Case Update: Midland Funding v. Madden – Supplemental Brief

June.08.2016

As we reported in our case update on May 26, the Solicitor General filed its brief expressing the Government’s views on the cert-worthiness of Midland Funding v. Madden. Yesterday, Midland filed a supplemental brief with the Court responding to the Solicitor General’s views. Midland emphasizes the clarity and firmness of the Solicitor General’s assessment that the Second Circuit’s decision is incorrect. Midland further argues that despite the Solicitor General’s ultimate recommendation that the Court decline review, the Court should nevertheless take the case. The brief argues that the case “presents a question that is critical to the functioning of the national banking system and to the availability of consumer credit,” and that the issues need resolution now, not later.

The Supreme Court is now poised to decide whether to grant the petition. A docket entry issued yesterday indicates that the case has been distributed for the Court’s June 23 conference. At that conference, the Court will discuss whether to grant or deny cert. or postpone consideration of the petition until the next conference (set for September 26). Unless at the June 23 conference the Court decides to hold the petition for further consideration, we expect that an order list indicating whether the petition has been granted or denied will be issued the following Monday, June 27.

Authors

Robert Loeb Partner, Supreme Court & Appellate, Bankruptcy Litigation

Washington, D.C.

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D:+1 202 339 8475
E: [email protected]

Practice:

Finance Sector
Supreme Court & Appellate
Bankruptcy Litigation
Complex Litigation & Dispute Resolution
Energy
Litigation & IP
White Collar, Investigations, Securities Litigation & Compliance

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Robert Loeb Partner

Washington, D.C.

The breadth and depth of Bob's appellate experience, and his consistent track record of success in high-stakes matters, are why clients, including top tech and energy companies, trust him with their most important cases.

The National Law Journal’s Litigator of the Week column recently recognized Bob’s appellate major wins in energy and product liability cases for Broadreach Power and Johnson & Johnson. Bob’s recent victories also include Fifth Circuit wins for energy clients Cheniere and Eni. In the Cheniere-Midship case, Bob obtained an emergency stay from the court of appeals of the regulating agency proceedings and, then after oral argument, achieved a full victory. And for Eni, Bob convinced the Fifth Circuit to vacate a $300M judgment against Eni in a dispute with another energy company. These types of big wins in the most challenging cases show why both Chambers and Legal 500 rank Bob among the Country’s top appellate advocates.

Bob has argued before the Supreme Court multiple times (including a 9-0 victory regarding application of the Fourth Amendment to rental cars), and has filed hundreds of briefs in the Supreme Court. He has also handled cases in highest state courts in California, New York, Maine, Kentucky and New Jersey.

Before joining Orrick, Bob served as one of the leaders of an elite appellate group at the Department of Justice. There, in addition to major national security, commercial, and administrative law, Bob supervised bankruptcy appeals. At Orrick, Bob has continued to handle big ticket bankruptcy matters, such as a billion-dollar dispute over whether DHL’s claim was discharged by United’s bankruptcy, appeals from the City of Stockton bankruptcy confirmation, and a Ninth Circuit matter involving the interplay of the Takings Clause and bankruptcy law.

Bob’s recent work includes matters for Johnson & Johnson, Avon, Microsoft, Eni, Cheniere Energy, Freeport LNG, Broadreach Power, LS Power, Exxon, Medidata, Renco, MSC Cruise Line, Golden 1 Credit Union, Credit Suisse, TravelCenters of America, Gannett, and the City of Stockton.

Christopher J. Cariello Partner, Supreme Court & Appellate, Litigation & IP

New York

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D:+1 212 506 3778
E: [email protected]

Practice:

Supreme Court & Appellate
Litigation & IP

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Christopher J. Cariello Partner

New York

Chris has represented major ISPs in high-stakes copyright litigation, tech titans pushing the cutting edge, national retailers with key trademarks on the line, and global manufacturers facing class action risk. He has authored dozens of appellate briefs, winning results in federal and state courts of appeals and the U.S. Supreme Court. And he is a consummate team player when partnering with trial teams to craft winning legal strategies and themes, brief dispositive motions, win key legal and evidentiary rulings at trial, and construct a record with an eye towards appeal.

Chris is most passionate about the novel issues that arise at the intersection of tech and commerce, implicating the balance between creation, innovation, and competition. Whether it's the DMCA and copyright's intermediary liability doctrines, generative AI, data scraping, or trade secrets, he relishes litigating in the gray areas, presenting what the law ought to be as plain common sense. Chris also has a wealth of experience in class action defense in both trial and appellate courts, including several appellate victories defending the denial of class certification. And his broader experience includes bankruptcy, telecommunications, constitutional law, and various issues confronting Fintech companies.

Chris maintains an active pro bono practice. He led a team that prevailed in both federal district court and in the Second Circuit in one of the nation's most closely watched police transparency cases. The year before, he argued and won a precedent-setting parole appeal in New York’s Appellate Division on behalf of a former juvenile offender. And he has won victories for clients in immigration cases and cases presenting novel legal issues under freedom of information laws.

Prior to joining Orrick, Chris was a law clerk to Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and Chief Judge Carol B. Amon of the U.S. District Court for the Eastern District of New York.