Supreme Court Report

Supreme Court of the United States · Official docket →

In Re Twelve Grand Jury Subpoenas

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 17-17213 · judgment November 8, 2018

Certiorari denied · October 7, 2019
Pre-decision estimate: 9% cert probability (95% interval 1%–52%)

Before the decision, about 2.2× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a dissent in the court below (flagged in the petition).

Questions presented

In Braswell v. United States, 487 U.S. 99, 102, 109 (1988), this Court held 5-4 that a records custodian of a business entity cannot resist a government-issued subpoena duces tecum on Fifth Amendment grounds, "regardless of how small the [entity] may be." Yet, Braswell left open a potential exception for situations in which the jury would "inevitably conclude" the custodian-owner produced the records: Id. at 118 n. 11.

  1. Should Braswell be limited or overturned given: the explosion in the formation of small, familyowned limited liability and pass-through entities, the Court's increased recognition of the legal rights of closely-held business entities, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and (iii) the fact that the Braswell custodian-owner asserted his individual privilege rather than a privilege on behalf of his closely-held corporation?

  2. Are small, family-owned limited liability companies (LLCs) and pass-through entities (subchapter "S" corporations) "collective entities" under the Fifth Amendment and, if so, do situations like Petitioner's fall within Braswell's potential exception? (i)

Counsel of record

For petitioner
Shay Dvoretzky
Skadden, Arps, Slate, Meagher & Flom LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 3 conferences

Amicus briefs
1 merits
(1 supporting pet./neither)

Linked docket
18M113, 18A655, 18A747

Proceedings

  1. Oct 07 2019
    Motion for leave to file a brief in opposition under seal with redacted copies for the public record GRANTED.
  2. Oct 07 2019
    Motion for leave to file a reply brief under seal with redacted copies for the public record GRANTED.
  3. Oct 07 2019
    Petition DENIED.
  4. Jul 24 2019
    DISTRIBUTED for Conference of 10/1/2019.
  5. Jul 24 2019
    Motion for leave to file a reply brief under seal with redacted copies for the public record filed by petitioner. (Distributed)
  6. Jul 10 2019
    Motion for leave to file a brief in opposition under seal with redacted copies for the public record filed by respondent.
  7. Jun 05 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including July 10, 2019.
  8. Jun 03 2019
    Motion to extend the time to file a response from June 10, 2019 to July 10, 2019, submitted to The Clerk.
  9. May 09 2019
    Brief amici curiae of Arizona Attorneys for Criminal Justice et al. filed.
  10. May 03 2019
    Motion to extend the time to file a response is granted and the time is extended to and including June 10, 2019.
  11. May 02 2019
    Motion to extend the time to file a response from May 9, 2019 to June 10, 2019, submitted to The Clerk.
  12. Apr 09 2019
    Response Requested. (Due May 9, 2019)
  13. Apr 02 2019
    DISTRIBUTED for Conference of 4/18/2019.
  14. Mar 27 2019
    Waiver of right of respondent United States to respond filed.
  15. Mar 18 2019
    Motion (18M113) for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record Granted.
  16. Feb 20 2019
    MOTION (18M113) DISTRIBUTED for Conference of 3/15/2019.
  17. Feb 13 2019
    Motion (18M113) for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record filed.
  18. Feb 13 2019
    Petition for a writ of certiorari filed. (Response due April 17, 2019)
  19. Jan 29 2019
    Application (18A747) granted by Justice Kagan extending the time to file until February 13, 2019. The application for leave to file the application for an extension of time under seal is granted.
  20. Jan 24 2019
    Application (18A747) to extend the time to file a petition for a writ of certiorari from February 6, 2019 to February 13, 2019 and for leave to file the application under seal, submitted to Justice Kagan.
  21. Dec 20 2018
    The application for leave to file the application under seal granted. The application (18A655) for a stay of contempt order or to stay mandate pending the filing and disposition of a petition for writ of certiorari denied by Justice Kagan.
  22. Dec 17 2018
    Application (18A655) for a stay of contempt order or to stay mandate pending the filing and disposition of a petition for writ of certiorari and application for leave to file the application under seal, submitted to Justice Kagan.