question presented carries vital importance for the financial security of American workers,” their attorneys at Kellogg Hansen and Schlichter Bogard wrote in a petition for a writ of certiorari.

Since 2016, more than 20 elite universities have been hit by class action lawsuits claiming that they mismanaged their retirement plans.

“ERISA requires fiduciaries to manage employee retirement plans prudently,” the petition says. “Throughout the country, fiduciaries have failed in this basic obligation, leading to widespread lawsuits alleging that fiduciaries have breached their duty of prudence by allowing excessive administrative and investment management fees to greatly diminish participants’ retirement accounts in defined-contribution plans.”

Craig C. Martin of Willkie Farr & Gallagher is representing Northwestern University. 

Justice Amy Coney Barrett didn’t take part in the consideration of the petition, as she was still a judge on the U.S. Court of Appeals for the Seventh Circuit when it threw out the case in March 2020. 

Pivotal Software v. Superior Court of CA, by KAILA PHILO

In 2019, shareholders of the cloud platform technology developer Pivotal Software filed a class action alleging that they were misled by their offering documents before they bought into the company.

According to the complaint, Pivotal omitted key details about a downswing in deferred sales and growth when it released their initial public offering in April 2018, going on to sell 42 million shares at $15 per share. The company's product became obsolete in 2019, which sent stock tumbling down to $10.89 by June. In Superior Court for San Francisco County, the plaintiffs invoked the Securities Act of 1933, a law that protects investors of fraud at the federal level.

The Supreme Court will consider whether the Securities Act also applies at the state level.

The investors are represented by Thomas Goldstein at Goldstein & Russell and by Steve Berman at Hagens Berman. Pivotal is represented by Deanne Maynard at Morrison & Foerster.

American Hospital Association v. Xavier Becerra, by BRAD KUTNER

The hospital group claims a reimbursement scheme under Medicare Part B was unfairly altered by the Department of Health and Human Services. 

According to the petition authored by Donald B. Verrilli Jr. with Munger, Tolles & Olson, a 2018 change made by the agency was an abuse of power and the new funding plan led to dangerous underfunding of low-income health care systems. 

The D.C. Circuit found the changes reduced overpayments and were within the agency’s authority. 

“HHS cut the reimbursement rate for 340B hospitals because they can obtain drugs far more cheaply than other hospitals,” Chief Judge Sri Srinivasan wrote for the court last summer. “As HHS saw it, Medicare should not reimburse hospitals more than they paid to acquire the drugs.” 

Srinivasan and his colleagues remanded the case to further explore possible legal errors, but the hospital group appealed and is now asking the high court to decide. 

“By pushing drug costs for these providers below the amount that insurers reimburse, the 340B Program allows participating hospitals to ‘stretch scarce Federal resources as far as possible, reaching more eligible patients and providing more comprehensive services,’" the petition from Verrilli states. “Put another way, Congress designed the 340B Program so that insurers like Medicare would subsidize critical services offered by safety-net hospitals.”

Becerra V. Empire Health Foundation, by BRAD KUTNER

The Justice Department seeks a reversal of a ruling that says Health and Human Services did not follow rulemaking procedures when it adopted a 2005 policy change on how the government calculates annual Medicare reimbursement for hospitals based on the share of low-income patients they treat.

While the Ninth Circuit took issue with the government's interpretation of a provision of the Medicare Act, Acting Solicitor General Elizabeth B. Prelogar wrote in a petition for a writ of certiorari: "that conclusion rests on a misreading of the statutory text and context."

"And as the court recognized, its ruling directly conflicts with decisions of two other courts of appeals that have upheld the Secretary’s interpretation," Prelogar wrote. "This court’s review is warranted to resolve that conflict and to correct the court of appeals’ error."

David Carson v. A. Pender Makin, by Thomas F. Harrison

Parents here have asked the court to strike down a Maine program that provides tuition reimbursement for secular private schools but not for religious schools. The First Circuit approved the program back in October, saying it didn’t violate the free exercise of religion.

Read more about this case at Courthouse News.

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