Page 17 - Delaware Lawyer - Winter 2023

BUD KEEGAN
under the Delaware Constitution. The case was assigned to Chief Judge Greg- ory Sleet, an experienced jurist who had been on the bench for a decade. (Two of his colleagues on the federal bench subsequently were in the center of oth- er high-profile legal matters in profes- sional sports. Two years later, in the Los Angeles Dodgers bankruptcy filing in Delaware, Joseph Farnan, Jr. was named to mediate disputes between the Dodg- ers’ owner and the MLB Commissioner. And more recently, Sue L. Robinson was appointed by the NFL Commis- sioner to decide quarterback Deshaun Watson’s punishment in a much- publicized disciplinary matter. One could view these as further illustrations of the First State’s seeming knack for gaining the spotlight in legal matters.)
A few days after filing the complaint, plaintiffs filed a motion for a prelimi- nary injunction. Notwithstanding the ensuing August vacation season, en- joyed by many in the legal community at the Delaware beaches, Judge Sleet was faced with addressing a complex, high-profile matter in a very expedited manner. After an immediate scheduling conference and an unsuccessful attempt
by the parties to reach a temporary res- olution, the parties submitted briefs on the motion. On August 5, 2009 (a mere 12 days after the case was filed), the par- ties appeared before Judge Sleet, and after argument the Court orally denied the motion, setting a trial date in De- cember. A Memorandum Order issued five days later, on August 10, among other things, found plaintiffs had not shown a likelihood of success.
Appealing to the Third Circuit
Plaintiffs wasted no time in appeal- ing the District Court’s decision to the Third Circuit Court of Appeals. In fact, they filed their notice of appeal on Au- gust 7, before the Memorandum Order was issued, and then on August 10 filed a motion for expedited consideration. Proving to be up to the task of also moving at lightning speed, on August 12 the Delaware defendants filed an op- position to the motion to expedite as well as a motion to dismiss plaintiffs’ ap- peal. Not to be outdone, on August 13 the Third Circuit granted the motion to expedite and scheduled oral arguments on August 24, a mere two weeks after Judge Sleet’s opinion (and a month af-
ter the litigation commenced).
The cast of counselors at argu- ment was familiar. The same attorneys who had appeared for the NFL in the proceeding before the Delaware Su- preme Court — the Morris Nichols firm led by Mr. Nachbar — represented plaintiffs in this litigation, including the appeal. Appellees Governor Markell and Mr. Lemons were again represented by Andre Bouchard and his firm (his col- league Joel Friedlander joined Mr. Bouchard in argument in the appeal). None of these very capable profession- als were practicing lawyers during Dela- ware’s first legal battle with the NFL in the 1970s, when Thomas Ambro was part of the legal team representing the NFL. Now he was a member of the Third Circuit (but not assigned to the
three-judge panel for this matter).
On August 31, seven days after ar- gument, the Third Circuit panel issued a 23-page opinion vacating the lower court’s decision and remanding the pro- ceedings.9 The appeal dealt solely with the plaintiffs’ claim that Delaware’s law violated federal law, specifically PASPA (as noted above, the second count was a claim that the law violated the State’s
Alxsandro Jones (striped shirt) of Alexis I. du Pont High School takes the lead in the 110-meter hurdles.
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