S.Ct. Cert in 2 cases

On January 12, 2007, the Supreme Court granted certiorari in one case involving attorney fees under federal law and in a second case regarding federal jurisdiction to hear state law claims.

On January 12, 2007, the Supreme Court granted certiorari in one case involving attorney fees under federal law and in a second case regarding federal jurisdiction to hear state law claims.

 

First, the Supreme Court will review the award of attorney fees and the determination of prevailing party status under 42 U.S.C. § 1988 in Wyner v. Struhs, 179 Fed.Appx. 566, 2006 WL 1071850 (11th Cir. 2006).  The plaintiffs had obtained a preliminary injunction to permit them to perform a nude peace symbol, claiming that they would remain hidden behind a cloth screen.  When they performed their nude peace symbol, they did not remain behind the cloth screen.  As a result of these new facts, the plaintiffs lost their motion for a permanent injunction and summary judgment.  The Court of Appeals for the Eleventh Circuit affirmed the award of attorney fees for the preliminary injunction, based on the change in facts, noting that the outcome would have been different if the preliminary injunction had been based on a mistake of law. 

 

In addition, the Supreme Court will review the removal to federal court of claims that a cigarette manufacturer violated the Arkansas Deceptive Trade Practices Act on the basis that the cigarette manufacturer was acting under the direction of a federal officer.  Watson v. Philip Morris Companies, Inc., 420 F.3d 852 (8th Cir. 2005).  There is a conflict among courts of appeals in how to determine whether a private actor is acting under the direction of a federal officer.  The petition for certiorari alleged that the Eighth Circuit’s approach is identical to the Fifth Circuit and similar to the approach of the Ninth and Tenth Circuits, but very different from the First, Seventh, and Eleventh Circuits.  The Solicitor General had filed a brief arguing against certiorari, claiming that the Eighth Circuit’s decision was incorrect but not worthy of review, since it was based on errors of fact regarding the extent to which the FTC exercises comprehensive control over respondent's advertising of light cigarettes.