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Fisherman Wins SarbOx Case

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By the narrowest of margins, the U.S. Supreme Court has spared a fisherman from the overbroad drafting the Sarbanes-Oxley Act, a law that was supposed to be about corporate financial accountability, not throwing fish overboard.  The vote in Yates v. United States is 4-1-4, with Justice Ginsburg writing the plurality opinion and Justice Alito concurring in the judgment in a separate opinion.  These split results typically produce a lot of head-scratching as lawyers and lower courts try to figure out what the heck the law is.

Update:  On an initial quick read, the plurality and concurrence don't seem all that different to me.  The SarbOx law prohibits destroying etc. "any record, document, or tangible object."  Is "tangible object" limited to information-containing objects along the lines of documents and records, or does it extend to any objects whatever?  The plurality and concurrence invoke the standard rules of statutory construction of considering words in their context and considering words in a list to be in the same general category as the others in the list.  The concurrence also notes the title of the section, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy."  Yep.  Titles should get more attention than they do.  I especially dislike the old rule that too many lawyers write into documents that you should ignore the titles.  They are important clues into the genuine intent of a document.

Justice Kagan in dissent insists that "A fish is, of course, a discrete thing that possesses physical form," citing the renowned lexicographer Theodor Geisel by his better-known pen name.*  Pretty sure that's a first.
* Dr. Suess

Update 2:  For those who insist on viewing everything on a one-dimensional liberal-conservative scale, figure this one out:  Justices Ginsburg, Roberts, Breyer, Sotomayor, and Alito for reversal, and Justices Kagan, Scalia, Kennedy, and Thomas for affirmance.  Happy labeling.

The second decision today is an antitrust case, North Carolina State Bd. of Dental Examiners v. Federal Trade Commission.  The case deals with what is "state action" for the purpose of the antitrust law.

Because a controlling number of the Board's decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State, and here that requirement is not met.
I'll have to read the opinion to see if there is any potential spillover effect in criminal and law enforcement cases.  What is "state action" comes up in the search-and-seizure context, for example.

That's likely it for decisions in argued cases until next Tuesday.

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Although it is a long shot, I think there is some language in the "state action" opinion (especially Justice Alito's dissent) that might spillover into the Court's resolution of QP#1 in Ohio v. Clark -- the Confrontation Clause case (to be argued next week) that raises the issue of whether a 3 year-old hearsay declarant is a "witness" under the Clause when his accusatory statement (identifying his abuser) was elicited by a private party school teacher who was subject to a state-imposed mandatory reporting law.

The Court has never determined whether some "state action" (in the creation of the hearsay) is required before a declarant can be deemed a "witness" under the Confrontation Clause. And Clark provides the Court with an opportunity to address this important issue.

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