Corporate Governance

US v. Nacchio: The Final Chapter?

By J. Robert Brown

Joe Nacchio went to prison last Tuesday in Pennsylvania after the 10th Circuit and Justice Breyer denied his petition for certiorari. The only remaining issue, therefore, is whether the Supreme Court will hear the case.  A tantalizing suggestion in the Tenth Circuit opinion suggests that it will not.

The 10th Circuit order was issued by the same panel that reversed the lower court and ordered a new trial (before being overturned by the circuit en banc).  In other words, it couldn't be described as a court hostile to Nacchio.  In the order, the panel had this to say about Nacchio's petition before the US Supreme Court:

• Mr. Nacchio, on the other hand, maintains that he must show only that there is a reasonable chance that the Supreme Court will accept certiorari. Renewed Emergency Application for Release at 9-11; Reply Br. at 2. We need not decide this question, however, because the showing as to even the more lenient standard is insufficient: Mr. Nacchio has not shown that there is a reasonable chance that the Supreme Court will grant his petition.  (emphasis added)

This is no idle statement.  This comes from a panel that includes a Judge (McConnell) who takes pride in the fact that the US Supreme Court has taken five cases (Wikipedia says four but Judge McConnell noted at the University of Denver a few weeks ago that there was a fifth) where he has written an opinion (whether majority, dissenting or concurring) and the Supreme Court had decided in a manner consistent with those opinions.  In other words, the Supreme Court takes seriously what Judge McConnell has to say. 

And, right now, he is saying that the Court won't take the Nacchio appeal.  The Court may well listen to this comment as well.

Full post as published by The Race to the Bottom on April 20, 2009 (boomark / email).