BUSINESS LITIGATION TRENDS
THE ROBERTS COURT:
DOES BUSINESS HAVE FRIENDS IN HIGH PLACES?
Kelly Sandill
Partner, ANDREWS KURTH LLP
Houston
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Historical Supreme Court Trends
•
Justices from both political parties → more favorable to business
•
Businesses win in lower appeals court → less likely to win in USSC
•
Federal government opposition → less likely to win in USSC
•
Solicitor General support → more likely to win in USSC
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
The Roberts Court
•
Friendlier to business than Rehnquist or Burger Courts
•
Taking and reversing more cases where business lost below
•
Five of ten most pro-business Justices since 1946
•
Roberts and Alito are most favorable to business since 1946
•
Scalia, Thomas, and Kennedy have become more favorable to business
following appointment of Roberts and Alito
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Key Business Wins: 2012-2013
• American Express v. Italian Colors Restaurant
•
Validates contractual waiver of class arbitration in consumer
industry, even though the cost of arbitrating individually may
exceed recovery
• Comcast Corp. v. Behrend
•
Courts must consider the proposed method of proving
damages under the theory to be advanced at trial as part of
the inquiry on predominance of common issues for class
certification
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Key Business Wins: 2012-2013
• Gabelli, et al. v. SEC
•
5-year general statute of limitations for SEC to seek civil
penalties under the Investment Advisor Act starts when fraud
occurs, not when discovered
• Kiobel v. Royal Dutch Petroleum
•
Claims under the Alien Tort Statute must “touch and concern”
activities occurring in the U.S., not violations occurring wholly
outside of the U.S. Mere corporate presence of defendant in the
U.S. is not enough
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Key Business Wins: 2012-2013
• Mutual Pharmaceutical Co. v. Bartlett
•
Companies that make generic drugs, and therefore have to use
the same label as the original “branded” drug approved by the
federal Food and Drug Administration, cannot be sued on designdefect claims associated with those labels
• Vance v. Ball State
•
An employer is strictly and vicariously responsible under Title VII
of the Civil Rights Act for the acts of “supervisors” who are
“empowered” to take “tangible employment actions” against
lower-level employees, and not managers who merely oversee or
direct employees’ everyday activities
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Key Business Losses: 2012-2013
• Amgen v. Connecticut Retirement Plans and Trust Funds
•
Materiality is not a prerequisite to certification of a class-action
alleging securities fraud based on violations of SEC Rule 10(b)
• City of Arlington v. FCC
•
Where a statute is ambiguous or silent on the issue, federal
agencies are entitled to deference on their decisions as to the
scope of their own regulatory jurisdiction/authority
• Oxford Health Plans v. Sutter
•
Federal Arbitration Act exempts from judicial review an
arbitrator’s determination that a contract calls for class-wide
arbitration, so long as the arbitrator was “arguably construing the
contract”
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Cases to Watch: 2013-2014
•
American Chemistry Council v. EPA
•
•
Did the EPA permissibly determine that its regulation of
greenhouse gas emissions from new motor vehicles triggered
permitting requirements under the Clean Air Act for stationary
sources that emit greenhouse gases?
Chadbourne & Parke LLP v. Troice
•
Does the Securities Litigation Uniform Standards Act (SLUSA)
preclude state-law class actions alleging a scheme of fraud that
involves misrepresentations about transactions in SLUSAcovered securities?
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Cases to Watch: 2013-2014
•
Daimler AG v. Bauman
•
Does it violate due process for a court to exercise general personal
jurisdiction over a foreign corporation based solely on the fact that an
indirect corporate subsidiary performs services on behalf of the
defendant in the forum state?
• Lawson v. FMR LLC
•
Is an employee of a privately held contractor or subcontractor of a
public company protected from retaliation by the Sarbanes-Oxley Act
of 2002?
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Cases to Watch: 2013-2014
• U.S. v. Quality Stores, Inc.
•
Are severance payments to executives, managers, and other
employees who are involuntarily terminated properly classified as
employee “wages” on which FICA taxes must be withheld?
• Sandifer v. United States Steel Corporation
•
Does time spent changing in and out of safety gear qualify as
“changing clothes,” which permissibly can be excluded from the
number of hours worked and for which payment is required under
the Fair Labor Standards Act?
Business Litigation Trends
The Roberts Court: Does Business Have Friends in High Places?
Tips for Success
• Careful selection of appellate issues
• Awareness of increased success when experienced a loss in
the circuit court
• Cogent presentation of arguments by experienced counsel
• Amicus curiae briefs (Solicitor General, U.S. Chamber of
Commerce)
• Effective communications with regulators