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19 September 2011

Mayer Brown Highlights Key Business Cases
in Upcoming Supreme Court Term


Washington, D.C., 19 September 2011 – As the Supreme Court prepares to begin its next term on Monday, October 3, 2011, Mayer Brown’s Supreme Court & Appellate Practice Group – the largest and most experienced group of appellate litigators in the country – has identified the most important business cases on the Court’s docket.  These cases involve a wide range of issues, including First Amendment rights, federal preemption, arbitration, and intellectual property. 

While preparing for this Term’s opening, it’s important to note the balance in the Supreme Court’s recent business decisions.  According to the firm’s research, of the 18 cases in the previous Term that pitted individual plaintiffs against business entities, business interests were victorious in nine, just half the cases.  This analysis is consistent with the Court’s recent track record and demonstrates that the Court has not become decidedly pro-business, as some reports have claimed. 

Partners in the Supreme Court Group, including Donald Falk, Dan Himmelfarb, and Andrew Pincus, have been monitoring the upcoming Term closely.  They are available to discuss the most significant business cases and the implications of the Court’s rulings in them.  They have identified five key cases of particular interest to the business community:

  • FCC v. Fox Television Stations:  Perhaps the most anticipated case currently on the Court’s calendar, the Justices will review the constitutionality of the Federal Communications Commission’s (FCC) standards for indecency and nudity on television, stemming from the use of fleeting expletives uttered during two awards shows on Fox and scenes of a nude woman during an episode of “NYPD Blue.”  The primary question in this case is whether the FCC standards are too vague to be constitutional.  The oral argument has not been scheduled yet.
  • CompuCredit Corp. v. Greenwood:  After a number of arbitration decisions last term, the Supreme Court will once again consider this area of law.  In this case, the Court will determine whether Congress intended to make claims arising under the Credit Repair Organization Act, which was passed to protect the public from unfair or deceptive advertising and business practices by credit repair organizations, non-arbitrable.  The argument has been scheduled for October 11, 2011.
  • Kappos v. Hyatt:An important intellectual property case, the primary question involves the process for appealing the denial of a patent application.  The Court will determine whether an inventor who appeals the Patent and Trademark Office’s (PTO) denial of a patent application may introduce new evidence in court that could have been, but was not, presented to the PTO.  The Supreme Court will also address whether courts are required to give deference to the PTO’s prior decision during a patent application appeal.  A hearing has not yet been scheduled. 
  • Sackett v. EPA:  The Supreme Court will address the role of pre-enforcement judicial review of environmental compliance orders.  Currently, the Environmental Protection Agency (EPA) may issue an administrative compliance order requiring a landowner, who is suspected of violating environmental regulations, to take certain actions.  If the landowner does not comply, the EPA may seek judicial enforcement of the order.  The primary question in this case is whether the landowner can challenge the administrative compliance order in court before the EPA seeks judicial enforcement.  The oral argument for this case has not yet been scheduled.  
  • National Meat Association v. Harris:  One of the key preemption cases this term, the Court will address whether the Federal Meat Inspection Act, which requires slaughterhouses to hold for observation animals that become unable to walk, preempts a state law that requires such animals to be killed immediately.  The hearing for this case has not been scheduled.               

While this list represents some of the most important business cases already on the Supreme Court’s docket, more will be added in the months ahead.  One potential issue the Court may consider is the challenge to President Obama’s healthcare reform legislation.  Given the high-profile nature of this issue, it would likely become the most anticipated decision of the Term if the Court agrees to hear it.  

Mayer Brown’s appellate team, which is comprised of roughly 55 members, has argued 220 cases before the Supreme Court and is scheduled to argue at least two more in the coming Term.  The group specializes in appellate business litigation and carefully tracks the business cases that come before the Supreme Court. 


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