16 July 2014
Business interests did not fare as well as usual before the U.S. Supreme Court in the term just ended, according to Mayer Brown’s annual tally of the court’s business docket.
“It is incorrect and unfair to characterize the court as pro-business, and this term really bears that out,” Mayer Brown partner Lauren Goldman said in releasing the report. “It was a pretty mixed bag.”
Overall, business advocates won 15 of the 22 cases included in the Mayer Brown tally, which at first glance seems like an enviable record. But Goldman said a close analysis “paints a different picture.”
She points to the 11 business decisions in which the court was unanimous. Business won in nine but, Goldman said, most of those were narrow and noncontroversial, many of them written by liberal justices who might not be inclined to hand broad victories to businesses.
But among the 11 business cases in which the court was divided, Goldman said, business won six and lost five. Many of the cases in this group were more significant, and the losses stung, she said.
In spite of the Mayer Brown analysis, liberal court-watchers still insist the 2013-2014 term exemplified the Roberts Court’s pro-business bias.
“The business community suffered a handful of big losses this term, but they still won way more cases than they lost,” said Doug Kendall of the Constitutional Accountability Center, which also analyzes the court’s business docket every year. “More than anything, this term was characterized by business making aggressive arguments and succeeding in pushing the law in a pro-business direction.”
But the aggressive strategy business advocates employed did not always work in the term just ended.
As an example, Mayer Brown lists Halliburton v. Erica P. John Fund, a decision that failed to accomplish what business advocates fervently pushed for in the case: overturning the 1988 Basic v. Levinson precedent that has made it easier to mount securities fraud class actions against corporations. The court did give business defendants a new way to counter class certification in the Halliburton ruling but, Goldman said, “as a practical matter few defendants will be able to meet this burden.”
In addition, the court sided with the Environmental Protection Agency in two major Clean Air Act cases in which a range of companies sharply attacked the agency’s authority: EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA. While the court majority voiced skepticism in ways that may benefit business in future cases, both rulings represented significant losses for business.
The justices rejected limits on class actions in Chadbourne & Parke v. Troice and expanded whistleblower protections under the Sarbanes-Oxley Act in Lawson v. FMR—both defeats for business, according to the Mayer Brown report.
Even the marquee business wins in Burwell v. Hobby Lobby Stores Inc. and NLRB v. Noel Canning may not turn out to benefit businesses broadly in the long term, in Goldman’s view.
The NLRB case, which limited presidential power to make personnel appointments during a Senate recess, “is about recess appointments, not about business,” Goldman said. Some business advocates, however, have counted it as a major win—as did the U.S. Chamber of Commerce, which directly represented the Noel Canning company, one of its members.
As for Hobby Lobby, which gave closely held corporations rights under the Religious Freedom Restoration Act in the context of the Affordable Care Act, Goldman said, “It won’t affect that many corporations.” Fortune 500 companies and major business groups including the Chamber stayed out of the Hobby Lobby case—possibly, at least in part, out of concern that it would disturb the traditional “corporate veil” separating a corporation from its owners for purposes of liability.
Goldman cautioned that her firm’s tally did not include most cases in which one business opposed another, such as POM Wonderful v. Coca-Cola and American Broadcasting Cos. v. Aereo. Neither did it count Harris v. Quinn, which liberal commentators saw as a sign of the anti-union stance of the Roberts Court. The case involved nonmember fees paid to public employee unions.
For its part, the Chamber claims an 11-5 win-loss record in cases in which it was a party or amicus curiae this past term. The Chamber counted Halliburton as a victory, even though it said it was “disappointed” that the court had not overturned Basic. And the Chamber was a party in the United Air Regulatory Group EPA case, which it also listed as a business win.
Lily Fu Claffee, the Chamber’s general counsel, said in a written statement: “This term, the court relied on established principles to reject the plaintiffs’ bar’s attempts to expand liability and regulatory agencies’ efforts to stretch executive power. There were many important wins for the business community.”
Reprinted with permission from the July 16, 2014 edition of National Law Journal © 2014 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.