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Media Coverage

A Mixed Term for Business at the Supreme Court

8 July 2015
The National Law Journal

The U.S. Supreme Court term just ended should put an end to the perennial debate over whether the Roberts Court is biased toward business, Mayer Brown partner Lauren Goldman said.

“The results from the perspective of business were decidedly mixed,” Goldman said. “This term definitely disproves that the Robert Court is reflexively pro-business.”

Goldman’s annual tally of the high court’s business docket found that companies won 12 of the 22 cases that pitted a business against a government agency or individual. That 54 percent win rate is the lowest since 2011, when only half of the business cases were wins.

But just as is important is the fact that the wins for companies this past term were relatively narrow or half-loaves, while the losses were more broadly significant, Goldman said.

“It’s hard to say, ‘Wow, that was a big win’ ” in any business case last term, she said. One example was Omnicare v. Laborers District Council Construction Industry Pension Fund, which limited the liability companies face when expressing opinions in securities filings. But Goldman said the decision also “opened the door to broad liability on an omissions theory” if plaintiffs can show that material facts about the opinions were left out.

As for the losses, Goldman pointed to the two employment discrimination cases of the past term—Young v. UPS and EEOC v. Abercrombie & Fitch—as well the housing discrimination case Texas Department of Housing v. Inclusive Communities Project as major victories for plaintiffs. In the housing case, the court concluded that plaintiffs can make so-called “disparate impact” claims of bias, without proving intentional discrimination. Lauren said the ruling is “a blow to real estate developers and other businesses sued under the Fair Housing Act.”

Compared to recent terms, the court heard fewer cases dealing with securities class actions, arbitration, pre-emption or punitive damages. The most significant patent case, Kimble v. Marvel Enterprises, broke no new ground because it left in place a long-standing precedent that cut off royalties for inventors after a patent has expired.

Allison Zieve, director of the Public Citizen Litigation Group, agreed with Goldman that many of last term’s business cases were narrow. Most also did not raise issues pertinent to large numbers of consumers, Zieve said, so this past term does not end the debate over the court’s business docket.

“When we talk about the corporate Supreme Court, most of the cases from last term are not the cases we are talking about,” said Zieve, whose organization often represents or files friend-of-the-court briefs for consumers in arbitration and other business cases.

“We love a docket like this past term’s when class actions and arbitration are not on the docket,” Zieve added.

The wins for plaintiffs in employment and housing discrimination cases can be explained as cases in which the plain language of statutes dictated the outcome, Zieve said.

“The court is more favorable in cases of individual discrimination than with class actions,” she said. “They vote one way in the Wal-Mart class action, but they will sometimes vote the other way in the case of an individual plaintiff suing Wal-Mart.”

Goldman and Zieve agreed on this point: The next term may produce more important decisions for business. With class action and arbitration cases already docketed for argument in the fall, Goldman said, “Next term is already shaping up as more significant.”

Reprinted with permission from the July 8, 2015 edition of The National Law Journal © 2015 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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