Although the new Term did not officially begin until today, the
Supreme Court on September 29 issued an order list granting certiorari in eleven
cases and noting probable jurisdiction in one case. Today it issued an order
list granting certiorari in four additional cases. Seven of the granted cases
are of potential interest to the business community. For cases that were granted
on September 29, amicus briefs in support of the petitioners are due on November
10, 1998, and amicus briefs in support of the respondents are due on December 8,
1998. For the one business case that was granted today, amicus briefs in support
of the petitioner are due on November 19, and amicus briefs in support of the
respondents are due on December 21 (because December 19 is a Saturday). Also on
today's order list, the Court asked for the government's views in three cases
that are of interest to the business community. Any questions about these cases
should be directed to Alan Untereiner (202-778-0656) or Donald Falk
(202-778-0174) in our Washington office.
With this issue, Evan Tager
formally retires as a co-editor of the Docket Report. We wish to thank Evan for
his many contributions to this publication over the years, and welcome his
successor, Donald Falk, who has graciously agreed to help carry this project
1. State Action — Procedural Due Process
— Suspension of Workers' Compensation Benefits Pending Medical Utilization
Review. Virtually every state in the country requires employers to obtain
workers' compensation insurance to pay for medical care for employees'
job-related injuries. Many states have also passed cost-containment measures
that permit insurers to suspend payment when disputes arise over the
appropriateness of medical care. On September 29, the Court granted certiorari
in American Manufacturers Mutual Insurance Co. v. Sullivan, No.
97-2000, to determine whether a private insurance company that invokes medical
utilization review and withholds payment of disputed bills during that review
thereby becomes a "state actor" and, if so, whether due process bars the
withholding by insurers of payments from health care providers until the
affected employee is given an opportunity to be heard concerning the
reasonableness and medical necessity of his treatment.
Under the Pennsylvania Workers' Compensation Act, an insurance
company that pays for work-related medical care cannot recoup those payments
even if the care is later determined to be unreasonable or unnecessary. If an
insurance company believes that medical care is unreasonable or medically
unnecessary, however, the insurer may request utilization review by filing a
simple form with the Pennsylvania Bureau of Workers' Compensation. The Bureau
forwards the request to an independent utilization review organization, and
notifies the employee, the insurer, and the medical provider that review has
been requested. 34 Pa. Code § 127.453. The insurer is not required to pay for
disputed treatment during the pendency of utilization review.
Utilization review is conducted by an independent medical
professional with the same specialty as the physician whose treatment is
reviewed. Ibid. The reviewer must give the medical care provider an
opportunity to discuss treatment decisions. 34 Pa. Code § 127.469. Review is
based solely on the medical records of the treating provider and any discussions
the reviewer may have with that provider. 34 Pa. Code §§ 127.461, 127.469. The
reviewer applies "generally accepted treatment protocols" and a presumption that
disputed treatment is reasonable and necessary. Id. §§ 127.467,
127.471(b). Neither the insurer nor the employee has a right to provide input
during utilization review.
Ten individual employees, joined by two organizations that
represent Pennsylvania employees, brought suit under 42 U.S.C. § 1983, claiming
that the withholding of payment for disputed treatment pending utilization
review violated their right to procedural due process. They named as defendants
not only various Pennsylvania officials involved in administering the workers'
compensation system but also eight private insurance companies. The district
court dismissed the case against the insurance company defendants on the ground
that they were not state actors and thus not subject to constitutional
constraints. 913 F. Supp. 895 (E.D. Pa. 1996). In an unpublished decision, the
district court later dismissed the action against the remaining defendants on
the ground that the utilization review scheme does not violate procedural due
The Third Circuit reversed both rulings. 139 F.3d 158 (1998).
