U.S. Court of Appeals for the Ninth Circuit, EB Holdings II, Inc. v. Illinois National Insurance Comp., Docket No. 23-15556

Insurance Law

 

Conflict-of-Laws

 

Affirmative Defense

 

Diversity Cases

 

Choice-of-Law Rules of the Forum State

 

Texas and Nevada Law

 

 

 

 

Appeal from the United States District Court for the District of Nevada

 

 

The Insureds are holding companies incorporated in Nevada and headquartered in Dallas, Texas. In 2015, the Insureds had dozens of subsidiaries, through which the Insureds operated battery recycling facilities and manufactured supplies for the oil exploration industry. EBH II’s principal asset was ownership of 86.9% of Eco-Bat Technologies, Ltd. (Eco-Bat), a supplier of recycled lead based in the United Kingdom. Howard Meyers was a Director and the President of both Insureds in 2015. Albert Lospinoso was the other Director of EBH II. In the summer of 2015, the Insureds sought to renew their Directors and Officers and Private Company Liability Insurance Policy with Illinois National Insurance Company (Illinois National), an American International Group, Inc. (AIG) subsidiary organized pursuant to Illinois law with a principal place of business in New York. The Insureds were seeking to renew coverage not only for themselves but also for dozens of their subsidiary companies, including Eco-Bat and Eco-Bat’s subsidiaries. To facilitate the renewal, the Insureds’ insurance broker sent numerous documents to AIG’s underwriters that summer relating to the finances of the Insureds and their subsidiaries. These documents included a consolidated balance sheet of Eco-Bat America, LLC (EBA), a wholly owned subsidiary of Eco-Bat. This document represented that the subsidiary, EBA, had $29.9 million in long-term debt.

 

 

The District Court erred in concluding that Nevada law, and not Texas law, governs the affirmative defense.

 

It is well-established in the federal courts that a conflict-of-laws analysis may result in the laws of different jurisdictions applying to different issues in the same case. Allstate Ins. Co. v. Hague, 449 U.S. 302, 307 (1981). “It is also well-established that in diversity cases, such as this one, ‘federal courts must apply the choice-of-law rules of the forum state.’” Rustico v. Intuitive Surgical, Inc., 993 F.3d 1085, 1091 (9th Cir. 2021) (quoting Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir. 1987)). Here, the forum state is Nevada. “Nevada tends to follow the Restatement . . . in determining choice-of-law questions involving contracts, generally, and insurance contracts, in particular.” Progressive Gulf Ins. Co. v. Faehnrich, 327 P.3d 1061, 1063 (Nev. 2014). That includes § 187 of the Restatement, which, according to the Nevada Supreme Court, permits the parties “within broad limits to choose the law that will determine the validity and effect of their contract.” Ferdie Sievers & Lake Tahoe Land Co. v. Diversified Mortg. Invs., 603 P.2d 270, 273 (Nev. 1979). Nevertheless, where an insurance policy does not evince a clear choice-of-law governing a particular issue, the Nevada Supreme Court has instructed its courts to apply § 188 of the Restatement, i.e., the “substantial relationship” test. See, e.g., Sotirakis v. United Serv. Auto. Ass’n, 787 P.2d 788, 789–90 (Nev. 1990). That test requires courts to consider: “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement § 188. Each factor of the test must be “evaluated according to its relative importance with respect to the particular issue” that gave rise to the choice-of-law dispute in the first place. Id.

 

 

Section 187 of the Restatement permits the parties “within broad limits to choose the law that will determine the validity and effect of their contract.” Ferdie, 603 P.2d at 273. Parties typically effectuate that choice through an express choice-of-law provision in their contract. See Restatement § 187 cmt. a (“When the parties have made such a choice, they will usually refer expressly to the state of the chosen law in their contract, and this is the best way of insuring that their desires will be given effect.”). It is undisputed that the insurance policy in this case lacks such a provision. Nevertheless, commentary to the Restatement makes clear that an express choice-of-law provision is not required for § 187 to apply to a particular issue. See Restatement § 187 cmt. a.1 “The fact that a contract contains legal expressions, or makes reference to legal doctrines, that are peculiar to the local law of a particular state may provide persuasive evidence that the parties wished to have the law of that particular state applied.” Id.

 

 

(…) Because we conclude that Texas law applies to the defense of material misrepresentation, there is no reason to entertain the Insureds’ broader argument that Texas law applies to the entire policy. Cf. George K. Baum & Co. v. Twin City Fire Ins. Co., 760 F.3d 795, 799–800 (8th Cir. 2014) (applying comment (a) to § 187 of the Restatement to hold that New York law governed an entire insurance policy that lacked an express choice-of-law clause because it “contained numerous New York-specific provisions”). (Fn. 2).

