After a more than decade-long hiatus, business cases — and especially anti-trust cases — are a high priority for the upcoming U.S. Supreme Court session.
Corporate America is eyeing the session, which opens Oct. 2, in anticipation that it will produce decisions that set precedence for business practices and punitive damage awards — issues that have been largely subject to lower court decisions, which some say has only muddied the legal waters.
Of the 29 cases scheduled so far for the next session, 13 are business cases, and five of those are anti-trust cases.
“We haven’t seen this kind of concentration of business cases, and anti-trust cases in quite a long time,” said attorney Roy Englert, who has argued several cases before the Supreme Court and also spoke at a conference for the National Chamber Legal Center, the legal policy making arm of the U.S. Chamber of Commerce.
“It’s not just that there are a high number of business cases,” he said. “It’s the percentage of them that’s surprising.”
Englert said five antitrust cases is unusual because until last year, only five anti-trust cases made it to the Supreme Court during the last 12 years. The court decided three cases last year.
Former Trade Commission attorney Stephen Calkin said the change is because of last year’s conservative bench appointments, especially that of Chief Justice John Roberts, who was a corporate attorney with the international law firm Hogan and Hartson.
“Very few if any of them are real liberals,” said Calkin, now a Wayne State University law school professor. “It’s clear they’re all thoughtful conservatives. They won’t be issuing populist kinds of opinions.”
Don Klawiter, outgoing chairman of the American Bar Association’s anti-trust section said the conservative bench has gotten the attention of the nation’s largest corporations.
“There’s a sense that now is a good time to get a hearing up at the Supreme Court,” he said.
Aside from being a mere clamoring for litigious justice, Klawiter believes the court recognizes that there are a wide array of business cases and issues that deserve to be addressed.
“These are issues that really go right to the heart of the U.S. economy,” he said. “They’re issues that affect all of us. Resolving them will be good for the country in general.”
But, Klawiter warned that not all the decisions handed down by the Supreme Court will set the precedence that corporations are hoping for.
“I think we could see it go both ways,” he said.
Colorado Springs attorney Lindsay Fischer is less optimistic that the upcoming session will clarify anything.
“The Supreme Court is too factionated and fractionated,” he said. “Everybody wants to put their little slant on the case, so you just don’t know what’s going to happen.”
Fischer also said the session’s business case lineup has little to do with the recent conservative appointments.
“The Supreme Court is always at the mercy of those who bring them cases,” he said. “They don’t choose them themselves.”
But Klawiter noted that court clerks are handpicked by the justices, so they’re likely to choose cases that are agreeable to the justices’ philosophies.
Speculation notwithstanding, the NCLC is hoping for decisions that will clarify some of the nation’s biggest high-stakes cases.
The cases being watched most closely by the NCLC include Philip Morris v. Williams, Mayola, which has the potential to impose stricter limits on punitive damages, easing the liability burden for corporations.
The Supreme Court will decide whether a lower court overstepped its authority when it ordered tobacco company Philip Morris to pay $79.5 million in punitive damages to plaintiffs who complained that smoking caused the death of family members.
According to a 2003 case, punitive damages should be “reasonable and proportionate” to the actual damage incurred. But the case didn’t specify what could be considered excessive.
Family members of relatives that allegedly died from smoking-related illnesses received punitive damages that were nearly 100 times the amount awarded for compensatory damages.
Two of the biggest anti-trust cases are Bell Atlantic Corp. v. Twombly and Weyerhaeuser v. Ross-Simmons Hardwood Lumber.
In Bell Atlantic Corp. v. Twombly the nation’s major telephone carriers were accused of conspiring to divide the nation’s phone market amongst themselves to create mini-monopolies.
Consumers bringing the case against the phone carriers cited “parallel conduct,” in the way AT&T, Verizon and Qwest conducted business and set prices in order to corner consumers.
One flaw in the accusation is that there is no direct evidence of a conspiracy, so the Supreme Court will decide whether a case should move into a discovery stage when there’s no evidence for the accusation.
In Weyerhaeuser v. Ross-Simmons Hardwood Lumber, Ross-Simmons Hardwood claimed that Weyerhaeuser paid to hoard logs in order to create a monopoly on the timber supply.
Lower courts awarded Ross-Simmons $78.7 million in damages, because Weyerhaeuser allegedly paid more than market price for the timber.
Other cases the NCLC is watching include a pay discrimination case against Goodyear Tire and Rubber Co. and a regulatory pre-emption case involving Wachovia Corp, a global warming case against the Environmental Protection Agency filed by Massachusetts and a patent law case.
Rob.Larimer@csbj.com