Jon Hacker is a familiar face in the Supreme Court chamber, everywhere except at the lectern.
The O’Melveny & Myers D.C. partner is co-director of the Harvard Law School Supreme Court and Appellate Advocacy Clinic. He also co-chairs the committee of the National Association of Criminal Defense Lawyers that writes amicus briefs in Supreme Court criminal cases. In both capacities, he is often in the Supreme Court bar section watching oral arguments. He has also been “second chair” in numerous Supreme Court arguments.
But he has never had the chance to stand up and argue a case before the nine justices — until next Monday Jan. 10, when he will argue for the in Matrixx Initiatives v. Siracusano, the so-called “Zicam case.”
Zicam is an over-the-counter medication for the common cold that ran into trouble when some users of the nasal spray version reported they lost their sense of smell. When the problem first arose, only a handful of such “adverse event reports” were made, and Matrixx, the manufacturer, did not disclose them to shareholders in part because, it said, a cold itself can cause loss of smell. The issue before the Court is whether a Section 10-B securities suit can be brought on the basis of the manufacturer’s failure to disclose a statistically insignificant number of adverse event reports.
The case is one of this term’s closely watched business cases, raising issues of pleading standards, securities fraud, and class actions, all of which have gotten the Court’s attention in recent years. Arguing for shareholders will be David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, who often represents drug company adversaries.
Hacker sat down with correspondent Tony Mauro to discuss the case, and the prospect of making his first high court argument against Frederick.