On January 31, 2016, President Trump nominated Judge Neil Gorsuch of the Tenth Circuit to the United States Supreme Court. Jude Gorsuch received his law degree from Harvard Law School, and he is a former clerk to Justices Byron White and Anthony Kennedy.
Like Justice Scalia, whom he is in line to replace, Judge Gorsuch considers himself to be an originalist and a textualist. In a split with Justice Scalia, however, Judge Gorsuch does not agree that courts should defer to federal agencies in the interpretation of vague or ambiguous regulations (the so-called Chevron doctrine). This could have a noticeable impact on how the Court views regulations enforced by, for example, the SEC or the DOL.
Briggs’ Financial Markets Group appeared before Judge Gorsuch in the case Sweesy v. Sun Life Assurance Co. of Canada, et al., 643 Fed.Appx.785 (Mar. 30, 2016). The opinion can be found here. Sweesy involved claims that an insurance agent systematically depleted the assets of a man suffering from Alzheimer’s by inducing him into giving her substantial loans and monetary gifts, and churning his annuities. Briggs’ Financial Markets Group represented one of the defendants. The district court dismissed the case on statute of limitations grounds, and the Plaintiff appealed to the Tenth Circuit.
Judge Gorsuch was very active at oral argument, asking many questions of both sides. The judges seemed clearly concerned with applying the “discovery rule” to a plaintiff with dementia, but also seemed to agree that the controlling law required that an objective, reasonable person standard be applied.
After oral argument, the Tenth Circuit took the matter under advisement for a year, until it affirmed the trial court’s decision.
Sweesy may be a good example of what participants in the financial markets can expect if the Senate confirms Judge Gorsuch’s nomination to the Supreme Court. Judge Gorsuch followed the strict letter of the law, and did not allow sympathetic facts to prevent a rigorous application of controlling precedent.