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Scoring the Supreme Court’s Key Business Cases This Term

26 June 2017
The National Law Journal

After years when class action and arbitration issues dominated the U.S. Supreme Court’s business docket, fundamental questions about where companies can be sued and how long litigation can drag on took the lead in the term that wound up Monday.

And those rulings will have long-term impact for litigators and the companies they represent, Mayer Brown partner Lauren Goldman, co-chair of its Supreme Court and appellate practice, said Monday. “They have implications that cut across all kinds of cases,” said Goldman, who oversees the firm’s annual tally of the court’s business docket.

The firm’s appellate team counted fewer business cases than usual, but most were wins of significance. The U.S. Chamber of Commerce’s win-loss data shows a similar pattern.

According to Mayer Brown, 15 cases fit their criteria as business cases, down from a five-year average of 22. Businesses won 13 of the 15. Similarly the chamber counted 14 wins and two losses among the business cases in which the chamber participated. Major caveat: both tallies tend not to include cases in which businesses are suing each other, which leaves out many patent and antitrust disputes.

And it was a busy year for IP cases, says Deanne Maynard, co-chair of Morrison & Foerster’s appellate and Supreme Court practice. “The Supreme Court decided more than half a dozen very important intellectual property cases that will affect many sectors of the economy,” she said.

Asked to pick the most significant business of the term, Goldman led off with two big jurisdictional rulings that will make it more difficult to mount product-liability cases in states that have little or no connection to the defendant company or to the plaintiffs. Goldman said both “should sharply limit the ability of plaintiffs to forum-shop – i.e., to file suit in a forum they believe to be favorable, even where that forum has little or no connection to their claims.”

The first, BNSF v. Tyrrell, restricted general personal jurisdiction over corporations, limiting it to states where the business is “at home”—incorporated or headquartered. The high court on May 30 boosted its importance, Goldman said, by confirming that “this rule applies to all corporations, both foreign and domestic, and to all types of claims.”

Bristol-Myers Squibb v. Superior Court, a higher profile decision that squelched a Big Pharma product-liability case, has already had repercussions. The court on June 19 held that specific jurisdiction “must be based strictly on the strength of the connection between the forum and each individual plaintiff’s claim,” Goldman said. “The decision should sharply limit the ability of nonresident plaintiffs to select a forum where the defendant is not at home—as a Missouri court found the same day when it declared a mistrial in an unrelated product-liability action against Johnson & Johnson.”

Even though it is not part of her tally, Goldman said Monday’s ruling in CalPERS v. ANZ Securities caught her eye as another case with implications beyond its own context, namely class actions. Giving defendants greater finality in litigation, the court ruled 5-4 that a three-year “statute of repose” should govern claims concerning misstatements in securities registration statements, and should not be tolled or delayed.

Also on the class action front, Goldman counts Microsoft v. Baker as a significant decision that blocked a short-cut used by plaintiffs to hasten appeals of class certification rulings. “The bottom line is that absent permission for an interlocutory appeal,” Goldman said, “named plaintiffs must pursue their individual claims to final judgment on the merits in order to challenge the denial of class certification.”

Kindred Nursing Centers v. Clark continued the court’s “unbroken lines of cases” giving arbitration equal footing with other contracts, Goldman said. Impression Products Inc. v. Lexmark International on patent exhaustion, and Samsung v. Apple, on calculating infringement damages, also will have a broad reach. (Mayer Brown lawyers were involved in the Kindred and Impression Products cases.)

So, while it may not have been a blockbuster term in other regards, Goldman said the court’s business docket was “pretty important.” Referring back to the mistrial of a tort case the same day the Bristol-Myers case was handed down, Goldman said, “When you see an immediate real-world impact like that, you know it’s a decision important to business.”

Click here to view Mayer Brown’s chart and methodology.

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Reprinted with permission from the June 26, 2017 edition of The National Law Journal © 2017 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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