Here, Here (or, The Supreme Court Review)

This won't surprise anyone, but I am very pro-business. My parents had their own small accounting practice, so as I was growing up I became familiar with the struggles of the small business owner. I also love seeing Minnesota businesses make good. I remember falling in love with Target before people in other states knew what Target was. I felt a swell of pride when Medtronic opened its colassal campus in Fridley (as though I had anything to do with it!). Ameriprise Financial has become one of the largest financial planning companies in the country, with about $8 billion in revenues last year. The work I have done for Seagate these last few months has given me a great deal of appreciation for high-tech companies. And then, of course, the darling of Minnesota business: 3M. These companies are a big reason why people are discovering that the Twin Cities area is great for jobs, and they really have enhanced our quality of life.

So with all this in mind, it will also come as no surprise that I am very happy with the Roberts Court this term. The Court heard four anti-trust cases this term, and in all four cases the anti-trust Plaintiff lost. (Summaries of these cases and discussion will come later.) The securities fraud suit, the Tellabs decision about which I wrote a previous entry, also ended badly for Plaintiffs. Ledbetter v. Good Year was an employment discrimination suit that limited the statute of limitations on those suits. Philip Morris v. Williams limited punitive damages. Leegin Creative Leather Products v. PSKS Inc. got rid of the rule that minimum retail price requirements set by manufacturers were a per se violation of the Sherman Antitrust Act. (The full text of the opinions can be found at http://www.supremecourtus.gov/opinions/06slipopinion.html.)

The 2008 term will have some interesting cases. Stoneridge Investments v. Scientific-Atlanta (case no. 06-43) will be the one to watch. Stoneridge is about "scheme liability," and presents the question of whether third parties (e.g., lawyers, accountants, bankers) can be liable for playing a role in a company's alleged fraud, even when they did not perpetrate the fraud themselves. Congress has had the opportunity to legislate scheme liability twice and has failed to do so. The Plaintiffs bar is hoping the Court will do what Congress has not. Because a conservative court is highly unlikely to step in when Congress has refused to create a law, it looks like this could be a victory for the defendants.

For Minnesota businesses, Riegel v. Medtronic (case no. 06-179) will be a big decision. The case will ask whether FDA approval is enough to protect manufacturers from liability. The FDA has an extremely rigorous pre-marketing approval process, and many federal courts have decided that they can't do any better. Furthermore, once a medical device is on the market, the company cannot change its design without FDA approval. The paradox is, the FDA could rule that a product is safe, a jury could find that a product is unsafe, and this leaves a manufacturer unable to satisfy both the FDA and jury decisions.

The next term begins in October. I'll keep you updated.