Category Archives: U.S. Supreme Court (SCOTUS)

U.S. Supreme Court Rejects Anti-Terrorism Act Claims Against Social Media Platforms Used By ISIS

by Carmine D. Boccuzzi Jr., Mark E. McDonald, Leila Mgaloblishvili, Miranda Herzog, Nowell D. Bamberger, Chase D. Kaniecki, and Rathna Ramamurthi

From top left to right: Carmine D. Boccuzzi Jr., Mark E. McDonald, Leila Mgaloblishvili, and Miranda Herzog.
From bottom left to right: Nowell D. Bamberger, Chase D. Kaniecki, and Rathna Ramamurthi.
(Photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

On May 18, 2023, the Supreme Court issued a decision in Twitter, Inc. v. Taamneh, et al.,[1] unanimously rejecting claims against Twitter, Facebook and Google (as the owner of YouTube) for allegedly aiding and abetting ISIS in its commission of terrorist attacks. Plaintiffs, who were injured in an ISIS-sponsored terrorist attack on the Reina nightclub in Istanbul in 2017, alleged that Twitter, Facebook and Google were liable under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a), as amended by the Justice Against Sponsors of Terrorism Act (“JASTA”), 18 U.S.C. § 2333(d)(2), because they allegedly knowingly allowed ISIS to use their social media platforms and “recommendation” algorithm tools, profited from advertising revenue on ISIS content, and failed to take sufficient steps to remove ISIS-affiliated accounts. The Supreme Court held that these allegations were insufficient to establish aiding and abetting liability under JASTA, in a decision that substantially clarifies the circumstances under which companies in the U.S. who offer widely-available and generalized services may be liable for complicity in terrorist attacks.

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The Supreme Court’s Upcoming Affirmative Action Decision: Potential Implications for Private-Sector Employers

by Jyotin Hamid, Simone S. Hicks, Mary Beth Hogan, Arian M. June, Tricia Bozyk Sherno, Rachel Tennell, and Katelyn Masket

Top row from left to right: Jyotin Hamid, Simone S. Hicks, Mary Beth Hogan, and Arian M. June.
Bottom row from left to right: Tricia Bozyk Sherno, Rachel Tennell, and Katelyn Masket.
(Photos courtesy of Debevoise & Plimpton LLP)

The Supreme Court of the United States is expected to issue a widely anticipated decision next month concerning the permissibility of race-conscious affirmative action in higher education in the Harvard College and University of North Carolina cases.[1] Although these cases arise in the context of education, not employment, and do not formally concern laws governing private-sector employment, we expect that the decision may have far-reaching implications for how courts, lawmakers, employers, and employees address efforts to promote diversity in private-sector workplaces. In particular, the decision may have an impact on how employers navigate the line between permissible efforts to promote workplace diversity and avoiding so-called “reverse discrimination” lawsuits brought by employees who may claim that they are disadvantaged by such efforts.

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Supreme Court Overturns Wire Fraud Conviction of Private Citizen Under Honest- Services Theory After Holding That the Jury Instructions Given Were Too Vague

Editor’s Note: The NYU Law Program on Corporate Compliance and Enforcement (PCCE) is following the recent U.S. Supreme Court decisions in Percoco v. United States and Ciminelli v. United States, which narrow the scope of honest services fraud and eliminate the so-called “Right to Control” theory in federal fraud cases, respectively. Together, these two cases continue a trend of circumscribing the federal government’s ability to prosecute domestic public corruption in the United States.

by Thomas H. Dupree Jr., Bradley J. Hamburger, Allyson N. Ho, Brad G. Hubbard, Lucas C. Townsend, and Julian W. Poon

Top row from left to right: Thomas H. Dupree Jr., Bradley J. Hamburger, and Allyson N. Ho. Bottom row from left to right: Brad G. Hubbard, Lucas C. Townsend, and Julian W. Poon. (Photos courtesy of Gibson, Dunn & Crutcher LLP)

“‘[T]he intangible right of honest services’ codified in § 1346 plainly does not extend a duty to the public to all private persons.” – Justice Alito, writing for the Court

The Supreme Court overturned a wire fraud conviction based on an honest-services theory. The Court reasoned that while such a theory can potentially cover private persons, it does not extend to all private persons. The jury instructions given in this case were too vague because they failed to define the intangible right to honest services with sufficient definiteness.

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Supreme Court Repudiates “Right-to-Control” Theory Under the Federal Wire Fraud Statute

by Helen V. Cantwell, Andrew J. Ceresney, Courtney M. Dankworth, John Gleeson, David A. O’Neil, Winston M. Paes, Bruce E. Yannett, Douglas S. Zolkind, and Scott M. Caravello

From top left to right: Helen V. Cantwell, Andrew J. Ceresney, Courtney M. Dankworth, John Gleeson, and David A. O’Neil. From bottom left to right: Winston M. Paes, Bruce E. Yannett, Douglas S. Zolkind, and Scott M. Caravello.
(Photos courtesy of Debevoise & Plimpton LLP)

On May 11, 2023, the United States Supreme Court issued its latest opinion in a series of decisions narrowing the scope of the federal fraud statutes. In that case, Ciminelli v. United States, the Court foreclosed prosecutors’ ability to pursue fraud charges for misrepresentations that did not result in financial harm, but instead deprived victims of information that may have been useful in deciding how to use assets. In repudiating this theory, known as “right-to-control,” a unanimous Court held that the federal fraud statutes touch only schemes aimed at traditional property interests, like money, and not “mere information.” To have held otherwise would have meant that “almost any deceptive act could be a crime.”

Going forward, the Department of Justice will not be able to prosecute a defendant for engaging in mere deceptive or unethical conduct, but must additionally prove that the defendant’s objective was to deprive the victim of money or property.

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Experts React to Supreme Court Decisions on Honest Services Fraud and the “Right to Control” Theory

From left to right: Carrie Cohen, Brian Jacobs, Brendan Quigley, Isabelle Kirshner, and Brian Linder (Photos courtesy of the authors’ firms)

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Supreme Court Rejects Challenge to California Law Alleged to Burden Out-of-State Industry

by John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Jacob Miller

From left to right: John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Jacob Miller (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Recently, a divided Supreme Court upheld the constitutionality of a California law banning the in-state sale of meat from pigs confined under specified “cruel” conditions. Petitioners — two industry organizations — had alleged the law violates the Commerce Clause by imposing substantial costs on out-of-state producers and impermissibly regulating the national pork market. This challenge marked an effort by the industry to expand the so-called “dormant” Commerce Clause, which polices states’ ability to enact regulations with interstate impact when Congress has chosen not to act in the field sought to be regulated by a state. That effort failed. In National Pork Producers Council v. Ross, all nine Justices rejected petitioners’ argument that there exists an “almost per se” rule forbidding enforcement of state laws that have the practical effect of imposing prescriptions on commerce outside the state.

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