 

 

 

 

 

 

(U.S. Court of Appeals for the Ninth Circuit, July 29, 2024, EB Holdings II, Inc. v. Illinois National Insurance Comp., Docket No. 23-15556, for Publication)

U.S. Court of Appeals for the Ninth Circuit, EB Holdings II, Inc. v. Illinois National Insurance Comp., Docket No. 23-15556

Conflict-of-Laws

 

Affirmative Defense

 

Diversity Cases

 

Choice-of-Law Rules of the Forum State

 

 

 

 

 

The District Court erred in concluding that Nevada law, and not Texas law, governs the affirmative defense.

 

It is well-established in the federal courts that a conflict-of-laws analysis may result in the laws of different jurisdictions applying to different issues in the same case. Allstate Ins. Co. v. Hague, 449 U.S. 302, 307 (1981). “It is also well-established that in diversity cases, such as this one, ‘federal courts must apply the choice-of-law rules of the forum state.’” Rustico v. Intuitive Surgical, Inc., 993 F.3d 1085, 1091 (9th Cir. 2021) (quoting Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir. 1987)). Here, the forum state is Nevada. “Nevada tends to follow the Restatement . . . in determining choice-of-law questions involving contracts, generally, and insurance contracts, in particular.” Progressive Gulf Ins. Co. v. Faehnrich, 327 P.3d 1061, 1063 (Nev. 2014). That includes § 187 of the Restatement, which, according to the Nevada Supreme Court, permits the parties “within broad limits to choose the law that will determine the validity and effect of their contract.” Ferdie Sievers & Lake Tahoe Land Co. v. Diversified Mortg. Invs., 603 P.2d 270, 273 (Nev. 1979). Nevertheless, where an insurance policy does not evince a clear choice-of-law governing a particular issue, the Nevada Supreme Court has instructed its courts to apply § 188 of the Restatement, i.e., the “substantial relationship” test. See, e.g., Sotirakis v. United Serv. Auto. Ass’n, 787 P.2d 788, 789–90 (Nev. 1990). That test requires courts to consider: “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement § 188. Each factor of the test must be “evaluated according to its relative importance with respect to the particular issue” that gave rise to the choice-of-law dispute in the first place. Id.

 

 

Section 187 of the Restatement permits the parties “within broad limits to choose the law that will determine the validity and effect of their contract.” Ferdie, 603 P.2d at 273. Parties typically effectuate that choice through an express choice-of-law provision in their contract. See Restatement § 187 cmt. a (“When the parties have made such a choice, they will usually refer expressly to the state of the chosen law in their contract, and this is the best way of insuring that their desires will be given effect.”). It is undisputed that the insurance policy in this case lacks such a provision. Nevertheless, commentary to the Restatement makes clear that an express choice-of-law provision is not required for § 187 to apply to a particular issue. See Restatement § 187 cmt. a.1 “The fact that a contract contains legal expressions, or makes reference to legal doctrines, that are peculiar to the local law of a particular state may provide persuasive evidence that the parties wished to have the law of that particular state applied.” Id.

 

 

(…) Because we conclude that Texas law applies to the defense of material misrepresentation, there is no reason to entertain the Insureds’ broader argument that Texas law applies to the entire policy. Cf. George K. Baum & Co. v. Twin City Fire Ins. Co., 760 F.3d 795, 799–800 (8th Cir. 2014) (applying comment (a) to § 187 of the Restatement to hold that New York law governed an entire insurance policy that lacked an express choice-of-law clause because it “contained numerous New York- specific provisions”). (Fn. 2).

 

 

 

 

 

 

(U.S. Court of Appeals for the Ninth Circuit, July 29, 2024, EB Holdings II, Inc. v. Illinois National Insurance Comp., Docket No. 23-15556, for Publication)

 

U.S. Court of Appeals for the Ninth Circuit, EB Holdings II, Inc. v. Illinois National Insurance Comp., Docket No. 23-15556

Remand (Federal)

 

Prudential Reasons

 

Alternative Grounds for Affirmance

 

 

 

 

(…) Illinois National, Continental, and Federal devote much of their appellate briefing to arguing why the panel should affirm the district court’s grant of summary judgment on alternative grounds. This includes Illinois National’s argument that Endorsement #23 of the policy precludes coverage for the Insureds’ claims. We decline to reach these arguments in the first instance. See generally Detrich v. Ryan, 740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc) (observing that it is “standard practice . . . to remand to the district court for a decision in the first instance without requiring any special justification for so doing”), overruled on other grounds by Shinn v. Ramirez, 596 U.S. 366 (2022); Ecological Rts. Found. v. Pac. Lumber Co., 230 F.3d 1141, 1154 (9th Cir. 2000) (discussing prudential reasons why an appellate court typically does not address alternative grounds for affirmance).

