1998-134-4_newSnappy reclines. The Empire State Building looms in the mid-distance. Bitey consults his notes. He clears his throat.

Bitey:    The U.S. Supreme Court's summer break started last week, Snaps, and the time has come for us to look at the . . . uh . . . results of the 2012-13 Term for those commercial cases we love so dear.

Snappy:    Polonius said "brevity is the soul of wit." Please model yourself on that maxim.

Bitey:    You mean the guy who talked way too much? Hid behind a curtain? Said "very like a whale"? And took a Hamlet knifing that killed him?

Snappy:    You prove my point by missing it.

Bitey:    Ouch.

Snappy:    You do it to yourself, my dear Bitey.

Bitey:    Anyways, I count 15 Supreme Court cases that involved commercial issues — the kind of questions that tend to pit Company A against Entity B.

Snappy:    And how did Big Business do against the Little Guy?

Bitey:    Oh, quite well, Your Snappiness. I can tell because those nice liberterian people at the Cato Institute said they "went 15-3" in cases it briefed to the Court this Term! And Cato won all four of the commercial cases it weighed in on. Not to mention the U.S. Chamber of Commerce's National Chamber Litigation Center, which did almost as well, going 6-2.

Snappy:    Did Polonius say anything about the rich getting richer?

Bitey:    I think you mean Andrew Jackson, Snapster.

Snappy:    Not. Have you tallied the results of the 15 cases, pray?

Bitey:    Yes, indeed I have done that.

Snappy:    And?

Bitey:    By my count, big business won 10 ouf of the 15.

Snappy:    That sounds awful. But not horrific? Please tell me the details.

Bitey:    Okie dokie. Here goes. I put the pro-big biz outcomes in red and left the others in black.

Alien torts

Does the Alien Tort Statute, which Congress passed in 1789 to allow "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States", cover a law-of-nations violation that occurs outside the U.S. (in Nigeria, say)?

No. The ATS will almost never apply to alien torts that take place in an alien nation. Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Apr. 17, 2013) (Cato & Chamber win) (per Roberts, with Scalia, Kennedy, Thomas, and Alito joining; dissent per Breyer, with Ginsburg, Sotomayor, and Kagan joining).


Does the "state-action" doctrine, which bars federal antitrust claims, apply to a Georgia law that gave public hospital authorities the power to buy rival hospitals?

No. The Peach State statute did not make clear that Georgia cared not a fig if anticompetitive effects ensued from using the power in order to squelch competition. FTC v. Phoebe Putney Health Sys., Inc., No. 11-1160 (U.S. Feb. 19, 2013) (per Sotomayor, for a unanimous Court).

May a drug-maker pay a rival not to compete with it on sales of a drug so long as the payor has a patent that on its face gives it the right to stop the rival from competing?

No. Antitrust law may condemn the pact, and allow recovery of damages or other relief, if the deal unduly hurts competition. The bigger the payment to the infringer, the more likely the arrangement harms competition. FTC v. Actavis, Inc., No. 12-416 (U.S. June 17, 2013) (per Breyer, with Kennedy, Ginsburg, Sotoyamor, and Kagan joining; dissent by Roberts, with Scalia, and Thomas joining; Alito recused himself).


Does the federal Arbitration Act bar arbitration clauses that make winning a federal claim too costly for a sane person to pursue?

No. "Too darn bad", says the dissent. Am. Express Co. v. Italian Colors Restaurant, No. 12-133 (U.S. June 20, 2013). (Chamber win) (per Scalia, with Roberts, Kennedy, Thomas, and Alito joining; dissent by Kagan, with Ginsburg and Breyer joining; Sotoyamyor recused herself).


Does the bar to discharge in bankruptcy under 11 U.S.C. 523(a)(2)(A) of a claim for "defalcation while acting in a fiduciary capacity" require knowledge or reckless disregard of the improper nature of the bankrupt debtor's conduct?

Yes. You can't prevent discharge of a claim against a fiduciary unless you prove that the fiduciary had a bad intent. Bullock v. BankChampaign, N.A., No. 11-1518 (U.S. May 13, 2013) (per Breyer, for unanimous Court).

Class/Collective Actions

Must a plaintiff who alleges a fraud claim under the Securities Exchange Act of 1934 prove the "materiality" element of the claim in order to obtain class treatment of the claim on behalf of all fraud victims under Rue 23(b)(3) of the Federal Rules of Civil Procedure?

