29 June 2016
U.S. Supreme Court litigator Jeffrey Wall of Sullivan & Cromwell said recently that if he reads another news story asserting that the Roberts Court is biased toward business interests, "my head may explode."
Wall may be spared that fate by what U.S. Chamber Litigation Center chief counsel Kate Comerford Todd described as a "mixed bag" for business in the court term just ended. Of the 13 argued cases in which the U.S. Chamber of Commerce filed briefs, Todd is labelling seven as wins, five as losses, and one "other."
Using a different metric, Mayer Brown partner Lauren Goldman, who also tallies the high court's business docket annually, counted 11 wins among the term's 18 business cases — the lowest number of business cases overall since 2009.
Goldman attributes the low number in part to the death of Justice Antonin Scalia in February, which led to two 4-4 ties in business cases, which she did not include in her count. Goldman is co-head of Mayer Brown's worldwide litigation and dispute resolution practice.
Important Chamber wins for business in regulatory cases involved the Equal Employment Opportunity Commission (CRST v. EEOC) and the Administrative Procedure Act (U.S. Army Corps of Engineers v. Hawkes) balanced some stinging defeats.
The losses came mainly in the class action category, where the majority favored plaintiffs to a degree that is unusual from a court that has seemed inclined to thwart class actions at every turn. Scalia's death in February may have also slowed the momentum of that trend, given that he was a leader in checking the growth of class actions.
Wall cited the losses in the class action cases, Campbell-Ewald Company v. Gomez and Tyson Foods v. Bouaphakeo to support his view that the Roberts Court cannot be characterized as consistently pro-business. In both cases the court kept class actions alive.
Elizabeth Wydra of the liberal Constitutional Accountability Center, who also tracks the court's business cases, said, "There were a lot of big wins for the chamber and some notable losses, but it still is the case that the Roberts Court is very pro-business. That doesn't change because of a few losses." Wydra filed a brief in Campbell-Ewald, which closed off a path used by defendants to thwart class actions.
Another class action dispute, Spokeo v. Robins, was a win for business, according to Todd. In that case, the court sent a class action back to lower courts for further scrutiny — though under a stricter definition of injury.
"The court avoided giving some outright victories to either plaintiffs or defendants" in several cases including Spokeo, said Daniel Sullivan of Holwell Shuster & Goldberg in New York, a former Scalia clerk.
But Mayer Brown's Andrew Pincus, who argued the case for Spokeo, thinks that in spite of its lack of finality the ruling "may have a bigger impact" than any other business ruling in the term just ended. By requiring "concrete injury" as a prerequisite for mounting a class action, the Spokeo ruling has already led to the dismissal of numerous class actions in federal courts nationwide, he said.
Goldman counts as business losses Kirtsaeng v. John Wiley & Sons on attorney fees in copyright cases, and Bank Markazi v. Peterson, which upheld a law that allows U.S. victims of Iranian terrorism to recover damages from Iran's central bank.
Neither the chamber nor Mayer Brown include in their analyses cases in which one company sues another — which leaves out most intellectual property cases. Instead they focus on litigation between an individual and a company or the government and a company.
The high court also sided with business in DIRECTV v. Imburgia, which protected arbitration clauses in service agreements; Encino Motorcar v. Navarro, involving the Fair Labor Standards Act; and RJR Nabisco v. European Community, which limits the application of the federal racketeering law to injuries suffered outside the United States.
"Most of the other business decisions were fairly narrow and unlikely to have a major impact either on the ways in which corporations run their operations or on the ways in which business cases are litigated in federal court," Goldman stated.
Reprinted with permission from the June 29, 2016 edition of The National Law Journal © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.