Summary provided by Colin Marks
Workshop on Business Law Summary
Supreme Court Update: Business, Administrative, Intellectual Property, Securities, Tax, and Workplace Issues
Professors Charlton Copeland, University of Miami School of Law, Victoria Haneman, Concordia University School of Law, Marcia . McCormick, Saint Louis University School of Law, and JorgeRoig, Charleston School of Law, presented summaries of the most significant cases impacting business law that were decided by the Supreme Court this past year. Professor Copeland focused on general litigation cases that touched on civil procedure, federal courts and administrative law matters. The two most significant cases he discussed were Bank of America Corp. v City of Miami Fl. and National Labor Relations Board v. SW General, Inc. In Bank of America, Miami brought suit against BoA and other residential mortgage lenders arguing that their lending practices left certain vulnerable communities worse off thus decreasing tax revenues. In a 5-3 decision, the court agreed that Miami was an aggrieved person under the Fair Housing Act. The court left open issues such as causation, but the court recognized the right to sue. Notably, Roberts joined the liberal members the Court to make-up the five. In SW General, the Court looked at constraints on the presidential power to appoint individuals who are acting officers – in this case the acting general counsel for the NLRB. In a 6-2 decision, the Court concluded that an acting officer that had been nominated could not continue to act as an acting officer. Professor Copeland opined that this decision is important in that it potentially increases the effectiveness of Congressional opposition to presidential appointees in that the President is limited in his ability to appoint seemingly qualified people who are already performing the job. Interestingly Breyer and Kagan who both have extensive administrative law experience joined the Roberts majority.
Professor Haneman discussed developments in the areas of tax and securities law. Though she noted that not much happened in tax law, the denial of cert in one case was notable. Direct Marketing Association v. Brohl involved Colorado’s “Amazon Tax” which placed additional burdens on online retailers who don’t collect sales taxes. The denial of cert leaves these types of statutes in place despite precedential cases such as Quill v. North Dakota by and trough Heitkamp, 504 U.S. 298 (1992). The most notable securities case was Salman v. U.S. This insider trading case involved the liability of a remote tippee, Salman. The Court had to look at the presumptions involved and ultimately held Salman had enough knowledge meet the “improper purpose” element. Haneman opined that the scope of the case was limited to “improper purpose” just with regards to friends and family, but that improper purpose could be almost anything.
Professor McCormick noted that though nothing really happened that affected labor and employment law directly, there were some interesting procedural and administrative case. But, Professor McCormick opined that the upcoming term is going to be really exciting. The biggest case coming down this coming term is Lewis v. Epic Sys. In which the Court will have to resolve whether employees have substantive rights such that they can’t be forced to sign on to class action waivers as a condition of employment. The 7th Cir. held the NLRA does provide a substantive right to litigate claims. Another case that will be before the Court soon will involve the scope of the definition of “sex” and whether that includes sexual identity and sexual orientation under Title VII. The EEOC held a couple of years ago that sexual orientation discrimination is “sex” discrimination. The 7th Circuit has agreed with the EEOC setting up a circuit split. As far as cases actually decided this last term, Professor McCormick highlighted McLane Co. v. EEOC which involved the EEOC’s subpoena power. The EEOC had asked for names and addresses of people who had taken an employment test and the district court quashed the EEOC’s request. On appeal, the appeals court agreed that the EEOC’s request could be reviewed under a de novo standard, but the Supreme Court held that correct standard was abuse of discretion in reviewing an EEOC subpoena request.
Finally, Professor Roig covered a case in each of the three major IP areas: Copyright, Patent and Trademark. Matal v. Tam, 582 U.S. ____ (2017) was perhaps the most important case. It involved the denial of trademark registration of a band named the Slants as being disparaging. Roig, opined that the case is actually quite straight-forward from a 1st Amendment stand-point. All members seemed to support the main issue of viewpoint discrimination but that the opinion itself was fractured due to a number of collateral issues including whether granting of a trademark is commercial speech. The court left open the commercial speech question by stating that even if it were commercial speech, it would not pass muster. Roig opined that the court’s reasoning should also apply to the Lanham Act’s prohibition on “scandalous” marks.