In analyzing the state action issue, the court of appeals emphasized that
workers' compensation is an exclusive and mandatory system for compensating
work-related injuries and that the state requires the payment of workers'
compensation benefits. Id. at 168. The court also noted that workers'
compensation is comprehensively regulated by the state. Ibid. In the
court of appeals' view, private insurers that provide workers' compensation
benefits become, "[i]n effect, * * * an arm of the State, fulfilling a uniquely
governmental obligation under an entirely state-created, self-contained public
benefit system." Ibid.
Turning to the issue of procedural due process, the Third
Circuit characterized the private interest at stake as the interest in continued
medical treatment rather than a pecuniary interest in timely payment of medical
bills to health care providers. 139 F.3d at 175. The court of appeals declined
to consider the insurers' interest in not paying for unnecessary or unreasonable
care. Id. at 175. The court concluded that the state's interest in
deterring unreasonable or unnecessary care and in minimizing the cost of
workers' compensation insurance was outweighed by the private interest of the
employees. Id. at 176. The court accordingly declared the Pennsylvania
scheme unconstitutional because it did not allow affected employees an
opportunity to be heard prior to insurers' withholding of payments.
The Court's resolution of the state action issue in this case
could have significant ramifications for a broad range of businesses in heavily
regulated industries, including insurance companies, common carriers, and public
utilities. The Court's disposition of the due process issue should also be of
great interest to insurance companies, health maintenance organizations, and
other businesses that participate in a wide range of state and federal benefit
programs where analogous cost-containment measures are used.
Mayer, Brown & Platt is counsel of record for the insurance
company petitioners in this case.
2. Antitrust — "Quick Look" Rule of
Reason — FTC Jurisdiction over Nonprofit Corporations. The Court granted
certiorari on September 29 in California Dental Association v. Federal
Trade Commission, No. 97-1625, to decide two questions: (1) whether the
Federal Trade Commission ("FTC") has jurisdiction over nonprofit professional
associations; and (2) under what circumstances may an abbreviated or "quick
look" rule-of-reason analysis be applied to condemn a business practice under
the antitrust laws.
The California Dental Association ("CDA") is an incorporated,
nonprofit trade association. Membership in CDA is not compulsory, but 75% of
California's practicing dentists belong. As a condition of membership, dentists
agree to follow CDA's Code of Ethics, and face disciplinary action for
violations. One provision of the Code prohibits advertising that is "false or
misleading in any material respect." CDA and its affiliates have interpreted
that provision to preclude certain statements in advertising altogether and to
require that detailed disclosures accompany other statements.
In the FTC's view, the interpretation and enforcement of CDA's
advertising restriction effectively prohibits a wide range of price advertising
(e.g., the advertising of discounted, "low," "reasonable," or "affordable" fees)
and non-price advertising (e.g., claims of "quality dentistry" or "latest
techniques"). The FTC has jurisdiction to "prevent * * * corporations * * * from
using unfair methods of competition," 15 U.S.C. § 45(a)(2); and under the FTC
Act, a "corporation" includes "any company * * * or association * * * organized
to carry on business for its own profit or that of its members." Id. §
44. After an administrative proceeding, the FTC held that it had jurisdiction
over CDA and that CDA's advertising guidelines, as interpreted and enforced,
restrained competition among dentists in California in violation of Section 1 of
the Sherman Act, 15 U.S.C. § 1, and Section 5 of the FTC Act, 15 U.S.C. § 45.
