Walter Olson
In one sense, this hasn’t been a big term for business law at the Supreme Court. That may seem paradoxical since businesses are litigants in many of the term’s biggest cases. But in fact, most of the headline cases like that are better categorized as cases about such matters as separation of powers (CFPB, Jarkesy), the First Amendment (Vidal v. Elster, the pending NetChoice/Murthy cases), or administrative law generally (Loper Bright/Relentless, also pending). Where the court has tackled labor, employment, securities, and even arbitration matters this term, its decisions have mostly been low‐profile and unanimous or nearly so (Bissonnette, Muldrow, Starbucks, CoinBase, and others).
For the next term, however, the court has already granted certiorari in an array of business litigation cases that could make important law:
In E.M.D. Sales v. Carrera, reviewing the Fourth Circuit, the court has agreed to decide whether employers must satisfy an elevated “clear and convincing evidence” to avail themselves of statutory exceptions to the applicability of the Fair Labor Standards Act, or can instead prove it by the simple preponderance of the evidence otherwise familiar in litigation. High‐stakes battles over FLSA exemptions make it to court regularly.
The Court has agreed to hear two securities litigation cases from the Ninth Circuit. In NVIDIA Corp. v. E. Ohman J: or Fonder AB, which has attracted considerable amicus interest, critics say the Ninth Circuit’s ruling eroded Congress’s requirement in the Private Securities Litigation Reform Act (PSLRA) that claims be pleaded with particularity. Facebook, Inc. v. Amalgamated Bank concerns the scope of risk disclosure that may give rise to liability.
In Medical Marijuana, Inc. v. Horn, reviewing the Second Circuit, the court will decide whether civil RICO treble damages can extend to economic harm arising from personal injury, such as lost earnings, even though the text of the statute seems to exclude personal injury claims.
In other cases accepted for the October 2024 term, the Court will consider the range of conduct prohibited by the federal mail and wire fraud statutes, the scope of “claims” under the much‐litigated False Claims Act, the scope of the expropriation exception to the Foreign Sovereign Immunities Act, and the scope of disgorgement under the Lanham Act.
Still waiting in the wings pending a certiorari grant, and with high stakes indeed, is Sunoco LP v. City and County of Honolulu, from the Hawaii Supreme Court, on whether federal law precludes state‐law claims seeking redress for the effects of nationwide and international carbon emissions on climate. On June 10 the high court invited the US Department of Justice to submit a brief expressing the views of the United States in the case.
The court’s well‐known ideological dynamics are sometimes, though not always, muted in business law cases. But these merit watching as cases, many of which bear on the proper role of state power in a market economy, and that bring with them high stakes in the certainty and predictability of business planning.
