(Adds Wednesday's Supreme Court rulings)
By Lawrence Hurley
WASHINGTON, June 25 With only days remaining in
its term, the U.S. Supreme Court is on track to at least partly
dispel the impression that it is pro-business.
In cases brought by business interests over the last nine
months, including an effort to curb shareholder class actions
and challenges to environmental regulations, the court has
either issued narrow rulings that fell short of what those
interests sought or ruled against them outright.
By contrast, the court last year issued a string of rulings
in favor of business, including several that curbed consumer
claims against companies.
Lawyers and law professors following the business cases
offer various explanations for the losses and narrower victories
this year. One theory is that the court under Chief Justice John
Roberts is reluctant to overturn longstanding precedents, even
when they happen to be anti-business.
Jonathan Adler, a law professor at Case Western Reserve
University School of Law in Cleveland, said the court has shown
"it is more a minimalist status-quo court than a 'pro-business'
By one measure the business community has fared reasonably
well this year. Its leading representative before the high
court, the U.S. Chamber of Commerce, has so far amassed a record
of 11 wins to 4 losses during the nine-month term due to end
next Monday. That's a winning percentage just slightly lower
than last year's 14-3 record. In the previous year the Chamber
went undefeated at 7-0.
The Chamber participates mainly by filing
friend-of-the-court briefs, but is also directly involved in
some cases, such as regulatory challenges. It does not generally
participate in business-against-business disputes, such as a
case on Wednesday in which the court ruled for TV broadcasters
in finding that online startup Aereo Inc had violated copyright
One remaining case yet to be decided involves the Chamber -
a challenge to President Barack Obama's appointments to the
National Labor Relations Board, which has the potential to be a
broad ruling. Even a win in that case, due to be decided as
early as Thursday, would mean a year of mixed results.
The Chamber's wins have mostly been on technical issues.
Even when the court has ruled in favor of business interests
this term, the justices have ruled narrowly and rejected
arguments that would have led to blockbuster decisions.
On Monday, the court did exactly that in cases on securities
class actions and environmental regulations.
The court stopped short of overturning a precedent that
favors plaintiffs in securities class actions and mostly upheld
the authority of the Environmental Protection Agency to regulate
greenhouse gases under a long-running air pollution program. The
environmental ruling was so mild that the EPA announced it was
pleased with the ruling even though it had technically lost.
Monday's ruling in the environmental case handed a partial
win to industry by exempting smaller pollution sources from the
"It wasn't a perfect win but we think it was a very positive
step in the right direction and a shot across the bows of the
EPA," Kate Comerford Todd, a lawyer in the Chamber's legal
office, said in an interview.
Saying that "overall it's a good term for the business
community," Todd cited a January win for Daimler AG
in which the court put limits on the ability of plaintiffs to
file human rights claims against multinational companies in U.S.
In the securities class action case, which was brought to
the court by Halliburton Co, the justices were unanimous
in reaching a middle ground that could benefit corporate
defendants, but the court didn't go as far as the business
Roberts himself wrote the majority opinion in which the
court declined to overturn a precedent that favors shareholders,
saying Halliburton had failed to show the "special
justification" that is required before the court throws out its
"We are disappointed," said Lily Fu Claffee, the Chamber's
chief legal officer.
The justices again failed to give the Chamber what it wanted
on Wednesday when the high court ruled in a class-action case
brought against Fifth Third Bancorp. The court threw
out an appeals court ruling in favor of the plaintiffs, giving a
technical win to the bank and Chamber. But the court rejected
the Chamber's argument, which would have had broader
pro-defendant implications if adopted.
The bulk of the Chamber's outright wins were on technical
legal issues, such as a decision in December in favor of Sprint
Corp over a dispute with the utilities regulator in Iowa.
By contrast, the Chamber lost some higher-stakes cases. Most
notably, the court in April upheld a separate environmental
regulation proposed by President Barack Obama's administration
that was strongly opposed by utilities. The court, on a 6-2
vote, ruled that the EPA had not exceeded its authority in
requiring some states to limit pollution that contributes to
unhealthy air in neighboring states.
The court also found against the Chamber in a 6-3 vote in
March that whistleblower protections apply not only to publicly
traded companies but also to subcontractors that do business
with them. The ruling extends the protections to investment
advisers, law firms, accounting firms and other such businesses.
Business also didn't fare particularly well in seven other
cases involving corporate interests in which the Chamber did not
participate and that did not involve a company versus company
dispute. Business interests lost four out of seven, including
one in which the court said on a 7-2 vote that victims of Allen
Stanford's Ponzi scheme could sue lawyers and insurance brokers
who worked for him.
Doug Kendall, president of the left-leaning Constitutional
Accountability Center, said the business community's failure
this year to reach its goals may stem from its having taken
"very aggressive positions," setting its sights too high to
garner a majority on the nine-member court.
"They didn't get what they asked for, but they are playing
offense," Kendall said.
(Reporting by Lawrence Hurley; Editing by Howard Goller, Amy
Stevens and John Pickering)