Supreme Court Action: Affirmative Defense Burdens And Case And Controversy Issues

The Supreme Court is really feeling the love as the two opinions it released this morning are both from a unanimous court, just as the two from yesterday.  The first of these is Smith v. United States (11-8976).  Smith was convicted in federal court of conspiracy related to the sale of drugs.  He claimed to have withdrawn from the conspiracy before the statute of limitations had run.  The trial judge instructed the jury that once the government had proven its case the burden for proving withdrawal before the statute of limitations had passed was up to Smith.  Justice Scalia writing for the Court stated that the burden does not belong to the government to prove Smith hadn’t withdrawn unless the affirmative defense disproves an element of the crime.  Withdrawal presupposes that the defendant was part of the conspiracy and only relieves the defendant of responsibility for post-withdrawal activities of the conspirators.  There is no constitutional requirement to shift the burden to the government.  Congress could have done so via statute but chose not to do so.

The second case is Already, LLC v. Nike, Inc. (11-982).  Its procedural history is a bit complicated.  Nike sued Already for trademark violation due to similarities in Already’s athletic shoe line to those of Nike’s trademarked Air Force 1 line.  Already countersued to invalidate Nike’s mark.  Nike issued a broad covenant not to sue Already based on any existing or future designs that constituted “colorable imitations” of Already’s current products.  It dismissed its claims against Already with prejudice and moved to dismiss the counterclaim without prejudice.  Already resisted that motion. The District Court found that the case was moot and dismissed the claim and the Second Circuit upheld the dismissal.

The Supreme Court upheld the result based on the fact there was no case or controversy for the court to decide at that point.  It noted that a party cannot shield itself via covenant by voluntary dismissing a case and picking up the same conduct again later.  The covenant that Nike issued, however, was so broad that it basically covered all possibilities.  Already did not offer any evidence at trial or on appeal that it planned to develop a shoe line that fell outside the covenant but could conceivably violate Nike’s trademark triggering a lawsuit.  Already’s alternative theory, backed by affidavits, was that investors were unwilling to invest in the company as long as there was a possibility of suit, thus keeping the controversy alive in the counterclaim.  The Court said conjectural claims does not invoke jurisdiction of the federal courts.  Chief Justice Roberts issued the opinion for a unanimous court.  Justice Kennedy filed a concurring opinion joined by Justices Thomas, Alito, and Sotomayor.  [MG]