Reason for Optimism as the Supreme Court Winds-Down its Term?

Date: June 28, 2017

The 2016-17 Supreme Court term may not have featured the same sort of block-buster cases that we’ve seen in previous years. Yet, those cases that NFIB Legal Center thought important for the small business community have turned out mostly for the best. For example, this spring the Supreme Court handed us a win in McClane Co. v. EEOC—with a decision making it somewhat easier for employers to contest improper EEOC subpoenas.

BNFS Railroad Co. v. Tyrrell marked another case in the win column. Here the Supreme Court sided with NFIB in ruling that a plaintiff cannot sue a business in a state unless the alleged injury actually occurred in that state—or unless either the defendant or the plaintiff resides in that state. Importantly, this decision should prevent plaintiffs’ attorneys from “venue shopping,” whereby they try to haul businesses-defendants into state courts where they have no real connection, in the hope of getting a more favorable ruling and or a large jury verdict.

Likewise, NFIB Legal Center pronounced victory in both NLRB v. SW General and Microsoft v. Baker in the closing months of the 2016-17 term. In SW General, we joined in urging the U.S. Supreme Court take a limited view of the President’s statutory authority to fill temporary vacancies that otherwise require Senate confirmation at NLRB, with an amicus brief stressing that the White House had pronounced a weak interpretation of the controlling statutory framework that was not entitled to any form of deference. And in Baker, we joined with other concerned industry groups in challenging what we thought to be an unfair (and bizarre) practice whereby aggressive plaintiff’s attorneys sought to immediately appeal a decision denying class action certification by “voluntarily dismissing” their own action. In both cases, the Supreme Court sided with NFIB Legal Center’s construction.

Also, we were encouraged by the Supreme Court’s decision in Town of Chester v. Laroe Estates Inc., for which we joined in filing an amicus brief with the National Association of Homebuilders. As explained previously in this post, our goal was to prompt the Supreme Court to make clear that industry groups need not prove standing when intervening in lawsuits to defend against activists calling for more extreme regulation. The good news is that the Supreme Court affirmed that interveners need not prove standing unless they are raising new claims beyond those already on the table in a given lawsuit. So while the decision was not as definitive as we might have liked, it may make it somewhat easier for industry groups to intervene in opposition to lawsuits calling for more draconian regulation.”

But unfortunately this otherwise spotless term was blemished by the Supreme Court’s late decision in Murr v. Wisconsin. As we explained in a previous post, this was an important and largely underappreciated property rights case. Disappointingly, the Court’s 5-3 decision marks a significant set-back for the property rights movement. This is because the Court effectively made it easier for the government to avoid takings liability when abrogating property rights—at least on adjoining lots of land. So for example, if a small business owns two adjacent plots of land, the authorities may—under this decision—insist that the owner may only build on one of the two lots. Professor Ilya Somin offers further commentary at Volokh Conspiracy.

Still, on the whole, there is reason for the small business community to be optimistic about the 2017-18 term. In fact, we’re already gearing-up for another big year. We have our eyes on a handful of truly important small business issues, which we are urging the Supreme Court to take-up. And by the end of summer we will almost certainly have a better idea as to what sort of cases the Supreme Court will hear. But the odds seem high that the Court will take at least a few blockbuster cases in the coming year.

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