Corporate disputes dominate Court s docket next term Patent financial oversight disputes ahead Tony Mauro September 28 2009 The U S Supreme Court begins its term Oct 5 with new Justice Sonia Sotomayor on board and a business heavy docket that seems almost tailor made to engage and challenge her More than half of the 45 cases already set for the new term focus on business a greater number than in past terms but they touch on a broad smorgasbord of issues noted Robin Conrad of the National Chamber Litigation Center at a Sept 23 briefing on the term We re struck by the breadth of the docket she said So far no employment law cases and no environmental disputes have been granted review and for the first time in a while no pre emption cases But there are potential blockbusters on patents separation of powers antitrust law and white collar crime Onto this landscape comes Sotomayor a one time intellectual property litigator and a veteran judge from the U S Court of Appeals for the 2d Circuit She comes from a circuit that prides itself on being the foremost court on issues relating to business It s ingrained in the culture said Kannon Shanmugam of Williams Connolly in Washington I don t think she ll have any hesitation to get involved In a way Sotomayor already has jumped into the business docket in her brief time on the Court During a special reargument Sept 9 in Citizens United v Federal Election Commission a dispute over the ban on independent corporate expenditures in political campaigns she made a comment that intrigued the business bar Sotomayor wondered aloud whether it was the Court s error to start with to imbue corporations with human characteristics including rights accorded to individuals Justices Ruth Bader Ginsburg and Antonin Scalia also chimed in and editorials and other commentary have followed It was a provocative suggestion that serves as an unusual overlay to the term with some wondering if Sotomayor has a re examination of the foundations of corporate law on her to do list It was a remarkable discussion said Cliff Sloan of Skadden Arps Slate Meagher Flom s Washington office speaking at the briefing held by the National Chamber Litigation Center It will be interesting to see whether it s a revealing window into the justice s mind on other issues There is fascination with the new justice inside the Court as well as outside C SPAN producer Mark Farkas who had unusual access to the justices for a major series of programs on the Court which will run starting Oct 4 said the justices are very interested in the newcomer It s a human institution said Farkas The justices get together often for lunch but discussion of cases is off limits Farkas learned It s a collegial body right now and it has not always been that way BUSINESS FIRST The term s top business case so far most agree is Bilski v Kappos a key test of whether a broad range of intangible processes and business methods can be patented After several years of being scolded by the Supreme Court for making patents too easy to obtain the U S Court of Appeals for the Federal Circuit ruled strictly in Bilski rejecting a patent for a method of hedging in commodities markets Ruling en banc the circuit said that for a method or process to gain a patent it must be tied to a machine or must cause a physical transformation In spite of the strict ruling the Supreme Court granted review leading many to think the Court will find that the Federal Circuit went too far the other way You wonder whether the Federal Circuit can ever catch a break said Deanne Maynard of Morrison Foerster Bilski will be an interesting test for Sotomayor said Edward Reines an IP expert in Weil Gotshal Manges Redwood Shores Calif office The wing of the Court that is less friendly to patents is down one with the departure of David Souter Reines said Given Sotomayor s eight years as an IP litigator at Pavia Harcourt in New York Reines added she is unlikely to be as hostile to patents as Souter was A dispute that could affect the kinds of regulatory agencies Congress creates in the wake of the financial crisis is also before the Court Free Enterprise Fund v Public Company Accounting Oversight Board the latter dubbed peekaboo an approximation of its acronym arose because members of the board created by the SarbanesOxley Act are appointed by the independent U S Securities and Exchange Commission That places the board too far outside presidential control and accountability critics say The citizenry has no authority to throw the bums out said Michael Carvin of Jones Day at a Washington Legal Foundation briefing on the upcoming term Carvin represents the challengers in the case Judge Brett Kavanaugh of the U S Court of Appeals for the D C Circuit dissenting in the decision the high court will review called it the most important separation of powers case to reach the courts in the last 20 years Then there s an antitrust case involving professional football that could have a huge effect on how much economic activity can be insulated from antitrust scrutiny said Georgetown University Law Center professor Howard Shelanski At issue in American Needle Inc v National Football League is whether the NFL should be treated as a single entity when it signs a new contract for souvenir headgear on behalf of its member teams Media mogul Conrad Black has a case before the Court challenging the interpretation of a law that makes it a crime to deprive a company or its shareholders of honest services Critics say it s a catch all statute that has become an easy tool for prosecutors At the National Chamber Litigation Center briefing Andrew Pincus of Mayer Brown said the case could tap into the Court s growing concern over the huge amounts of unreviewable discretion given to prosecutors In Jones v Harris Associates another closely watched case the question is whether shareholders of a mutual fund can sue the mutual fund advisers for charging excessive fees The case arises against a backdrop of public protest over financial industry greed In addition to the business cases significant First Amendment and criminal law cases await the justices this term In Salazar v Buono a case being monitored by veterans groups the Court will referee a battle over a cross placed on federal land in the Mojave Desert After an establishment clause complaint was raised Congress reacted by selling a parcel of land including the cross to a private owner The Court will consider whether that sale fixes the
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