Weekly Case Digests – February 25, 2019 – March 1, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Scott B. Griffith

Case No.: 18-1310

Officials: ROVNER, SYKES, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

Scott B. Griffith pled guilty to a three-count indictment that charged him with receiving, distributing, and possessing child pornography. The district court sentenced him to 240 months’ imprisonment on each count, to run concurrently, as well as a fifteen-year period of supervised release. On appeal, he asserts that the district court committed procedural error in calculating the guidelines range, and that his resulting sentence is substantively unreasonable. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: P.F., a minor by A.F., his parent, et al. v. Carolyn Stanford Taylor, et al.

Case No.: 17-3266

Officials: SYKES and BARRETT, Circuit Judges, and DURKIN, District Judge.

Focus: ADA Violation

Under Wisconsin’s open-enrollment program, a public-school student can apply to transfer from his resident school district to a nonresident district that has an available space for him. WIS. STAT. § 118.51. The program distinguishes between “regular education and special education spaces.” Id. § 118.51(5)(a)1. If a student with a disability requires special services, a nonresident district may deny the student’s transfer application if it lacks the services or space necessary to meet those special needs. Id. § 118.51(5)(a)4.

This suit concerns a group of disabled schoolchildren whose transfer applications were denied because nonresident districts determined that they could not meet the students’ special needs. The students’ parents, on their children’s behalf, sued the school districts and various state actors seeking injunctive, declaratory, and compensatory relief under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); and the Equal Protection Clause, U.S. CONST. amend. XIV, § 1. They argued that the program unlawfully discriminates against disabled children because of their disabilities. The district judge concluded that the program did not violate federal law and entered summary judgment for the defendants.

We affirm. Differential treatment of special-needs students doesn’t make the program unlawful. Federal law “forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap.” Anderson v. Univ. of Wis., 841 F.2d 737, 740 (7th Cir. 1988). The program makes decisions based on the actual needs of disabled students, so it complies with federal law. And even if we analyze the case as a request for an accommodation, the requested change would fundamentally alter the program, and neither the ADA nor the Rehabilitation Act require fundamental alterations.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Charlotte Robinson, et al. v. Davol Inc., et al.

Case No.: 17-2068

Officials: SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.

Focus: Abuse of Discretion – Expert Testimony

C.R. Bard, Inc., manufactures a surgical mesh patch used to repair hernias by implantation. The patch consists of two pieces of mesh that surround a flexible plastic ring. During a hernia repair, the patch is folded to fit through a small incision, then the plastic ring springs back into its original shape and flattens the mesh against the abdominal wall.

Prior to the recall, Georgia Bowersock underwent surgery to repair a hernia, and her surgeon implanted a Bard patch. Roughly one year later, on October 31, 2006, she died of complications arising from an abdominal-wall abscess. Her estate and family members sued Bard and Davol Inc., the patent holder for the patch, alleging that a defect in the patch caused her death. To establish medical causation, the plaintiffs retained three experts to opine on the defect and the likely cause of Mrs. Bowersock’s death.

But the experts had trouble establishing causation. Unlike defective patches in other injured patients, Mrs. Bowersock’s patch did not adhere to her bowel or perforate her organs with a broken, sharp edge. One expert tried to present a new theory of causation: the patch had “buckled,” forming a stiff edge that rubbed against and imperceptibly perforated her internal organs. The defendants moved to exclude the expert testimony. The judge granted the motion, finding that the “buckling” theory was not sufficiently reliable. Lacking expert testimony to establish causation, the plaintiffs could not prove their case, and the judge entered summary judgment for Bard and Davol.

We affirm. The novel theory of causation was not peer reviewed, professionally presented, consistent with Mrs. Bowersock’s medical records or autopsy, or substantiated by other cases. The judge therefore did not abuse his discretion in excluding the expert testimony. Summary judgment for the defendants necessarily followed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Edward L. Calvert v. National Labor Relations Board

Case No.: 17-1895

Officials: EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge.

