Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Washington-In just the last three months, the business community’s stakes in the current U.S. Supreme Court term have skyrocketed with the addition of cases raising vital issues in a broad swath of law. When the term opened last October, business and its frequent opponents-consumers, workers and environmentalists, among others-viewed the summer cases granted review on the so-called business docket as potentially important. But now, just midway into the term, business litigators and court watchers agree that newly added cases make the term potentially one of the most significant in years. Since Sept. 27, “there has been a substantial increase in the number of business cases granted [review] this term,” said Robin Conrad, senior vice president of the U.S. Chamber of Commerce’s National Chamber Litigation Center. In the 2004-2005 term, Conrad said, the chamber filed briefs urging review in 18 cases and briefs on the merits in nine cases. “So far this term, and we’re not even halfway through the term, at least 14 business cases have been granted and we’re in eight cases on the merits,” she said. “That’s high for us.” And it’s not just the number of cases that is remarkable, said veteran high court litigator Mark I. Levy of the Washington office of Atlanta-based Kilpatrick Stockton, who tracks the high court’s business cases closely. “I can’t think of a term with a richer business docket in terms of the number of cases, the areas of law in which they arise, and the importance of the issues,” said Levy. “We always look at numbers, but just as important is whether the court is taking the important cases. The third part of the equation is how the court decides them, but it is a little early to judge that.” Levy and Conrad noted that the high court now has not just one but sometimes several cases in such areas as patent, securities, environment, antitrust, tax and the Racketeer Influenced Corrupt Organizations Act (RICO). Those cases often raise core issues, such as the definition of “enterprise” in the RICO statute; whether a permanent injunction must be issued after a finding of patent infringement; and whether state financial incentives to encourage business relocations and expansions are unconstitutional. “And that’s in addition to their standard diet of a little bit of bankruptcy, ERISA [Employee Retirement and Income Security Act] and Title VII [of the Civil Rights Act of 1964],” said Conrad. The only area of law in which the court does not now have an important business case is the sort of generic area of civil litigation, involving such issues as punitive damages and class actions, noted Levy. “The court has had a lot of those cases in the past,” he said. “I think punitive damages and class actions will continue to come up, particularly because of the new Class Action Fairness Act where there are conflicts out the wazoo in the district courts. Whenever Congress passes a new statute that has important practical impact on litigation, you know those cases will get to the Supreme Court. So the lack of cases in that category is an aberration.” David Gossett of the Washington office of Chicago’s Mayer, Brown, Rowe & Maw, who, like Levy, specializes in Supreme Court and appellate litigation, said that it was his sense that there has been no overall increase in the business docket from prior terms, but an increase in patent and environmental cases is noticeable. “I and a lot of lawyers who work in D.C. think the court, in fact, does not take enough business cases,” he said. There have been some interesting and important business cases that the court did not take recently, he added, noting one raising the issue of whether federal regulation of radio frequencies pre-empts state tort suits. Conrad agreed with Gossett’s point that more still needs to be done by the court on issues of concern to the business community. “We like the progress but also think there’s a lot more progress to be made,” she said. “There are a number of issues that continue to plague the business community; one in particular has to do with certification of class actions.” Aligning stars So why the addition of so many more important business cases? “Good cases at the right time in the right court,” suggested Conrad, adding, “There’s always a bit of serendipity to this.” She and others said that the increase since October also may reflect the influence of Chief Justice John G. Roberts Jr., who often represented business interests before the high court as a partner with Washington’s Hogan & Hartson. “I do think that Roberts has had a positive impact,” said Carter Phillips of Sidley Austin Brown & Wood, who is handling three business cases this term, two of which would make any list of the court’s top 10 most important business challenges-the patent injunction case and the RICO enterprise case. But he also suggested that some issues, such as in patent law, simply become more important than in the past as business grows and changes. In a normal term, Kilpatrick’s Levy said, DaimlerChrysler Corp. v. Cuno, nos. 04-1704/04-1724, would be at the top of a list of the term’s most important business cases. This term, it has competition for No. 1 but it is clearly in the running because of its potential impact on all kinds of businesses, taxpayers