In this month’s podcast, Kian and Mark address two cases dealing with two completely different but equally complex areas of federal law: securities litigation and Medicaid.

In Alcarez v. Akorn, the Court examined the avenues of federal review of so-called “mootness fees” in securities litigation. These fees arise when securities plaintiffs sue over lack of disclosures but the case is rendered moot when the company later provides the disclosure. Mootness fees then sometimes become part of the settlement of the now moot litigation. Alcarez provides a roadmap for how shareholders may intervene and oppose the payment of these fees.

The second case – Saint Anthony Hospital v. Whitehorn – came back to the Seventh Circuit on remand from the Supreme Court. The opinion addressed whether a hospital could invoke Section 1983 against state regulators to compel them to enforce timely payment by managed care organizations. It provides an in-depth examination of when plaintiffs may bring Section 1983 claims to enforce federal statutes enacted under the Spending Clause.

Mark and Kian return to discuss two of the Seventh Circuit's March 2024 opinions.

In Garrick v. Moody Bible Institute, a split 2-1 panel (Judge St. Eve writing and joined by Judge Hamilton, with Judge Brennan dissenting) refused to exercise appellate jurisdiction over a district court order rejecting a motion to dismiss that was based on the church autonomy doctrine. Because they do not end the proceedings, decisions denying motions to dismiss are interlocutory and thus generally not immediately appealable. Under the collateral order doctrine, however, federal appellate courts will hear an appeal from an interlocutory order where the order is conclusive, resolves important questions separate from the merits, and is effectively unreviewable on appeal from the final judgment. The orders that fall into this category often involve "immunities" – such as prosecutorial immunity, sovereign immunity, and qualified immunity. The defendant in this case argued that the church autonomy doctrine recognizes an immunity that triggers the collateral order doctrine. Judge Brennan agreed, but the majority held otherwise, concluding that the church autonomy doctrine does not "confer immunity from trial in every employment discrimination suit."

The second case, Gerlach v. Rokita, addresses a different sort of immunity – sovereign immunity. The plaintiff argued that the State of Indiana violated the Takings Clause by failing to compensate her for interest accrued on her unclaimed property while that property was held by the State. While the unanimous panel acknowledged that the Seventh Circuit has previously held that the Takings Clause requires paying such interest, it rejected the plaintiff's claim: It held that the plaintiff's claims for "monetary relief for past Takings Clause violations ... are, in effect, claims against the State of Indiana itself and thus barred" by "Indiana’s sovereign immunity."

In this episode, Mark and Kian chat about two opinions the Seventh Circuit issued in February 2024.

The first case, Chicago Joe’s Team Room v. Village of Broadview, is a long-running Section 1983 case brought by a would-be adult-entertainment venue against the Chicago suburb that prevented it from opening. In 2008, the district court found the suburb violated the First Amendment, and the parties then spent more than a decade litigating damages, which were based on a lost-profits theory. The venue eventually failed to prove lost-profits damages because the district court excluded all of its evidence, which mostly consisted of lay opinion testimony from the owner of the plaintiff business. The Seventh Circuit affirmed, explaining that the owner’s lay opinion testimony was correctly excluded under Rule of Evidence 701 because he could not “properly base his lost-profits opinions on his knowledge obtained in day-to-day management of the company” (since the company never opened).

In the second, Bryant v. Chupack, Judge Easterbrook takes readers on a brief but informative tour through the Rooker-Feldman doctrine and claim preclusion. The Rooker-Feldman doctrine holds that because only the Supreme Court can review the judgments of state courts, district courts lack jurisdiction to hear challenges to state-court decisions. The district court dismissed Bryant on those grounds, but the Seventh Circuit reversed: Rooker-Feldman did not apply because the “plaintiffs had lost a battle in state court but had not yet lost the war.” Claim preclusion, however, barred the plaintiffs’ claims on the merits: Because the plaintiffs could have presented their federal constitutional claims in the state-court case, claim-preclusion principles mean they were “not free to move what amounts to an appellate argument to a different judicial system.”

The two cases Mark and Kian discuss in this episode each raise a tricky but important question.

