- The Washington Times - Sunday, October 1, 2006


The Supreme Court is about to plunge into an agenda laden with issues affecting the business sector. Tobacco companies, the biotech industry and operators of coal-fired power plants have a stake in cases the court will hear in the next month.

Of the 38 cases the court has agreed to consider so far in the term that begins today, 17 are business-related, “an unusually high fraction of the court’s docket,” said Washington lawyer Roy Englert.

Chief Justice John G. Roberts Jr. was managing partner of a major law firm that had a sizable portfolio of business clients and is “comfortable with the issues presented in business cases in ways that Chief Justice William Rehnquist” was not, Pepperdine University law professor Douglas Kmiec said.

Philip Morris USA is fighting an $80 million punitive damage award to the widow of a lung cancer victim who smoked two packs of Marlboros a day.

Duke Energy Corp. is trying to protect its lower-court victory enabling aging, refitted generating units to operate at full throttle without costly pollution-control equipment. In this case, the environmental movement is determined to finish a fight that the Clinton administration started when it sued the company.

On these and other cases, companies looking for help from the conservative wing of the court may be disappointed.

For example, liberal Justice Ruth Bader Ginsburg and conservative Justice Antonin Scalia are allies when it comes to punitive damages. Justice Scalia said the issue is “the province of state governments,” ominous words for Philip Morris’ position.

If the 2005-06 term is any indication, Chief Justice Roberts may be able to achieve consensus on some business cases. He wrote the 9-0 opinion rebuffing the efforts of a group of taxpayers to challenge nearly $300 million in tax breaks for DaimlerChrysler AG.

The newest justice, Samuel A. Alito Jr., comes to the court with a pro-business reputation. But it is uncertain where Justice Alito and Chief Justice Roberts will come down on issues such as punitive damage awards.

As an appeals court judge, Justice Alito sided with companies in employment and discrimination cases.

The court this term will consider the case of Lily Ledbetter, found by a jury to have been paid substantially less than the men in her department at Goodyear Tire & Rubber Co. A favorable ruling for business would sharply restrict the time that employees have to sue for illegal discrimination in pay.

In the area of antitrust law, there is a marked difference in emphasis between the court under Chief Justice Roberts and his predecessor, the late Chief Justice Rehnquist, said Mr. Englert, who has argued 15 cases before the Supreme Court.

From 1994 to 2005, the court heard five antitrust cases. There were three in Chief Justice Roberts’ first term and two so far in this term.

In one case, the Bush administration wants the justices to reverse a $79 million verdict against lumber industry giant Weyerhaeuser Co. in a lawsuit brought by a smaller company. In a second, the largest phone companies are accused of dividing up the market to protect regional monopolies.

In the realm of consumer rights, two insurance companies are fighting charges that they should have notified people about adverse information in their credit reports. The consumers say Geico and Safeco denied them insurance or increased premiums based on data in the reports.

Some of the biggest companies are watching a patent battle between two biotech businesses, Genentech and Med-Immune, over a childhood respiratory drug. Corporations that are major patent holders are backing Genentech Inc. of California against the smaller MedImmune of Gaithersburg, Md. Genentech said creating a unilateral right for a licensee to challenge a licensed patent will destabilize thousands of existing patent settlements and license agreements.

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