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Antitrust, civil racketeering and arbitration challenges top the must-watch list of the nation’s business community as the new Supreme Court term unfolds next month. Many in that community are also optimistic that Judge John Roberts, most likely to be confirmed as the new chief justice, will bring a new understanding to the high court of what legal issues are most important to business. “I really like a lawyer’s lawyer on the Supreme Court, and in this particular instance, somebody who also understands how business litigation works,” said Michael Greve of the American Enterprise Institute, referring to Roberts’ handling of many business-related cases in his former appellate practice at Washington’s Hogan & Hartson. “I think Roberts will bring a willingness to get into those cases and a better understanding of what this looks like in real life,” he added. “The court has not been taking the really important cases and then it misunderstands the ones it takes. This is not a partisan thing. I know tons of lawyers who would rather be in front of Justice [Stephen] Breyer than the rest of that crowd. You can find tons of cases where Breyer writes lone dissents or almost lone dissents and it usually happens where he knows what he’s talking about. It’s good to have a second one of that mindset and background.” There is a general sense in the business community that the court doesn’t always take the most important business cases, or that some of the court’s usual criteria for granting review shouldn’t always be applicable to business cases, said high court litigator Mark Levy, counsel to the Washington office of Atlanta-based Kilpatrick Stockton. One of the criteria for granting review is a split among the circuits, explained Levy. But, for example, if the business is a nationwide one, such as General Motors Corp., and it issues stock, and someone sues in a court in the 9th U.S. Circuit Court of Appeals, “You can’t go into the 9th Circuit and have a different issuance. You can’t wait for a circuit conflict.” The court ought to be willing to look at the importance of a case in its context, he said, adding, “I think John will bring that perspective to bear on the court, a perspective which hasn’t been there at least since Justice [Lewis F.] Powell retired in 1987. “Everybody is looking to the abortion case and the big social cases, but I think in some ways we may learn more about him in the business cases — an area he may feel a little more comfortable taking positions. In some ways, it may turn out quite revealing about the kind of justice he is.” ANTITRUST RETURNS After a bit of a drought of antitrust challenges, the high court has three on its docket, two of which are of general importance. In two consolidated cases — Texaco v. Dagher, No. 04-805, and Shell Oil v. Dagher, No. 04-814 — the high court will decide whether an agreement by the owners of a bona fide joint venture on the price that will be charged for the joint venture’s products is a per se violation of �1 of the Sherman Act. Texaco and Shell merged some of their gasoline refining and marketing operations in a joint venture. The companies agreed to sell their branded gasoline at the same wholesale prices. The 9th Circuit held that the agreement was a per se violation of the Sherman Act’s prohibition against “combination in restraint of trade.” In an amicus brief in the case, the Washington Legal Foundation, a pro-business legal organization, contends that treating a bona fide joint venture — it was approved by the Federal Trade Commission — as a cartel creates potential antitrust liability for joint ventures and their managers in a variety of contexts. Levy agreed, predicting, “I think the court took the case to reverse. The underlying rule doesn’t make much sense and would greatly restrict joint ventures which are not anti-competitive and can be, in fact, pro-competitive. I think the antitrust world would be turned upside-down if the decision were upheld. It’s an important case.” In Illinois Tool Works Inc. v. Independent Ink Inc., No. 04-1329, antitrust law and patents intersect. The justices will consider whether, in a Sherman Act suit alleging that the defendant engaged in unlawful tying by conditioning a patent license on the licensee’s purchase of a nonpatented good, the plaintiff must prove that the defendant possessed market power in the relevant market for the tying product — or whether market power is presumed. Tying is a restriction on consumer choices. The issue before the court arises frequently in the hi-tech arena with equipment such as cameras and copy machines, according to Levy. “If somebody has a patent on the first product, does that give rise to a presumption of market power such that the tie between the first product and second product violates the Sherman Act?” asked Levy. TWO RICO CASES The court also has two civil Racketeer Influenced and Corrupt Organizations Act cases on its docket, one of which is an abortion-related case making its third appearance before the justices. The abortion-related RICO case is Scheidler v. National Organization for Women, No. 04-1244, and Operation Rescue v. NOW, No. 04-1352, challenges stemming from RICO suits brought by NOW against Operation Rescue for its blockades and violence at abortion clinics. “I started litigating this case when I was 32 and I’m almost 50,” said Jay Sekulow, general counsel of the American Center for Law & Justice, who represents Operation Rescue. Sekulow contends that the Supreme Court ended the case in 2003 in his clients’ favor, but the 7th Circuit ignored the ruling. The case raises two key issues: whether the federal Hobbs Act criminalizes only extortion and robbery, or also acts of violence or threats of violence that obstruct interstate commerce, and whether injunctive relief is available in a private civil action for treble damages brought under RICO. In Bank of China v. NBM LLC, No. 03-1559, the high court will consider whether, as the 2nd Circuit held, a plaintiff must show “reasonable reliance” where mail or wire fraud is the predicate act for a civil RICO claim. A holding that plaintiffs must prove they reasonably relied on the alleged mail or wire fraud would significantly limit the claims that could be brought successfully under civil RICO. The high court will examine a Florida Supreme Court decision in Buckeye Check Cashing Inc. v. Cardegna, No. 04-1264. The state high court held that the Federal Arbitration Act allows a party to avoid arbitration by claiming that the underlying contract containing an arbitration clause (but not the arbitration clause itself) is void for illegality. “There was a period of about 10 years where the court had, on average, one or two arbitration cases per term,” noted Levy. “Now the court has had three or four terms without any. This represents a return of arbitration cases as an important part of the business cases on court’s docket.” KEY SMALL BUSINESS CASE A case likely to affect a wide range of small business defendants is Arbaugh v. Y&H Corp., No. 04-944. Title VII of the 1964 Civil Rights Act prohibits job discrimination by employers employing 15 or more employees. The court will decide whether the number of employees is necessary for a federal court to have subject-matter jurisdiction, or if it is a factual element that a plaintiff must prove at trial if contested. Employment lawyers note that the case may have implications for other discrimination statutes with number requirements, such as the Americans With Disability Act, the Age Discrimination in Employment Act and the Family and Medical Leave Act.

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