 

 

 

 

(U.S. Court of Appeals for the Ninth Circuit, July 29, 2024, EB Holdings II, Inc. v. Illinois National Insurance Comp., Docket No. 23-15556, for Publication)

 

U.S. Supreme Court, Loper Bright Enterprises v. Raimondo, Secretary of Commerce, Docket No. 22-451

 

Chevron Deference

 

Statute Interpretation

 

Silent or Ambiguous Statute

 

Administrative Procedure Act (APA), 5 U. S. C. §551 et seq.

 

Article III of the Constitution

 

Stare Decisis

 

 

 

 

The Court granted certiorari in these cases limited to the question whether Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, should be overruled or clarified. Under the Chevron doctrine, courts have sometimes been required to defer to “permissible” agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently. Id., at 843. In each case below, the reviewing courts applied Chevron’s framework to resolve in favor of the Government challenges by petitioners to a rule promulgated by the National Marine Fisheries Service pursuant to the Magnuson-Stevens Act, 16 U. S. C. §1801 et seq., which incorporates the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq.

 

 

Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.

 

 

Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved.

The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear, but envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” The Federalist No. 78, p. 525 (A. Hamilton). As Chief Justice Marshall declared in the foundational decision of Marbury v. Madison, “it is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177. In the decades following Marbury, when the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515.

 

 

Congress in 1946 enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, 5 U. S. C. §706—even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding. See §§706(2)(A), (E). And by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, §706, it makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference. The APA’s history and the contemporaneous views of various respected commentators underscore the plain meaning of its text.

 

 

Courts exercising independent judgment in determining the meaning of statutory provisions, consistent with the APA, may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. See Skidmore, 323 U. S., at 140. And when the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, fixing the boundaries of the delegated authority, and ensuring the agency has engaged in “ ‘reasoned decisionmaking’ ” within those boundaries. Michigan v. EPA, 576 U. S. 743, 750 (quoting Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S. 359, 374). By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.

 

 

The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.

 

 

(1) Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional judicial approach of independently examining each statute to determine its meaning. The question in the case was whether an Environmental Protection Agency (EPA) regulation was consistent with the term “stationary source” as used in the Clean Air Act. 467 U. S., at 840. To answer that question, the Court articulated and employed a now familiar two-step approach broadly applicable to review of agency action. The first step was to discern “whether Congress had directly spoken to the precise question at issue.” Id., at 842. The Court explained that “if the intent of Congress is clear, that is the end of the matter,” ibid., and courts were therefore to “reject administrative constructions which are contrary to clear congressional intent,” id., at 843, n. 9. But in a case in which “the statute [was] silent or ambiguous with respect to the specific issue” at hand, a reviewing court could not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Id., at 843 (footnote omitted). Instead, at Chevron’s second step, a court had to defer to the agency if it had offered “a permissible construction of the statute,” ibid., even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” ibid., n. 11. Employing this new test, the Court

concluded that Congress had not addressed the question at issue with the necessary “level of specificity” and that EPA’s interpretation was “entitled to deference.”

 

 

(…) It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best.

 

 

(…) Congress expects courts to handle technical statutory questions, and courts did so without issue in agency cases before Chevron. After all, in an agency case in particular, the reviewing court will go about its task with the agency’s “body of experience and informed judgment,” among other information, at its disposal. Skidmore, 323 U. S., at 140. An agency’s interpretation of a statute “cannot bind a court,” but may be especially informative “to the extent it rests on factual premises within the agency’s expertise.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 98, n. 8. Delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise.

 

 

By overruling Chevron, though, the Court does not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite the Court’s change in interpretive methodology. See CBOCS West, Inc. v. Humphries, 553 U. S. 442, 457. Mere reliance on Chevron cannot constitute a “ ‘special justification’ ” for overruling such a holding. Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (quoting Dickerson v. United States, 530 U. S. 428, 443).