Focus: Collateral Estoppel

Edward Calvert was the sole owner and president of E.L.C. Electric, Inc., an electrical contracting company. After a labor organization unsuccessfully campaigned to unionize his company’s workforce, Calvert laid off most of E.L.C. Electric’s rank-and-file electricians, which effectively prevented future unionization attempts. The National Labor Relations Board (“NLRB”) determined that the company violated the National Labor Relations Act (“NLRA”), which prohibits discrimination against workers for exercising their statutory rights. See 29 U.S.C. § 158(a)(3). The Board ordered E.L.C. Electric to compensate the electricians with backpay.

On appeal to the district court, the Board again raised collateral estoppel but failed to analyze the elements of the doctrine or provide citations to the relevant parts of the agency record. The district judge noted these deficiencies and affirmed. We likewise affirm. The Board does not challenge the evidence at trial or the bankruptcy judge’s factual findings. Instead it stakes its entire case on collateral estoppel. But it persists in providing only a generalized discussion of preclusion doctrine that is untethered to specific findings in the NLRB proceeding. That’s not enough to establish that Calvert is precluded from contesting the malice issue under § 523(a)(6).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ronald T. Coleman

Case No.: 17-3636

Officials: WOOD, Chief Judge, and EASTERBROOK and BRENNAN, Circuit Judges.

Focus: Sufficiency of Evidence

Ronald Coleman is a former Chicago police officer who turned to crime. In June 2014, he was assigned to a federal drug investigation task force, which was about to execute numerous search and arrest warrants. Shortly before the operations were set to begin, Coleman telephoned one of the targets—a high school acquaintance—to warn him about the raid. That call led to a single charge of obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2), and the end of Coleman’s law-enforcement career when a jury convicted him. Coleman now argues that he is entitled to a new trial for two primary reasons: evidentiary errors, and the government’s use of allegedly perjured testimony. He also urges that the district court committed procedural and substantive errors when selecting his sentence. Because we find no prejudicial error in any of the district court’s rulings, we affirm both the conviction and the sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ray Fuller v. Matthew G. Whitaker

Case No.: 17-3176

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

Focus: Immigration – Removal Proceedings

Ray Fuller asked the Board of Immigration Appeals to exercise its authority to reopen his removal proceeding sua sponte so that he could present new evidence in support of his request to defer his removal from this country under the Convention Against Torture (“CAT”). Fuller contends that he likely will face torture upon return to his native Jamaica because he is bisexual. The Board previously had sustained an Immigration Judge’s finding that Fuller had not presented a credible case as to his alleged sexual orientation and fear of torture. In support of his motion to reopen, Fuller submitted to the Board several new letters of support from acquaintances attesting to prior incidents in which he was the victim of violence in Jamaica owing to his sexual orientation. In denying this request, the Board explained that “[Fuller’s] motion does not challenge our conclusions regarding his credibility or his eligibility for deferral of removal, and we do not find that his letters of support would materially alter these findings.” A.R. 3 (internal record citation omitted). Because the Board’s stated rationale for disposing of Fuller’s motion reflects a misapprehension of the basis for his request, and because we cannot be confident that the Board’s mistake did not taint the exercise of its otherwise unreviewable discretion over the merits of the motion, we conclude that the Board committed legal error in denying his request for relief. On that basis, we grant Fuller’s petition for review and remand to the Board for further proceedings.

Remanded. Petition Granted

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7^th Circuit Court of Appeals

Case Name: Maurice Lewis v. City of Chicago, et al.

Case No.: 17-1510

Officials: RIPPLE, SYKES, and BARRETT, Circuit Judges.

Focus: 4^th Amendment Violation

Maurice Lewis spent more than two years in pretrial detention in the Cook County Jail based on police reports falsely implicating him for unlawfully possessing a firearm. After the charges against him were dropped, Lewis sued the City of Chicago and six police officers under 42 U.S.C. § 1983 seeking damages for violation of his rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment.