The FTC concluded that CDA's restrictions on price advertising
were illegal per se, and that in any event both the price and non-price
advertising restrictions violated the antitrust laws when given a "quick look"
under the rule of reason. Under "quick look" analysis, business practices that
are inherently anticompetitive may be condemned without full proof of the
defendant's market power or the anticompetitive effects of the challenged
A divided panel of the Ninth Circuit affirmed. 128 F.3d 720
(1997). The majority held that the FTC had jurisdiction over any organization
that "provides tangible, pecuniary benefits to its members." Id. at
725-726. The court of appeals did not agree with the FTC's alternative holding
that CDA's restrictions on price advertising violated the per se rule against
price-fixing. The Ninth Circuit majority did agree, however, that all of the
challenged restrictions were subject to "quick look" review and that they
violated the antitrust laws on that basis, finding that the restrictions could
not be justified as efforts to prevent deceptive advertising. Id. at
Judge Real dissented on both jurisdiction and the merits. Judge
Real believed that a nonprofit professional association like CDA was not subject
to FTC jurisdiction unless the association operates commercially or regulates
economic competition among its members. Judge Real also concluded that CDA's
advertising restrictions were "not sufficiently anticompetitive on their face"
and therefore could not be condemned without a full rule-of-reason analysis that
balanced anticompetitive effects against procompetitive benefits. 128 F.3d at
The Ninth Circuit's jurisdictional holding accords with
decisions of the Second Circuit (American Medical Ass'n v. FTC,
638 F.2d 443 (2d Cir. 1980), aff'd by an equally divided Court, 455 U.S. 676
(1982)) and Seventh Circuit (FTC v. National Comm'n on Egg
Nutrition, 517 F.2d 485 (7th Cir. 1975)), but conflicts with an Eighth
Circuit decision holding that nonprofit organizations are entirely beyond the
reach of the FTC (Community Blood Bank of Kansas City Area, Inc. v.
FTC, 405 F.2d 1011 (1969)).
The courts of appeals also disagree on when "quick look"
analysis is appropriate. Some courts have applied the abbreviated analysis only
when the challenged practice is a "naked restraint" which "on its face"
restricts price and output. See United States v. Brown University,
5 F.3d 658, 669 (3d Cir. 1993); Illinois Corporate Travel, Inc. v.
American Airlines, 806 F.2d 722, 724 (7th Cir. 1986). In addition, some
courts of appeals require a full inquiry under the rule of reason once the
defendant in a "quick look" case proffers a plausible procompetitive
justification for the challenged restraint. See, e.g., Brown University, 5 F.3d
at 676-677; Vogel v. American Soc. of Appraisers, 744 F.2d 598,
601 (7th Cir. 1984).
This case is of acute interest to nonprofit trade associations,
particularly those in industries in which the FTC has been active. The FTC's
approach to antitrust enforcement historically has been more aggressive than
that of the Department of Justice. In addition, the growing use of "quick look"
analysis as a short-cut to finding antitrust liability make the substantive
antitrust issues of critical importance to companies whose success makes them
targets for antitrust litigation.
3. Commerce Clause — Due Process — State
Corporate Taxation. Alabama levies a franchise tax on Alabama corporations
based on the par or stated value of their stock, but taxes foreign corporations
based on the market value of the "capital" (broadly defined) that they actually
employ in Alabama. As a result, foreign corporations pay more than five times
the tax they would pay if they were incorporated in Alabama. On September 29,
the Court granted certiorari in South Central Bell Telephone Co. v.
Alabama, No. 97-2045, to consider whether Alabama's franchise tax scheme
impermissibly discriminates against interstate commerce. The Court also will
consider whether the Alabama Supreme Court deprived petitioners of due process
when it held that a prior judgment in a case to which they were not parties, in
which they were not represented, and of which they received no notice, precluded
them from pursuing their federal constitutional challenge to the tax.
Two corporate taxpayers, South Central Bell Telephone Company
and CSX Transportation, Inc., filed suit in Alabama state court challenging the
franchise tax under the Commerce Clause. The trial court agreed with the
taxpayers that the franchise tax violated the Commerce Clause, but nonetheless
entered judgment for the state. Under Alabama res judicata principles, the
taxpayers were bound by a decision of the Alabama Supreme Court that rejected an
identical challenge to the franchise tax while South Central Bell's challenge
was pending in the trial court. See White v. Reynolds Metals Co.,
558 So.2d 373 (Ala. 1989), cert. denied, 496 U.S. 912 (1990). South Central Bell
and CSX, however, were not parties to White, were not represented in that
action, and received no notice that their rights would be adjudicated in it.