and state tax revenues. “There’s a lot of money at stake here,” agreed the chamber’s Conrad. DaimlerChrysler is asking the justices to reverse a 6th Circuit decision holding that Ohio’s investment tax credit, designed to encourage businesses to expand or relocate in Ohio, violates the commerce clause. Mayer Brown’s appellate shop, led by counsel Charles Rothfeld, won review for Chrysler, but the auto company has turned to former U.S. Solicitor General Theodore Olson, now a partner in Gibson, Dunn & Crutcher’s Washington office, to argue the case. A group of Ohio and Michigan residents challenged Ohio’s tax-incentive plan, which was designed to encourage Chrysler to build a new vehicle assembly plant in Toledo. The 6th Circuit held that the plan violated the commerce clause because it treated in-state and out-of-state investors differently. “There is a huge cloud over a number of tax-incentive efforts around the country,” said Conrad. Levy agreed, adding, “States are doing this on the national and international levels. The most important thing for them politically and substantively is jobs. I think it’s enormously important and there’s not a state in the country or a big company that might not be affected by the decision.” The high court asked the parties to brief whether the taxpayers had standing to challenge the tax-credit law-a potential obstacle to reaching the merits. The court in October granted review on the same day to three Clean Water Act cases: Rapanos v. U.S., No. 04-1034, and Carabell v. U.S. Army Corps of Engineers, No. 04-1384 (consolidated for argument); and S.D. Warren Co. v. Maine Board of Environmental Protection, No. 04-1527. “The basic question raised by these cases is whether the Clean Water Act can continue to serve as the foundation for an effective, comprehensive response to the nation’s serious water-quality challenges,” said environmental law scholar John Echeverria of Georgetown University Law Center. Rapanos and Carabell deal with the scope of federal regulation of wetlands under the act and could affect a huge number of wetlands. It also asks whether the application of the act to the wetland at issue is constitutional under the commerce clause. S.D. Warren asks the court whether water flowing through a hydroelectric dam constitutes a “discharge” into navigable waters under the act. If so, all of the federal and state regulatory requirements for licensing and permitting would come to bear. When the term opened in October, the court already had scheduled for review Scheidler v. NOW, nos. 04-1244/04-1352, a long-running RICO challenge stemming from violent protests at abortion clinics. The justices have added two more RICO cases: Anza v. Ideal Steel Supply Corp., No. 04-433, and Mohawk Industries Inc. v. Williams, No. 05-465. Mohawk asks whether a RICO “enterprise” is created when a corporation associates with third parties to perform corporate tasks on its behalf. Anza examines the “reliance” requirement in asking whether a competitor can be an injured party where it was not defrauded and didn’t rely on the fraudulent behavior. Mohawk is “enormously important,” Levy said, because it provides for triple damages and attorney fees. “Also, every company has third-party agents, at least in some areas that has been an increasing trend with outsourcing,” he said. “Also, it applies broadly to anybody hired by the corporation, including lawyers.” The court added two cases in late fall to its heaviest patent docket in 40 years: the blockbuster, eBay v. MercExchange, No. 05-130, in which the U.S. Court of Appeals for the Federal Circuit set forth the general rule that absent exceptional circumstances, a permanent injunction must be issued after a finding of patent infringement. A permanent injunction is the “sword of Damocles,” say some experts, and gives plaintiffs enormous leverage, including the threat of shutting down a company. Laboratory Corp. of America v. Metabolite Laboratories, No. 04-607, asks whether Metabolite’s patent for a method of detecting a vitamin deficiency was invalid because it claimed a natural phenomenon. Securities cases continue to be important to business, said the chamber’s Conrad. The justices last week heard arguments in Merrill Lynch v. Dabit, No. 04-1371, and appeared inclined to accept Merrill Lynch’s argument that the federal Securities Litigation Uniform Standards Act (SLUSA) pre-empts state law class action claims by people induced by allegedly fraudulent statements or omissions to hold or retain securities. The justices added a second securities case this month asking whether a decision to remand a case to state court pursuant to SLUSA is appealable. Kircher v. Putnam Funds Trust, No. 05-409. Two other important cases were added since October: Sereboff v. Mid Atlantic Medical Services, No. 05-260-Can an ERISA plan fiduciary sue a plan participant for reimbursement of advanced medical expenses where the participant recovers money from a third-party tortfeasor? Burlington Northern & Santa Fe Railway v. White, No. 05-259-the court will resolve a split among the circuits over the meaning of a “materially adverse change in the terms of employment” in deciding if employers can be held liable for retaliatory discrimination under Title VII.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.