The district court dismissed the suit, ruling that both claims were time-barred. Lewis appealed. Twelve days later the Supreme Court decided Manuel v. City of Joliet (“Manuel I”), 137 S. Ct. 911, 920 (2017), clarifying that detention without probable cause violates the Fourth Amendment “when it precedes, but also when it follows, the start of legal process in a criminal case.” Id. at 918. The Court declined to decide when such claims accrue, instead remanding the case to this court to resolve that issue. Id. at 922. In September the Manuel panel held that a Fourth Amendment claim for wrongful pretrial detention accrues on the date the detention ends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670 (7th Cir. 2018).

The due-process claim is another matter. Manuel I makes clear that the Fourth Amendment, not the Due Process Clause, governs a claim for wrongful pretrial detention. To the extent Hurt v. Wise, 880 F.3d 831, 843–44 (7th Cir. 2018), holds otherwise, it is incompatible with Manuel I and II and is overruled. We therefore reverse the dismissal of the Fourth Amendment claim and affirm the dismissal of the due-process claim, though on different grounds.

Reversed in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Dale E. Kleber v. CareFusion Corporation

Case No.: 17-1206

Officials: WOOD, Chief Judge, and BAUER, FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Statutory Interpretation – ADEA 

After Dale Kleber unsuccessfully applied for a job at CareFusion Corporation, he sued for age discrimination on a theory of disparate impact liability. The district court dismissed his claim, concluding that § 4(a)(2) of the Age Discrimination in Employment Act did not authorize job applicants like Kleber to bring a disparate impact claim against a prospective employer. A divided panel of this court reversed. We granted en banc review and, affirming the district court, now hold that the plain language of § 4(a)(2) makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants. While our conclusion is grounded in § 4(a)(2)’s plain language, it is reinforced by the ADEA’s broader structure and history.

Affirmed. Review Granted.

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7^th Circuit Court of Appeals

Case Name: Susan Nielen-Thomas v. Concorde Investment Services, LLC, et al.

Case No.: 18-2875

Officials: FLAUM, KANNE, and HAMILTON, Circuit Judges.

Focus: Statutory Interpretation – SLUSA

Susan Nielen-Thomas, on behalf of herself and others similarly situated, filed a complaint in Wisconsin state court alleging she and other class members were defrauded by their investment advisor. Defendants removed the case to federal court. They then argued the action should be dismissed because it was a “covered class action” precluded by the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”). See 15 U.S.C. § 78bb(f)(1), (f)(5)(B), amending Securities Exchange Act of 1934. According to Nielen-Thomas, her lawsuit did not meet SLUSA’s “covered class action” definition because she alleged a proposed class with fewer than fifty members. See § 78bb(f)(5)(B)(i)(I). The district court agreed with defendants that Nielen-Thomas’s suit was a “covered class action” because she brought her claims in a representative capacity, see § 78bb(f)(5)(B)(i)(II), and it dismissed her claims with prejudice.

We hold that the plain language of SLUSA’s “covered class action” definition includes any class action brought by a named plaintiff on a representative basis, regardless of the proposed class size. Because this includes Nielen-Thomas’s class action lawsuit and her complaint meets all other statutory requirements, her lawsuit is precluded by SLUSA. We affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony D. Lee. Sr. v. Kevin Kirk

Case No.: 18-1005

Officials: FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.

Focus: Unreasonable Factual Determination

After a bench trial, Anthony Lee was convicted of kidnapping and rape. He is serving sentences that add to 100 years’ imprisonment. The state court judge found that Lee and his friend Burlmon Manley forcibly abducted L.M. about 1 A.M. one day, dragging her into their blue Cadillac while she kicked and screamed. Both Manley and Lee struck and raped L.M. When L.M. resisted, Lee retrieved a pistol from the car’s trunk to make her more cooperative. About 3 A.M. L.M. escaped and ran naked to a nearby house. Police took pictures of L.M.’s bloody face. Lee, the only defense witness, said that L.M. entered the car voluntarily and that he did not touch her sexually—though before trial Lee said that he and L.M. had consensual oral sex. The state judge found that L.M.’s testimony about her ordeal was “very credible” and stated that the pictures showing her injuries, and the testimony of the person who opened the door to L.M., negated the defense of consent. Lee’s convictions were affirmed on direct and collateral review. See People v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).

