Supreme Court Getting ‘Back to Business’ in Fall Term, U.S. Chamber Groups Say
By Rashee Raj Kumar | September 24, 2012 5:51 pm

Nearly half of the U.S. Supreme Court’s 2012 docket concerns business cases, a big change from the last term, experts said Friday at an business lobby event previewing the coming court term.

“After a term overshadowed by health care and immigration, we are pleased to see that the Supreme Court is going to get back to business,”said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, which litigates cases of importance to business. “So far this term, 48 percent of the cases on the court’s docket are business cases.” 

The NCLC is an arm of the U.S. Chamber of Commerce. Conrad hosted appellate practitioners Andy Pincus, partner at Mayer Brown, and Lisa Blatt, partner at Arnold & Porter LLP, to discuss the business cases at an event in the Chamber’s Washington, D.C., headquarters.

One important case is the upcoming re-argument of Kiobel, et al. v. Royal Dutch Petroleum. The putative class action was brought on behalf of Nigerians from the Ogoni area of the Niger Delta alleging the Angl0-Dutch oil company was complicit in torture, executions and other crimes against humanity committed in Nigeria.

Although the case, which centers on the controversial Alien Tort Statute, was argued last year, the Supreme Court ordered supplemental briefing and re-argument during the 2012 term. The new argument is scheduled for Oct. 1, 2012.

“The issue on re-argument is whether the statute applies extraterritorially,” Pincus said. A lower court in this case held that victims could bring a cause of action in the U.S. for violations of the law of nations occurring outside of the United States, such as torture in an African nation where a U.S. corporation is doing business. There are several amicus briefs on both sides of the issue.

Blatt is handling a similar case involving the Alien Tort Statute in the Second Circuit. “I don’t blame the court for being frustrated,” she said, noting that it the ATS is a one-sentence statute passed in 1789 that sat dormant for over 200 years. The NCLC filed an amicus brief with the Supreme Court arguing that the ATS does not apply extraterritorially, contradicting the U.S. Solicitor General’s position. A decision in this case will have a huge impact on businesses with overseas operations and competitors, and it could put U.S. businesses at a disadvantage, the Chamber has argued.

Another hot issue this term is the class action lawsuit. “Class actions feature pretty dominantly this term,” Blatt said. Blatt calls this change “a recognition that the whole war is won or lost at the certification stage.” Comcast Corp. v. Behrend examines the order of operations in which courts should handle things in a class action. The Third Circuit’s decision essentially allows a class to be certified before the merits and viability of the claim are determined.

That decision is in conflict with the Supreme Court’s recent decision in Wal-Mart v. Dukes, where much of the case must be squared away prior to certification. An easier certification process could mean that corporations will be under pressure to settle more often, because plaintiffs’ cases will not likely get thrown out early in the process. The NCLC suggests that billions of dollars are already spent annually settling class actions, creating “a drag on the American economy that is ultimately passed on to consumers, employees, and shareholders.”

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