The first, Green Plains Trade Group, LLC v. Archer Daniels Midland Co., addresses how federal courts should discern the content of state law. The landmark Supreme Court case Erie Railroad v. Tompkins says federal courts should try to predict what the state supreme court would do. And in implementing this rule, the Seventh Circuit (like other federal appellate courts) has cautioned district courts from accepting novel state-law theories. In Green Plains, the Seventh Circuit clarified when this “maxim” against novel theories applies—only where “the evidence concerning the content of state law is in equipoise.”

The second case, U.S. ex rel Health v. Wisconsin Bell, concerns what counts as a “claim” under the False Claims Act. And the Seventh Circuit held—in an acknowledged split from the Fifth Circuit—that an application for funds can be a “claim” even if the funds at issue do not come from the U.S. Treasury. Instead, the Seventh Circuit concluded that “the federal government can be deemed to ‘provide’ money for purposes of the False Claims Act by maintaining an active role in its collection and distribution.”

In this month’s very special episode of Seventh Circuit Roundup, hosts Kian Hudson and Mark Crandley interview legendary Seventh Circuit litigator Tom Fisher. Tom recently concluded nearly two decades of service as Indiana’s solicitor general, a role that frequently led Tom to the Seventh Circuit courthouse. Indeed, few if any lawyers have argued more high-profile cases before the Seventh Circuit. In this interview, Tom shares his thoughts on how to find one’s way into appellate advocacy, tips for appellate litigators, Seventh Circuit-specific wrinkles, and more.

The eighth episode of Seventh Circuit Roundup examines two cases dealing with important federal procedural statutes.

First, In Re Venequip reviewed the requirements for a party in a dispute obtaining discovery in federal court under 28 USC 1782(a). In Venequip, the Seventh Circuit examined the requirements for obtaining discovery for an international suit and reviewed the role played by forum selection and choice of law clauses in that analysis.

Second, the Court in Sudholt v. Country Mutual Insurance Co. considered whether a class action should be remanded under the internal affairs exception of the Class Action Fairness Act in a case where all parties except one were nondiverse. Sudholt examined the role of the internal affairs exception in these circumstances, particularly where the sole diverse defendant was a fiduciary.

In the seventh episode of Seventh Circuit Roundup, Kian and Mark address cases from very different areas of the law that offer some practical insights for those practicing in the Seventh Circuit.

First, Kian discusses Finch v. Treto, which concerns the circumstances when a district court might decline to issue an injunction even in the face of a potential constitutional violation. Finch concerned a Commerce Clause challenge to Illinois’ licensing system for cannabis dispensaries. The Court declined to require the district court to enjoin all licenses granted to dispensaries. Kian discusses the circumstances that led to that conclusion and how practitioners can avoid falling into situations where injunctive relief might not be available.

Mark addresses U.S v. Diggs, which reviews the various privileges applicable to married couples and examines the joint participation exception to the spousal privilege. Of particular note is Judge Scudder’s dissent suggesting the Seventh Circuit should revisit whether the joint participation exception should continue to apply in light of intervening Supreme Court cases.

In its sixth episode, Seventh Circuit Roundup covers two August opinions—Bail Project v. Indiana Department of Insurance and St. Augustine School v. Underly.

The first case is a Free Speech Clause challenge to an Indiana law that requires charitable bail organizations to register with the State and limits for whom such organizations can pay cash bail. A divided 2-1 panel of the Seventh Circuit upheld the law, concluding that “paying cash bail does not inherently express any message,” since “a reasonable observer would not understand” the “payment of cash bail at the clerk’s office as an expression of any message about the bail system.”

The second case is the latest in a long-running saga (including multiple Seventh Circuit decisions, as well as decisions from the U.S. Supreme Court and the Wisconsin Supreme Court) involving a suit brought by parents against state officials who denied the parents school transportation benefits. Although the parents focused their challenge on federal constitutional grounds, the Seventh Circuit ultimately sided with the parents on state law grounds. The court held that the parents could not force the Seventh Circuit to answer the federal constitutional question by forfeiting their state law arguments, explaining that plaintiffs “have no right to demand that the court’s decision be based on one theory versus another.”