BUSINESS LITIGATION TRENDS THE ROBERTS COURT: DOES BUSINESS HAVE FRIENDS IN HIGH PLACES?

1. BUSINESS LITIGATION TRENDS THE ROBERTS COURT: DOES BUSINESS HAVE FRIENDS IN HIGH PLACES? Kelly Sandill Partner, ANDREWS KURTH LLP Houston

2. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Historical Supreme Court Trends • Justices from both political parties → more favorable to business • Businesses win in lower appeals court → less likely to win in USSC • Federal government opposition → less likely to win in USSC • Solicitor General support → more likely to win in USSC

3. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • The Roberts Court • Friendlier to business than Rehnquist or Burger Courts • Taking and reversing more cases where business lost below • Five of ten most pro-business Justices since 1946 • Roberts and Alito are most favorable to business since 1946 • Scalia, Thomas, and Kennedy have become more favorable to business following appointment of Roberts and Alito

4. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Key Business Wins: 2012-2013 • American Express v. Italian Colors Restaurant • Validates contractual waiver of class arbitration in consumer industry, even though the cost of arbitrating individually may exceed recovery • Comcast Corp. v. Behrend • Courts must consider the proposed method of proving damages under the theory to be advanced at trial as part of the inquiry on predominance of common issues for class certification

5. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Key Business Wins: 2012-2013 • Gabelli, et al. v. SEC • 5-year general statute of limitations for SEC to seek civil penalties under the Investment Advisor Act starts when fraud occurs, not when discovered • Kiobelv. Royal Dutch Petroleum • Claims under the Alien Tort Statute must “touch and concern” activities occurring in the U.S., not violations occurring wholly outside of the U.S. Mere corporate presence of defendant in the U.S. is not enough

6. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Key Business Wins: 2012-2013 • Mutual Pharmaceutical Co. v. Bartlett • Companies that make generic drugs, and therefore have to use the same label as the original “branded” drug approved by the federal Food and Drug Administration, cannot be sued on design-defect claims associated with those labels • Vance v. Ball State • An employer is strictly and vicariously responsible under Title VII of the Civil Rights Act for the acts of “supervisors” who are “empowered” to take “tangible employment actions” against lower-level employees, and not managers who merely oversee or direct employees’ everyday activities

7. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Key Business Losses: 2012-2013 • Amgen v. Connecticut Retirement Plans and Trust Funds • Materiality is not a prerequisite to certification of a class-action alleging securities fraud based on violations of SEC Rule 10(b) • City of Arlington v. FCC • Where a statute is ambiguous or silent on the issue, federal agencies are entitled to deference on their decisions as to the scope of their own regulatory jurisdiction/authority • Oxford Health Plans v. Sutter • Federal Arbitration Act exempts from judicial review an arbitrator’s determination that a contract calls for class-wide arbitration, so long as the arbitrator was “arguably construing the contract”

8. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Cases to Watch: 2013-2014 • American Chemistry Council v. EPA • Did the EPA permissibly determine that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases? • Chadbourne & Parke LLP v. Troice • Does the Securities Litigation Uniform Standards Act (SLUSA) preclude state-law class actions alleging a scheme of fraud that involves misrepresentations about transactions in SLUSA-covered securities?

9. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? Cases to Watch: 2013-2014 • Daimler AG v. Bauman • Does it violate due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state? • Lawson v. FMR LLC • Is an employee of a privately held contractor or subcontractor of a public company protected from retaliation by the Sarbanes-Oxley Act of 2002?

10. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? Cases to Watch: 2013-2014 • U.S. v. Quality Stores, Inc. • Are severance payments to executives, managers, and other employees who are involuntarily terminated properly classified as employee “wages” on which FICA taxes must be withheld? • Sandifer v. United States Steel Corporation • Does time spent changing in and out of safety gear qualify as “changing clothes,” which permissibly can be excluded from the number of hours worked and for which payment is required under the Fair Labor Standards Act?

11. Business Litigation Trends The Roberts Court: Does Business Have Friends in High Places? • Tips for Success • Careful selection of appellate issues • Awareness of increased success when experienced a loss in the circuit court • Cogent presentation of arguments by experienced counsel • Amicus curiae briefs (Solicitor General, U.S. Chamber of Commerce) • Effective communications with regulators