The Alabama Supreme Court affirmed by a 5-4 vote. 711 So. 2d
1005 (1998). Although four of the five justices in the majority did not explain
their vote, Justice Maddox, concurring specially, reasoned that South Central
Bell and CSX were bound by White because they were aware of that litigation when
they filed suit and they recognized that the final outcome of White would govern
the disposition of their challenge. Justice See's dissenting opinion found it
"inescapable" that the Alabama franchise tax scheme runs afoul of the Commerce
Clause under the Supreme Court's current analysis. Id. at 1008. The
dissenting opinion concluded that res judicata did not apply.
The Alabama franchise tax scheme appears to favor domestic
corporations over foreign competitors in a way that was forbidden in Fulton
Corp. v. Faulkner, 516 U.S. 325, 333 (1996). The res judicata
holding, in turn, seems inconsistent with Richards v. Jefferson
County, 517 U.S. 793 (1996). In Richards, another state tax case from
Alabama, the Court held that the Due Process Clause of the Fourteenth Amendment
precluded Alabama from binding a litigant to a prior judgment to which he was
not a party. Id. at 805.
This case is of obvious interest to any corporation that
conducts business in Alabama, but the Supreme Court's formulations of its
dormant Commerce Clause and claim preclusion analyses may also have wider
significance. South Central Bell gives the Court an opportunity further to
constrain the efforts of state legislatures to use taxation to favor domestic
businesses, and the efforts of state courts to prevent taxpayers from recovering
4. Derivative Suit — Nonparty Appeal —
FRCP 23.1.In Marino v. Ortiz, 484 U.S. 301, 304 (1988), the
Supreme Court held that "only parties to a lawsuit * * * may appeal" and that a
nonparty should seek intervention for purposes of appeal. If the motion to
intervene is denied, that decision could be appealed. Marino involved white
police officers seeking to challenge a class action settlement between black
officers and police authorities pursuant to Rule 23. On September 29, the
Supreme Court granted certiorari in California Public Employees' Retirement
System v. Felzen, No. 97-1732, to determine whether a nonparty
shareholder challenging a settlement in a derivative action may appeal an
adverse decision upholding the settlement even though the shareholder had not
sought to intervene in the action (but did object to the settlement pursuant to
In the wake of federal criminal antitrust investigations of
Archer Daniels Midland ("ADM"), resulting in a fine of $100 million, several
shareholder derivative actions were filed against ADM directors and consolidated
before the United States District Court for the Central District of Illinois.
Plaintiffs' counsel and attorneys for ADM and its directors agreed to an $8
million dollar settlement, a fraction of the $190 million originally sought for
reimbursement of criminal fines and civil settlements paid by ADM. The
settlement also endorsed various corporate governance reforms that ADM had
earlier adopted. Half of the $8 million was earmarked for plaintiffs' attorneys'
fees, the other half for future ADM legal fees for implementing various reform
measures. No money was assigned to the corporation to reimburse shareholders for
the lost $190 million.
Pursuant to Fed. R. Civ. P. 23.1, the district court notified
shareholders of the proposed settlement and the petitioners, California Public
Employees' Retirement System ("CalPERS") and the Florida State Board of
Administration ("FSBA"), two large ADM shareholders, filed objections and
appeared at a hearing. Nonetheless, the district court approved the settlement.
CalPERS and SBA appealed.
In an opinion written by Judge Easterbrook, the Seventh Circuit
dismissed the appeal because CalPERS and FSBA had not intervened as parties
below. 134 F.3d 873 (1998). The court of appeals held that Marino compelled
dismissal because petitioners were not parties below. Although class actions as
in Marino are governed by Rule 23 and derivative suits are governed by Rule
23.1, the court held that it made no difference for purposes of nonparty
appeals. Indeed, the court believed that nonparty shareholders in derivative
suits have an even weaker claim to be permitted to appeal than nonparties to a
class action because shareholders sue on behalf of injuries to the corporation
(rather than for their own injuries). Thus, the court held that the Marino rule
applied a fortiori to derivative actions. The court found additional authority
for its holding in Fed. R. App. P. 3(c), which requires a notice of appeal to
"specify the party or parties taking the appeal."