Our analysis has an additional implication: By deciding the merits without receiving the evidence that Lee sought to have considered, the state judiciary acted unreasonably. Illinois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86 (2011), holds that, when 28 U.S.C. §2254(d)(1) requires a federal court to reject a collateral challenge, the court may not hold an evidentiary hearing and consider evidence not presented to the state judiciary. Illinois wants us to treat this as equivalent to a rule that state courts may insulate their decisions from federal review by refusing to entertain vital evidence. Yet a state court’s refusal to consider evidence can render its decision unreasonable under §2254(d)(2) even when its legal analysis satisfies §2254(d)(1).

Section 2254(d)(2) provides that “a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” lacks the shelter of §2254(d) as a whole. If the affidavits were all Lee had offered to the state judiciary, then its decision may have been a reasonable application of the law to a reasonable determination of the facts. But Lee wanted to introduce more, and the state barred the door. Pinholster concerns the application of §2254(d)(1) to a state court’s legal reasoning; it does not prevent a federal court from finding factual aspects of a state court’s decision unreasonable under §2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that the language of the five affidavits would have been the totality of the witnesses’ testimony had they been called at trial, the state made an unreasonable factual determination under §2254(d)(2), which permits a federal evidentiary hearing under §2254(e)(2).

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Brenda Lear Scheidler v. State of Indiana, et al.

Case No.: 17-2543

Officials: BAUER, MANION, and BRENNAN, Circuit Judges.

Focus: Wrongful Termination – Retaliation Claim

Brenda Lear Scheidler worked for the Indiana Department of Insurance (“IDOI”). She sought accommodations for disabilities related to her mental health. She asked, among other things, that her coworkers not startle her. She received these accommodations for several years. But on May 28, 2013, a frustrated supervisor reached toward Scheidler and said, “I could just strangle you.” An investigation into this workplace incident discovered that several months earlier Scheidler commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.”

IDOI terminated Scheidler. She sued it for disability discrimination, retaliation, and other claims. She lost some claims at summary judgment and she lost the rest at trial. She appeals summary judgment and an evidentiary decision. Finding no reversible error, we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District II

Case Name: One Badger, LLC v. Waukesha County Board of Adjustment

Case No.: 2017AP2523

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Court Error – Zoning Violation  

One Badger, LLC, appeals a circuit court order affirming a decision of the Waukesha County Board of Adjustment (“the Board”). The Board had denied the appeal of an administrative decision to declare a zoning violation with respect to property owned by One Badger. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dayrimus Frankie Porter

Case No.: 2018AP96-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Sentence Modification

Dayrimus Frankie Porter appeals a judgment entered after he pled guilty to two counts of armed robbery as a party to a crime. He also appeals an order denying postconviction relief. He claims he is entitled to sentence modification based on the disparity between his concurrent twenty-five-year sentences and the sentences imposed on his co-defendants Cameron Green and Antown Smith who received, respectively, a sixteen-year term and a seventeen-year term for their roles in the two armed robberies. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Renardo Jackson

Case No.: 2018AP252-CR

Officials: Kessler, P.J., Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Michael Renardo Jackson appeals from a judgment, entered upon his guilty plea, convicting him of one count of second-degree sexual assault of a child. He also appeals from an order denying his postconviction motion for plea withdrawal.  Jackson complains that his plea was not knowing, intelligent, and voluntary because of ineffective assistance from trial counsel. The circuit court denied the postconviction motion without a hearing, concluding the allegations of prejudice were insufficient to warrant a Machner hearing. We agree with the circuit court and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Delores J. Agne v. Patrick C. Rowe. et al.