No. Because the answer to the materiality question will apply to all class members alike, Rule 23(b)(3) does not require a court to assess the evidence for and against a finding of materiality and instead defers the question to the summary judgment and trial stages of the case. Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013) (Chamber loss) (per Ginsbrug, with Roberts, Breyer, Alito, Sotomayor, and Kagan joining; dissent by Scalia, with Kennedy and Thomas joining).

Does an arbitrator's ruling on whether the parties' contract permits class treatment of claims bind the parties under the federal Arbitration Act?

Yes. Even a dumb ruling by an arbitrator carries the day so long as he ties it somehow to the contract. Oxford Health Plans LLC v. Sutter, No. 12-135 (U.S. June 10, 2013) (Chamber loss) (per Kagan, for unanimous Court).

Does the mootness of a plaintiff's own claim under the Fair Labor Standards Act of 1938 also moot his effort to sue on behalf of others?

Yes. If offering to pay full damages and costs to the plaintiff in fact moots his claim — a matter of great dispute between the majority and dissenters — he cannot represent others in a collective action (or, presumably, in a class action). Genesis Healthcare Corp. v. Symczyk, No. 11-1059 (U.S. Apr. 16, 2013) (Chamber win) (per Thomas, with Roberts, Scalia, Kennedy, and Alito joining; dissent by Kagan, with Ginsburg, Breyer, and Sotomayor joining).

Did the plaintiffs' model that proved class-wide damages from Comcast's drive to thwart cable competition in greater Philadelphia prove class-wide damages?

No. The majority read the record to establish that the model did not match the anticompetitive conduct with the resulting harm in all 16 counties. (Blawgletter respectfully begs to differ.) Comcast Corp. v. Behrend, No. 11-864 (U.S. Mar. 27, 2013) (Cato & Chamber win) (per Scalia, with Roberts, C.J., and Kennedy, Thomas, and Alito joining; dissent by Ginsburg and Breyer, with Sotoymayor and Kagan joining).

May a plaintiff defeat removal of a class action case from state to federal court under the Class Action Fairness Act of 2005 by claiming that the amount in dispute falls below the $5 million threshold for removal?

No. The plaintiff cannot bind the absent class members before class certification. Standard Fire Ins. Co. v. Knowles, No. 11-1450 (U.S. Mar. 19, 2013) (Cato & Chamber win).


Does the "first sale" doctrine of copyright law defeat claims against U.S. sales of copies that began life overseas? 

Yes. You can import into the U.S. books and copies of other works that someone lawfully made outside the U.S. Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S. Mar. 19, 2013) (per Breyer, with Roberts, Thomas, Alito, Sotomayor, and Kagan joining; dissent by Ginsburg, with Kennedy and Scalia joining (Scalia only in part)).


Did Monsanto "exhaust" its right to stop infringement of its patent on a strain of soybeans when it sold beans that could produce infringing crops in the future?

No. The defendant's "blame the bean" defense did not persuade the Court. Bowman v. Monsanto Co., No. 11-796 (U.S. May 13, 2013) (per Kagan, for a unanimous Court).

Does U.S. patent law allow patents on tests that flag a patient's higher risk of getting cancer by detecting an abnormal gene sequence that influences the cancer risk?

No. You can't patent a law of nature or a process that simply uses a law of nature. Ass'n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (U.S. June 13, 2013) (per Thomas, with Roberts, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan joining; Scalia concurred in part and in judgment).


Does the "discovery rule" stop the five-year statute of limitations from running against the federal government on a civil claim for violation of the Investment Advisors Act?

No. Although private parties may invoke the discovery rule under federal securities law, the feds cannot. Gabelli v. SEC, No. 11-1274 (U.S. Feb. 27, 2013) (Cato & Chamber win) (per Roberts, for unanimous Court).


Does a broad promise not to sue for trademark infringement and like state-law claims moot a claim for a judgment declaring the trademark invalid?

Yes. A covenant not to sue can remove any real risk of a lawsuit and therefore moot the dispute. Already, LLC v. Nike, Inc., No. 11-982 (U.S. Jan. 9, 2013) (per Roberts, for unanimous Court; Kennedy concurred, and Thomas, Alito, and Sotomayor joined him).

Snappy:    Thanks, Bitey. I learned a lot! But I get the feeling that plaintiffs did worse than the 10-5 tally suggests. Do you think so?

Bitey:    Absolutement, Snappers. Remember that Cato won all four of its cases, and the Chamber's NCLC lost only two out of eight. The wins will have wider impact than the losses.

The Cato angle reminds me of Inspector Clouseau. Without the humor.