The Seventh Circuit's decision arguably is in tension with its
own precedent (Tryforos v. Icarian Development Co., 518 F.2d 1258
(1975) (Stevens, J.)), and it conflicts with decisions of the Third and Tenth
Circuits (Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir.
1993); Rosenbaum v. MacAllister, 64 F.3d 1439 (10th Cir. 1995)).
This case should be of interest to all publicly held
corporations as well as to large pension funds and other institutional
5. Deference To Agency Interpretation of
Statute — Tariff Classification. In Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the Supreme Court held
that courts should defer to an agency's interpretation of ambiguous statutory
language where Congress has charged the agency with responsibility for
administering the statute and the agency's interpretation is reasonable. On
September 29, the Court granted certiorari in United States v. Haggar
Apparel Co., No. 97-2044, to decide whether the Treasury Department's
regulations under the Tariff Act are entitled to deference in determining the
proper tariff classification of imported goods and, if so, whether the specific
regulation at issue is a reasonable interpretation of the relevant tariff
Haggar Apparel Co. ("Haggar") sought a duty allowance for
fabric components manufactured in the United States and shipped to Mexico for
assembly into permanent press, wrinkle-free pants. The pants at issue were made
from a resin-impregnated fabric that, when baked in an oven, took on certain
permanent press and wrinkle-free characteristics. This baking process took place
in Mexico after the pants were assembled but before they were tagged, packaged
and shipped back to the United States.
Under the tariff laws, certain product components made in the
United States but assembled abroad for return to the United States are entitled
to a duty allowance so long as the components are not advanced in value or
improved in condition "except by being assembled and except by operations
incidental to the assembly process." A Treasury Department regulation
interpreting this language in the tariff schedules provides that "[a]ny
significant process, operation, or treatment other than assembly whose primary
purpose is the * * * physical or chemical improvement of a component * * * shall
not be regarded as incidental to the assembly." 19 C.F.R. § 10.16(c). As an
example of such non-incidental operations, the regulation cites the "[c]hemical
treatment of components or assembled articles to impart new characteristics,
such as * * * permapressing." Id. § 10.16(c)(4). The United States
Customs Service denied Haggar's request for the duty allowance on the ground
that the oven-baking process was not incidental to the assembly of the garments.
In a suit brought by Haggar after it paid the duties under
protest, the United States Court of International Trade ("CIT") ruled that the
pants in question were entitled to the duty allowance. 938 F. Supp. 868, 875
(1996). In reaching that decision, the CIT did not apply 19 C.F.R. § 10.16(c).
Instead, noting that factual determinations of the Customs Service are entitled
only to a presumption of correctness, the CIT employed the judicially created
test set forth in United States v. Mast Industries, Inc., 668 F.2d
501 (C.C.P.A. 1981), for determining whether an operation is incidental to
assembly. 938 F. Supp. at 869-874.
The CIT refused to rely on 19 C.F.R. § 10.16(c) for several
reasons. First, the court found that the regulation conflicted with the plain
language of the tariff schedules because, in the CIT's view, the regulation
denied the duty allowance whenever an operation imparted new characteristics to
an article, without regard for whether the operation was incidental. 938 F.
Supp. at 874. Second, the CIT noted that several opinions of the Federal Circuit
had "strongly qualified" the regulation and had "cast considerable doubt on
[its] validity." Id. at 874-875. Finally, in response to the United
States' contention that the court owed Chevron deference to the standard
established by 19 C.F.R. § 10.16(c), the CIT held that recent decisions of the
Federal Circuit "may have put [the United States'] assertion into question."
