Scorin' with Scura: March 19, 2013

Staring this week, The Court Reports section would like to introduce a new feature, discussing a different type of court…basketball!

Money ruins everything. Well, Big East basketball, at least.

If you grew up loving basketball in the Northeast in the past 30 years, you inevitably dreamt of playing in the Big East Tournament at Madison Square Garden. No one will ever know how many shots in backyards, playgrounds and YMCA’s were taken as the shooter imagined leading his team on a miracle run through college basketball’s best conference tournament in the mecca of basketball.

Saturday night saw the last game  of the Big East as we know it. Next year conference mainstays Syracuse, Pittsburgh, Rutgers, and Notre Dame will leave for the Atlantic Coast Conference, leaving the Big East’s future in doubt. The conference’s seven remaining Catholic schools (Georgetown, DePaul, Marquette, Providence, Seton Hall, St. John’s, and Villanova) will form a conference that may keep the “Big East” moniker and may also include some combination of Butler, Central Florida, Cincinnati, Creighton, Louisville, South Florida, Xavier, and UConn.

Regardless, an era of excellent college basketball is over, sacrificed at the altar of mediocre college football and the almighty dollar.

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United States v. Appelbaum and other recent circuit decisions

WikiLeaks defendants were denied their disclosure request due to government interests in not tipping off additional suspects.United States v. Appelbaum, No. 11-5151, 2013 U.S. App. Lexis 1746 (4th Cir. Jan. 25, 2013).

The Electronic Communications Privacy Act of 1986 criminalized “the unauthorized access of the contents and transactional records of stored wire and electronic communications.” At the same time, the Act also allowed law enforcement to obtain electronic records after obtaining a warrant under the applicable rules and a reasonable suspicion standard. The government does not need to notify the individuals when obtaining such records.

After obtaining a warrant, the government required Twitter to release three users’ (accused of criminal conduct in relation to WikiLeaks) “names, usernames, personal contact information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications” within certain dates. The suspects filed a motion to unseal the request for documents (the “request”). The magistrate judge denied the request, and the district court and the Court of Appeals for the Fourth Circuit both affirmed.

The suspects argued that both the First Amendment and the common law subject the request to a right of public access. The Fourth Circuit held that such a right applies only to judicial records. Thus, the common law presumption of access applied. However, the Fourth Circuit found that the First Amendment did not create a presumption of access, since neither prong of the two pronged “tradition and logic” test was met: there was no tradition of access since the law was only passed in 1986, and logic dictates that public access does not play a significant role in the investigative process.

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Amgen v. Connecticut Retirement Plans and Trust Funds: Court rules on the extent materiality must be proved at the class certification state of a securities litigation.

This case arises from a suit brought by Connecticut Retirement Plans and Trust Funds against Amgen Inc., a pharmaceutical company that manufactures a number of drugs used to treat anemia. Connecticut Retirement alleged in its complaint that Amgen misrepresented and downplayed rising concerns over potentially harmful side effects of these drugs, including the potential that they caused cancerous tumors in a small percentage of patients, which thereby inflated Amgen’s stock price, in violation of Section 10(b) of the Securities and Exchange Act.

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Smith v. United States: The Court considers the scope of the federal conspiracy statute

In Smith v. United States, the ultimate issue is which party has the burden to prove withdrawal from a conspiracy prior to the statute of limitations. The circuit courts have been split 5-5 on this issue.

A number have held that once a defendant has met his or her burden of production that he or she has withdrawn prior to the statute of limitation, the burden of persuasion then switches to the prosecution to disprove withdrawal, under the theory that due process requires that each element of an offense be proven by the government beyond a reasonable doubt.

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Fisher v. University of Texas at Austin: Court hears oral arguments in affirmative action case.

Last week, the Court heard oral arguments in Fisher v. University of Texas at Austin. This case may have significant implications for the use of affirmative action programs in the admissions decisions of public universities.

Fisher will readdress a program similar to the one it approved in 2003 in Grutter v. Bollinger. There, the Court, in a 5-4 decision, held that the affirmative action program employed by the University of Michigan Law School, which considered race as a “plus” factor among others in attempting to promote diversity within its student body, was consistent with the Equal Protection Clause.

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