Case No.: 2018AP587

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Summary Judgment – Issue of Material Fact

Delores Agne appeals a summary judgment dismissing her legal malpractice claim against attorney Patrick Rowe and Swid Law Offices LLC (collectively, “Swid Law”). Agne argues genuine issues of material fact precluded the circuit court from granting Swid Law’s summary judgment motion. We conclude, however, that the undisputed facts show Agne could not prevail on her legal malpractice claim because there was no evidence that Swid Law’s conduct caused her any damages. We therefore affirm the circuit court’s grant of summary judgment in favor of Swid Law. Nonetheless, we reject Swid Law’s assertion that Agne’s appeal is frivolous, and we therefore deny its motion for an award of attorney fees and costs under WIS. STAT. RULE 809.25(3) (2015-16).

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. William Lester Jackson

Case No.: 2018AP896-CR

Officials: Kessler, P.J., Brash and Dugan, JJ.

Focus: Motion to Suppress

William Lester Jackson appeals the judgment of conviction, following a jury trial, of one count of being a felon in possession of a firearm. Jackson argues that the trial court erred in denying his motion to suppress statements he made while in custody. We affirm.

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WI Court of Appeals – District I

Case Name: City of Milwaukee v. Kevin D. Luckett, et al.

Case No.: 2018AP1000

Officials: KESSLER, P.J.

Focus: Non-earnings Garnishment Action

The City of Milwaukee appeals from an order of the circuit court dismissing its non-earnings garnishment action against Kevin Luckett and Paul Simmons, DBA Brother’s II. Because neither Luckett nor Simmons have responded to multiple orders of this court to file a response brief, we summarily reverse the circuit court’s order and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.L.

Case No.: 2018AP2180; 2018AP2181; 2018AP2182; 2018AP2183

Officials: BRENNAN, J.

Focus: Termination of Parental Rights

K.L. appeals from a July 24, 2018 order terminating his parental rights to four of his children, J., S., O., and M., who at the time of the order were aged ten, eight, seven, and five, respectively. He argues that the trial court’s finding that he failed to assume parental responsibility is clearly erroneous because the evidence is not sufficient to support it. He argues that the trial court failed because its finding focused on “only the period since [the children’s] removal [from the family home],” and that the trial court “need[ed] to look at the actions of K.L. throughout the lives of the children as a whole and not simply since their removal.” We have reviewed the record, and it flatly contradicts this view of the trial court’s finding. Ample evidence in the record supports the finding of the trial court. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Nathan Alan Bise

Case No.: 2017AP1662

Officials: BLANCHARD, J.

Focus: Sufficiency of Evidence

This is a statutory refusal hearing case involving a police request that Nathan Bise submit to a chemical test under Wisconsin’s Implied Consent Law. See WIS. STAT. § 343.305(9). Bise, pro se, appeals the circuit court’s order finding that Bise unlawfully refused to submit to a chemical test of his breath after his arrest on a charge of operating a motor vehicle while intoxicated. Bise asserts that his “main focus” is that the court lacked a sufficient factual basis to find that he improperly refused to submit to the requested test. Bise makes two additional arguments: (1) that the court “deprived” him of his “right to defend” himself, and (2) that the State failed to produce sufficient evidence that police had probable cause to believe that he had operated while intoxicated, which is a predicate to a finding of improper refusal. I reject all three arguments and accordingly affirm. Any additional argument that I do not specifically address is rejected because it is inadequately briefed and lacks discernable merit. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

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WI Court of Appeals – District IV

Case Name: Jeremy Allen Black v. Della Mae Black

Case No.: 2018AP79

Officials: Lundsten, P.J., Blanchard, and Kloppenburg, JJ.

Focus: Divorce – Reconsideration Motion Denied – Attorney Fees

Jeremy Allen Black appeals a circuit court order that granted a protective order to Della Mae Black in this family law case. The order prevented Jeremy from obtaining discovery of Della’s past employment and income information.  Jeremy also appeals the court’s order denying reconsideration and imposing attorney fees against Jeremy. Jeremy contends that the circuit court granted the protective order based on its misinterpretation of the judgment of divorce. We agree with Jeremy that the court granted the protective order based on a misinterpretation of the judgment of divorce. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: Capital One Bank (USA), N.A., v. Lindsey McCune

Case No.: 2018AP527

Officials: KLOPPENBURG, J.

