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Five Business Cases to Watch in the Upcoming Supreme Court Term


September 18, 2017

Cases to Watch in the Upcoming Supreme Court Term

The U.S. Supreme Court starts its new term this month, and the justices will begin hearing oral arguments on October 2. Now back to full strength, the Court has agreed to consider several important cases that will impact the business community.

Five Cases To Watch This Supreme Court Term

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The Roberts Court is often characterized as “business friendly.” In fact, an updated study found that, under the leadership of Chief Justice John Roberts, the justices rule in favor of business litigants over 60 percent of the time.  That’s the highest percentage since World War II. New justice Neil Gorsuch is also predicted to favor business interests.

Of course, there is no guarantee that the trend will continue as the Court takes up the following business litigation cases:

(1) Epic Systems Corp. v. Lewis: In three high-profile cases involving employment contracts, the justices will address whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act. After President Trump took office, the Office of the Solicitor General reversed its position to side with employers, concluding that employment agreements that bar class-action suits are enforceable. 

(2) National Association of Manufacturers v. Department of Defense: The Court must decide which courts (district or federal appeals courts) have jurisdiction to decide challenges to the “waters of the United States” rule, which defines the scope of the Clean Water Act. The justices elected to still hear the case even though the U.S. Environmental Protection Agency (EPA) and Army Corp of Engineers are seeking to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining “waters of the United States” (WOTUS).

(3) Oil States Energy Services Group v. Greene’s Energy Group: The question before the Court in the high-profile intellectual property case is whether an inter partes review (IPR) proceeding conducted by the Patent Trial and Appeal Board (PTAB) under the America Invents Act (AIA) is constitutional. The IPR is an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents. The petitioners argue that the administrative procedure, which was established in 2012 under the America Invents Act, violates the Constitution because suits to invalidate patents which must be tried before a jury in an Article III forum, and not in an agency proceeding. 

(4) Digital Realty Trust v. Somers: The Supreme Court has agreed to consider a question that has deeply divided the federal courts of appeal — who qualifies as a whistleblower under the Dodd-Frank Act. The specific question before the Court is whether the financial reform law’s anti-retaliation provision for “whistleblowers” extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission (SEC).

(5) Marinello v. United States: The justices will settle a circuit split over whether a conviction under the U.S. Tax Code for “corruptly endeavoring to obstruct or impede the due administration of the tax laws” requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action. The Second Circuit Court of Appeals, and three other circuits have held that a defendant may be guilty of obstructing the administration of the tax code even if the defendant has no knowledge of a pending IRS action or proceeding or even if there is no pending IRS action or proceeding.

Of course, New Jersey residents and businesses will also be closely watching Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Association v. NCAA, which will determine the fate of the state’s bid to legalize sports gambling. In addition to determining the constitutionality of the Professional and Amateur Sports Protection Act, the Court’s decision may impact other areas of the law where the federal government has arguably “commandeered” the regulatory power of the states.

For more information about the legal issues involved or if you have any questions, please contact me, Michael A. Jimenez, Esq., Counsel of Scarinci & Hollenbeck’s Government Law Group, at 201-806-3364.

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