READ THAT BACK: Cold Case, Methane, and Pirate's Booty

What day is it? Seriously. Having July 4th fall on a Tuesday has the Court Reporter’s internal clock a bit shifted. Last Monday was a Friday, and Wednesday was really a Monday, so logically, today must be…. Well, whatever day it is, it’s time for READ THAT BACK and the best in legal news from the past week. (And FYI, it’s Monday.)

Cold Case Reopened: No, not that one. Better! This one’s about bankruptcy! A Chapter 7 bankruptcy case was reopened after more than 80 years—proving once and for all that bankruptcy can be interesting. (Kidding! The Court Reporter likes to tease his bankruptcy colleagues, but it’s all in good fun.) In this case, millions of dollars’ worth of gas rights in western Virginia were recently discovered to be owned by a long defunct lumber company, and the trustee is going to have to do genealogical research to find heirs of the creditors and shareholders. Maybe the Court Reporter would pay more attention to relative’s emails about research if there were millions out there to be had!

You Don’t See That Every Day: No, not just two bankruptcy stories in READ THAT BACK, but also a court deciding to discharge student loan debt. Kristin Price, a single mother of three kids, proved that her financial condition is unlikely to improve for a “significant portion of the repayment period” on her $25K+ student loans. The court acknowledged that it’s application of the Brunner test for determining “undue hardship”—the standard for wiping out student loan debt—might strike some as “unorthodox,” but that it’s time for courts to start rethinking how they apply Brunner. And…no discussion of bankruptcy would be complete without this.

Remarkably Unremarkable: The Supreme Court usually goes out with a bang just before the Fourth of July. This year was more like a yawn. With their ok-let’s-just-say-it boring docket, the justices were able to come to agreement in an unusual number of cases this year. But not so fast when looking ahead to next term (subscription required). The deck is already stacked with Trump’s travel ban, the same-sex wedding cake case, and a redistricting case that could have huge implications.

No Phones Allowed: Chief Justice John G. Roberts said in a landmark 2014 Supreme Court case that mobile phones are so pervasive “that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” But the proverbial visitor from the Red Planet never witnessed an execution in Alabama, where prison regulations prevent lawyers—or anyone—from having a phone. Access to phones—in order to reach a judge in the event an execution goes awry—is yet another divisive issue surfacing in the debate over the death penalty. The debate is closely associated with the controversy over the drugs used to conduct executions by lethal injection and whether or not they violate the Eighth Amendment.

Methane Whiplash: The D.C. Circuit revived Obama-era regulations governing methane emissions (subscription required) and took the EPA to task for unilaterally suspending them without going through the proper rulemaking process. The EPA suspended the regs just days before compliance deadlines were set to hit, and now oil and gas drillers are back in compliance mode. Additionally, as the Washington Post points out, the ruling could affect other agencies—e.g. Interior and Labor—that have sought to delay implementation of Obama-era rules. In other words…

Head Scratcher: Sometimes it’s hard to know what to think about concussion science and the litigation that springs up from the issue. Just this week we got news about one study concluding that high school football players in 1950s Wisconsin didn’t appear to have higher rates of cognitive deficits and depression than their classmates who didn’t play football. Then, in Washington state, a court concluded that a high school football coach may be liable for a player’s death where the coach allegedly failed to comply with a state concussion protocol. There’s really nothing funny about this issue, so we’ll leave it at that. However, there is a lot funny about the 1991 classic and Scott Bakula vehicle “Necessary Roughness” including this gem.


  • Sometimes with all the leaks in Washington, it feels like this (you’re welcome). Consider the Supreme Court your water-tight ray of sunshine.
  • We all know there’s only one hedge that really matters (one of the Sonic and porcine variety), but now there’s a way for law firms to hedge their litigation risks.
  • The full Eleventh Circuit won’t revisit a panel decision (subscription required) that said workplace discrimination against gays and lesbians isn’t barred as sex discrimination under Title VII. The court is now at odds with the Seventh Circuit, making the issue ripe for SCOTUS review.
  • A bill to limit damages in medical malpractice suits faces a not-so-great prognosis (subscription required). Touted as part of an Obamacare replacement, the measure got through the House, but isn’t likely to find many takers on the other side of the Capitol. I know one person who will be very happy.

One ‘Argh’-ravating Thing: A class complaint in California alleges that popular snack food “Pirate’s Booty” is packaged in a way that makes it look like there’s more booty in the bag. Such “slack fill” suits are a booming area of litigation, but the Court Reporter still wants someone to do something about fast food burgers not looking like the picture on the menu!