U.S. Supreme Court

Earlier this week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, affirming the Eight Circuit’s decision to not disturb a jury verdict against Tyson where the district court permitted the jury to draw an inference of class-wide liability based on representative or statistical evidence.

The Supreme Court, in a 6-2 landmark decision issued January 25, 2016, in Fed. Energy Regulatory Comm’n v. Elec. Power Supply Ass’n, 136 S.Ct. 760, 193 L.Ed.2d 661 (2016), upheld FERC Order No. 745 and ruled that the Federal Energy Regulatory Commission (FERC) has authority to establish demand response rules and rates in wholesale power markets. FERC’s rules call for payments to large energy users that reduce their electric usage during periods of high electricity demand.

The Court of Appeals for the District of Columbia Circuit had vacated Order No. 745, ruling among other things that FERC had overstepped its authority and directly interfered with the states’ exclusive right to regulate the retail electricity market.

The last year or so has not been a good one for the NLRB.  Time and time again the courts have shot down the Board in a number of matters, including the Board’s notice posting rule, its attempt to modify its own election rules for processing representation petitions, as well as D.R. Horton being denied enforcement and otherwise ignored by every court of appeals which has reviewed the issue.

In a split decision announced earlier today (Utility Air Regulatory Group v.  Environmental Protection Agency, No. 12-1146, slip op. (June 23, 2014)) the United States Supreme Court ruled the Environmental Protection Agency exceeded its authority in requiring sources of air pollution to comply with the Clean Air Act’s prevention of significant deterioration (PSD) and Title V major source permitting programs solely because of a source’s greenhouse gas emissions.  Further, the Court held that EPA is permitted to include greenhouse gas emissions in determining best available control technology (BACT) for sources that would be subject to PSD on the basis of emissions other than greenhouse gas emissions is a permissible interpretation of the Act.

The United States Supreme Court has agreed to hear Integrity Staffing Solutions, Inc. v. Buck, which revolves around whether activities are “integral and indispensable” (and so compensable) or “preliminary or postliminary” (and so not). Integrity Staffing provides warehouse workers on a contract basis to its clients. The employees in question filled orders for retail goods.

The U.S. Supreme Court extended the whistle-blower protections provided in the Sarbanes-Oxley Act to include employees of privately held companies that are contractors or subcontractors of a public company.  The high court’s ruling in Lawson v. FMR LLC, marks a significant expansion of the statute and opens the door for claims of a new class of workers from roughly 5,000 public companies to potentially 6 million private ones, including even the smallest “Mom and Pop” businesses.

As you’ve likely heard, the Environmental Protection Agency (EPA) has now officially taken the position that greenhouse gases like carbon dioxide are fair game for regulation and in fact are required to be regulated under the Clean Air Act. While this development may be cheered by environmental conservation groups and climate scientists, those who will actually have to implement the technology necessary to comply with EPA’s new regulations are less thrilled. Another pitched battle is about to take place before the Supreme Court on this issue, and large manufacturers, utilities, and other owners of large sources of greenhouse gases should take note.

Contractual forum selection clauses—i.e., provisions selecting specific courts for subsequent related litigation—abound in technology, manufacturing, and transportation commercial agreements. Oftentimes, manufacturers, suppliers, vendors, service-providers, and the like designate particular courts to lessen the costs of future litigation, as well as the likelihood of judicial error. 

The long running and heated debate over the extent to which software should be patentable has recently garnered significant media attention.  The debate is due, in part, to the abstract nature of software patents, the large awards handed down in infringement cases and the fact that software patents are regularly asserted by non-practicing entities (NPEs) against Fortune 500 companies and other large corporations.