Editor’s Note: This is the first installment of KLFP’s live coverage of Moot Court 2011. For more information about Moot Court, check out The Pit and the Podium.
Finals: Sherck & Holloway v. Moenius & Penner
Justices: Briscoe, Nuss, Six
Chief Justice Nuss began the proceeding by offering counsel the opportunity to waive oral argument. Parties giggled nervously, but did not waive.
Rachel Sherck argued on behalf of the petitioner on the first issue. Ms. Sherck argued the traditional four prong test should govern preliminary injunctive relief. The justices immediately began questioning the case upon which Ms. Sherck relied most heavily, asking whether Winter foreclosed serious questions simply because the case did not reference it. The justices also wondered whether not allowing for serious questions was too “wooden” of a standard to allow for equity in all cases.
Jared Holloway, Rachel Sherck, Eddie Penner, and Jill Moenius, from left to right, before the final round.
Ms. Sherck is on her game today as she anticipated the justices questions and dictated the direction of the dialogue. She is exceptionally articulate and I am impressed with her knowledge of the case law. She answered the justices questions directly and with the utmost confidence. She is simply stunning in a black skirt suit, a light blue button front shirt, and a chignon.
Jared Holloway argued on behalf of the petitioner on the second issue. Mr. Holloway argued the city ordinance is not preempted because it does not create a plan under ERISA and does not relate to ERISA plans. Justice Nuss seemed to catch Mr. Holloway off guard when he asked about the commerce clause’s relation to the litigation. Mr. Holloway remained calm and redirected of the attention of the justices to the primary question at issue. Justice Nuss concluded by accosting Mr. Holloway on his use of the phrase “totality of the circumstances.” Mr. Holloway calmly and confidently explained that his phrasing had no legal subtext, that it was merely intended to illustrate the need for the court to view the circumstances broadly.
Mr. Holloway is in complete control of the argument. He talked his way out of logical traps and redirected the justices line of questioning when it began to wander off track. He is cool and confident in a black suit, white button front shirt, and brand new red power tie.
Jill Moenius argued on behalf of the respondent on the first issue. Ms. Moenius argued the serious question test should govern preliminary injunctive relief because it offers flexibility when the likeliness of success is not determinant. Justice Nuss began the questioning by acknowledging all of the attorneys present would likely consider their cases compromised by serious questions. Ms. Moenius explained the serious question test was only intended for certain circumstances when equity required it application, citing CitiGroup as the prime example.
Ms. Moenius is poised despite the justices rapid-fire questioning. She was calm and collected as she cautiously stated she believed the justices were mischaracterizing her arguments. She is absolutely beautiful in a sleek and tailored black suit and black and white checkered collared shirt.
Eddie Penner argued on behalf of the respondent on the second issue. Mr. Penner argued the city ordinance should be preempted under ERISA. Mr. Penner, in response to nearly every question asked by the justices, skillfully distinguished his case.
Mr. Penner is a charismatic speaker. He is incredibly knowledgeable and a great wordsmith. He oozes professionalism in a black suit, a light blue button front shirt, and blue and red striped tie.
Justice Nuss was “very impressed” with today’s arguments, stating that today’s arguments were better than those he had seen in the past. He appreciated Ms. Moenius’s persistence and was full of praise for Ms. Sherck.
Justice Six thought everyone “did a really great job.” He was impressed by Ms. Sherck’s ability to keep her cool under serious fire and Ms. Moenius’s ability to keep her composure. He acknowledged the difficulty of Mr. Holloway’s argument and appreciated his ability to handle tough questioning. He complimented Mr. Penner on his ability to recover from a similar line of difficult questioning.
Justice Briscoe was also impressed by all. She acknowledged the complicated and tedious issues ERISA presents and congratulated Mr. Holloway and Mr. Penner on a job very well done. She described Ms. Sherck as “unflappable” and praised her unwillingness to give ground and her ability make solid points. She stated that Mr. Holloway handled the most difficult position was grace. She also described Ms. Moenius as “unflappable” and was impressed by her ability to make a good case from bad case law. She praised Mr. Penner for his ability to think on his feet and field questions with ease.
RESULT: Jill Moenius and Eddie Penner win Moot Court 2011.
AWARDS
Best Brief: Sean Foley and Evan Jarrold
Second Best Brief: Rachel Sherck and Jared Holloway
Best Oral Advocate: Rachel Sherck