 

 

 

 

(U.S. Supreme Court, June 28, 2024, Loper Bright Enterprises v. Raimondo, Secretary of Commerce, Docket No. 22-451)

U.S. Supreme Court, Loper Bright Enterprises v. Raimondo, Secretary of Commerce, Docket No. 22-451

 

Article III of the Constitution

 

Chevron Deference

 

APA

 

 

 

Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that “all new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,” would be “more or less obscure and equivocal, until their meaning” was settled “by a series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison). The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” Id., at 523. To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches. Id., at 522; see id., at 522–524; Stern v. Marshall, 564 U. S. 462, 484 (2011).

 

 

This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court understood “interpreting the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515 (1840). The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. (…) “Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Decatur, 14 Pet., at 515; see also Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where a court’s own judgment . . . differed from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” Dickson, 15 Pet., at 162.

 

 

(…) Congress in 1946 enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. It was the culmination of a “comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.” Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670–671 (1986).

 

 

(…) The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.

 

 

 

 

(U.S. Supreme Court, June 28, 2024, Loper Bright Enterprises v. Raimondo, Secretary of Commerce, Docket No. 22-451, C.J. Roberts)

 

U.S. Supreme Court, Loper Bright Enterprises v. Raimondo, Secretary of Commerce, Docket No. 22-451

Statutory Interpretation

 

Presumptions

 

Ambiguity

 

 

 

Chevron cannot be reconciled with the APA, as the Government and the dissent contend, by presuming that statutory ambiguities are implicit delegations to agencies. See Brief for Respondents in No. 22–1219, pp. 13, 37–38; post, at 4–15 (opinion of KAGAN, J.). Presumptions have their place in statutory interpretation, but only to the extent that they approximate reality. Chevron’s presumption does not, because “an ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.” C. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989). As Chevron itself noted, ambiguities may result from an inability on the part of Congress to squarely answer the question at hand, or from a failure to even “consider the question” with the requisite precision. 467 U. S., at 865. In neither case does an ambiguity necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. And many or perhaps most statutory ambiguities may be unintentional. As the Framers recognized, ambiguities will inevitably follow from “the complexity of objects, . . . the imperfection of the human faculties,” and the simple fact that “no language is so copious as to supply words and phrases for every complex idea.” The Federalist No. 37, at 236.

 

 

Courts, after all, routinely confront statutory ambiguities in cases having nothing to do with Chevron—cases that do not involve agency interpretations or delegations of authority. Of course, when faced with a statutory ambiguity in such a case, the ambiguity is not a delegation to anybody, and a court is not somehow relieved of its obligation to independently interpret the statute. Courts in that situation do not throw up their hands because “Congress’s instructions have” supposedly “run out,” leaving a statutory “gap.” Post, at 2 (opinion of KAGAN, J.). Courts instead understand that such statutes, no matter how impenetrable, do— in fact, must—have a single, best meaning. That is the whole point of having written statutes; “every statute’s meaning is fixed at the time of enactment.” Wisconsin Central Ltd. v. United States, 585 U. S. 274, 284 (2018). So instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity.

 

 

 

 

(U.S. Supreme Court, June 28, 2024, Loper Bright Enterprises v. Raimondo, Secretary of Commerce, Docket No. 22-451, C.J. Roberts)

 

U.S. Supreme Court, SEC v. Jarkesy, Docket No. 22-859

Common Law

(…) The issue in Granfinanciera was whether this designation was permissible under the public rights exception. We explained that it was not.

 

Although Congress had assigned fraudulent conveyance claims to bankruptcy courts, that assignment was not dispositive. See id., at 52. What mattered, we explained, was the substance of the suit. “Traditional legal claims” must be decided by courts, “whether they originate in a newly fashioned regulatory scheme or possess a long line of common-law forebears.” Ibid. To determine whether the claim implicated the Seventh Amendment, the Court applied the principles distilled in Tull. We examined whether the matter was “from its nature subject to ‘a suit at common law.’” 492 U. S., at 56 (some internal quotation marks omitted); see id., at 43–50. A survey of English cases showed that “actions to recover . . . fraudulent transfers were often brought at law in late 18th-century England.” Id., at 43. The remedy the trustee sought was also one “traditionally provided by law courts.” Id., at 49. Fraudulent conveyance actions were thus “quintessentially suits at common law.” Id., at 56.

We accordingly concluded that fraudulent conveyance actions were akin to “suits at common law” and were not inseparable from the bankruptcy process. Id., at 54, 56. The public rights exception therefore did not apply, and a jury was required.

 

 

(U.S. Supreme Court, June 27, 2024, SEC v. Jarkesy, Docket No. 22-859, C.J. Roberts)