Focus: Court Error – Abuse of Discretion

Lindsey McCune, pro se, appeals the circuit court’s order denying her motion to reopen the default judgment entered in favor of Capital One Bank (USA), N.A. in this small claims action for payment on an alleged delinquent credit card account. I conclude that McCune fails to show that the court erroneously exercised its discretion in denying her motion to reopen and, therefore, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Steadfast Insurance Company v. Greenwich Insurance Company

Case No.: 2019 WI 6

Focus: Insurance Claim – Breach of Duty to Defend

We review a decision of the court of appeals affirming the circuit court’s grant of summary judgment to Steadfast Insurance Company (Steadfast). Summary judgment granted Steadfast the right to recover from Greenwich Insurance Company (Greenwich) based on Steadfast’s and Greenwich’s relationships with Milwaukee Metropolitan Sewerage District (MMSD), who was sued for alleged negligent inspection, maintenance, repair, and operation of Milwaukee’s sewerage system.

MMSD tendered its defense to both Steadfast and Greenwich. Steadfast accepted the tender; Greenwich did not, claiming that its policy was excess to Steadfast’s based on its “other insurance” clause. Steadfast disagreed and sued Greenwich to recover the defense costs it paid to MMSD and the attorney fees incurred in suing Greenwich to reimburse it for those defense costs.

First, we conclude that Greenwich, who insured the risk that United Water Services Milwaukee, LLC (United Water) would negligently perform services for MMSD, thereby causing damage, and Steadfast, who for a different period of time insured the risk that Veolia Water Milwaukee, LLC (Veolia) would negligently perform services for MMSD, thereby causing damage, were both primary and successive insurers in regard to MMSD, their common additional insured.  Second, we conclude that Greenwich breached its contractual duty to defend MMSD. Third, we conclude that Steadfast’s contractual subrogation claim against Greenwich was timely filed as it comes within the six-year statute of limitations for contract actions.

Fourth, we conclude Steadfast had a contractual duty to defend MMSD that was not abrogated by Greenwich’s breach of its contractual duty to defend MMSD. Therefore, we apply a prorata allocation of defense costs Steadfast paid to MMSD based on Steadfast’s and Greenwich’s respective policy limits of $30 million and $20 million. Fifth, and finally, we conclude that Steadfast is entitled to recover attorney fees from Greenwich due to Steadfast’s stepping into the shoes of MMSD through contractual subrogation to force Greenwich to pay defense costs.

Accordingly, we affirm the decision of the court of appeals in part and reverse it in part.

Affirmed in part, reversed in part.

Concur: A.W. BRADLEY, J. concurs and dissents, joined by DALLET, J. (opinion filed). R.G. BRADLEY, J. concurs and dissents (opinion filed).

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., et al.

Case No.: 17-1229

Focus: Statutory Interpretation – Leahy-Smith America Invents Act

The Leahy-Smith America Invents Act (AIA) bars a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U. S. C. §102(a)(1). This case requires us to decide whether the sale of an invention to a third party who is contractually obligated to keep the invention confidential places the invention “on sale” within the meaning of §102(a).

More than 20 years ago, this Court determined that an invention was “on sale” within the meaning of an earlier version of §102(a) when it was “the subject of a commercial offer for sale” and “ready for patenting.” Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 67 (1998). We did not further require that the sale make the details of the invention available to the public. In light of this earlier construction, we determine that the reenactment of the phrase “on sale” in the AIA did not alter this meaning. Accordingly, a commercial sale to a third party who is required to keep the invention confidential may place the invention “on sale” under the AIA.

Affirmed

Dissenting:

Concurring: THOMAS, J., delivered the opinion for a unanimous Court.

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