Id. at 875.
The Federal Circuit affirmed the CIT's decision in all
respects. 127 F.3d 1460, 1462 (1997). The court of appeals rejected the United
States' argument for Chevron deference as being "without merit" in light of two
prior Federal Circuit decisions, which the court cited but did not discuss.
Ibid. The court further noted, without explanation, that, although
procedural presumptions are important, "the [CIT] is nonetheless charged with
the [statutory] duty to reach the correct decision." Ibid.
This case should be of interest to all manufacturers who send
U.S.-made components abroad for assembly and shipment back to the United States.
This case may also be of broader interest to all businesses subject to the
tariff schedules because the Court may offer guidance regarding the scope of
deference owed to the Treasury Department's interpretations of those schedules.
6. Longshore and Harbor Workers'
Compensation Act — Situs Test — Seawalls and Bulkheads. Section 3(a) of the
Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 903(a),
provides compensation to maritime workers who are injured in the course of
employment. A maritime employee is eligible for benefits under the LHWCA,
however, only if the injury occurs "upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock, terminal, building way,
marine railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a vessel)." Ibid.
This requirement is known as the "situs" test. On September 29, the Supreme
Court granted certiorari in Brooker v. Durocher Dock and Dredge,
No. 98-18, to decide whether the situs test is met by a maritime worker who is
injured on a seawall.
Brooker worked for Durocher Dock while it was building a
seawall to replace another seawall on the Savannah River. In constructing the
seawall, Brooker and other employees unloaded pilings from two barges and put
the pilings into place to extend the seawall; the barges were not, however, tied
to the seawall. Brooker was injured when he fell landward off the new seawall
into the area between the new seawall and the old seawall. He sought benefits
under the LHWCA. An administrative law judge denied benefits, finding that the
seawall failed to meet the "situs" requirement. The Benefits Review Board
The Eleventh Circuit affirmed the Board. 133 F.3d 1390 (1998).
Although the seawall adjoins navigable water, the Eleventh Circuit found that
the opinion testimony of Brooker's supervisor that the seawall was not a pier,
along with pictures of the seawall, provided substantial evidence to support the
ALJ's "purely factual" determination that the seawall was not a pier within the
meaning of Section 3(a). Id. at 1393. Because it concluded that the
seawall was not a pier, the court of appeals did not decide whether a pier also
must be "customarily used" for vessel activity to satisfy the situs requirement;
the Supreme Court had deferred the latter question in Northeast Marine
Terminal Co. v. Caputo, 432 U.S. 249 (1977). The Eleventh Circuit
also held that, because the seawall was not designed to dock a vessel, it was
not an "other adjoining area" that was "customarily used" by the employer in
loading or unloading vessels. 133 F.3d at 1394.
The Eleventh Circuit's ruling conflicts with decisions of the
Second and Ninth Circuits holding that similar bulkheads were "piers" because
they were built on pilings and extended from land into navigable water. See
Fleischmann v. Director, OWCP, 137 F.3d 131, 139 (2d Cir. 1998);
Hurston v. Director, OWCP, 989 F.2d 1547, 1553 (9th Cir. 1993).
The decision in Brooker should be of particular interest to any
employer that owns, conducts business on, or undertakes construction projects on
property that includes seawalls or bulkheads that extend into navigable waters.
7. Americans with Disabilities Act —
Receipt of Social Security Disability Benefits — Judicial Estoppel. On
Today's order list, the Court granted review in Cleveland v. Policy
Management Systems Corp., No. 97-1008, to decide whether application for, or
receipt of, disability insurance benefits under the Social Security Act ("SSA"),
42 U.S.C. § 428, creates a rebuttable presumption that the applicant or claimant
is judicially estopped from asserting that she is a "qualified individual with a
disability" under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
§ 12112(a), and if not, what weight should be given in an ADA action to such
application for, or receipt of, disability benefits.
Under the SSA, an individual may receive benefits if she has a
"disability," which means she is unable to engage in "substantial gainful
activity" because of a "physical or mental impairment" that is expected to
result in death or that has lasted or can be expected to last for 12 months or
more. 42 U.S.C. §§ 423(a)(1)(D), 423(d)(1)(A). Under the ADA, a "qualified
individual with a disability" may sue an employer for discrimination on the
basis of the disability. 42 U.S.C. § 12112(a). A "qualified individual with a
disability" is defined as "an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions" of her job.
Id. § 12111(8).
Carolyn Cleveland began working for Policy Management Systems
Corporation ("PMSC") in 1993. After suffering a stroke in 1994, she took a leave
of absence from work and subsequently applied for, and received, social security
disability benefits on the basis of her certification that she was unable to
perform her job because of a disabling condition. Thereafter, Cleveland's
physician released her to return to work, but when she did so she encountered
difficulties and requested PMSC to make various accommodations to assist her.
PMSC denied her accommodations and terminated her employment. Cleveland then
renewed her application for disability benefits, again certifying that she was
unable to work.
Cleveland sued PMSC under the ADA, claiming that she was a
"qualified individual with a disability" who was terminated because of the
disability and that PMSC unlawfully failed to offer a reasonable accommodation.
In response, PMSC argued that Cleveland was precluded from establishing a prima
facie case under the ADA, because her application for and receipt of disability
benefits estopped her from claiming that she was able to perform the essential
functions of the job. The district court granted summary judgment for PMSC.
The Fifth Circuit affirmed. 120 F.3d 513 (1997). Although
recognizing that the ADA and SSA are not "necessarily * * * mutually exclusive"
because they involve different legal standards, the court of appeals held that
"the application for or receipt of social security disability benefits creates a
rebuttable presumption that the claimant or recipient of such benefits is
judicially estopped from asserting that he is a 'qualified individual with a
disability.'" Id. at 518 (emphasis added) (quoting 42 U.S.C. §§ 12111(8),
12112(a)). The Fifth Circuit explained that this rebuttable presumption could be
overcome only "under some limited and highly unusual set of circumstances,"
which the court stated were not present here. 120 F.3d at 517.
The Supreme Court likely granted review to resolve substantial
confusion in the courts of appeals over the impact of an employee's application
for or receipt of social security disability benefits on a claim under the ADA.
Employers who are or may be subject to ADA claims may wish to be heard on this
issue. The Court today invited the Solicitor General to express the views of the
United States in the following cases of interest to the business community:
- Sutton v. United Air Lines, Inc., No. 97-1943: The central
issue in this case is whether visual impairment that can be corrected with
glasses or contact lenses is a disability for purposes of the Americans with
Disabilities Act. Decision below: 130 F.3d 893 (10th Cir. 1997).
- Murphy v. United Parcel Service, Inc., No. 97-1992: The core
issue in this case is whether hypertension that can be successfully treated with
medication is a disability for purposes of the Americans with Disability Act.
Decision below: 1998 WL 105933 (10th Cir. Mar. 11, 1998) (unpublished).
- Campos v. Ticketmaster Corp., No. 98-127: The key issue is
whether, under the indirect purchaser rule of Illinois Brick Co. v.
Illinois, 431 U.S. 720 (1997), music ticket customers are indirect
purchasers and hence lack standing to bring antitrust claims against a supplier
of ticket distribution and ticket delivery services. Decision below: 140 F.3d
1166 (8th Cir. 1998).
Copyright 1998 Mayer, Brown & Platt. This Mayer, Brown
& Platt publication provides information and comments on legal issues and
developments of interest to our clients and friends. The foregoing is not a
comprehensive treatment of the subject matter covered and is not intended to
provide legal advice. Readers should seek specific legal advice before taking
any action with respect to the matters discussed herein.
This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and
comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters