Supreme Court’s First 2016 Conference Yields Positive Results for Free-Enterprise Advocates—and Reason to Hope for More

supreme courtThe U.S. Supreme Court held its first Conference of 2016 on Friday, January 8, where it considered cert petitions in several high-profile cases impacting free enterprise. The Court issued an orders list on January 11 from that Conference, which, while it did not include any cert grants in these cases, potentially offers positive results for free-market enthusiasts.

First, the Court issued a CVSG in State Farm v. U.S. ex. rel. Rigsby. For those not versed in Supreme Court-speak, CVSG=Calling for the Views of the Solicitor General. The U.S. government is not a party in Rigsby, but because the case involves a key federal law, the False Claims Act (FCA), the justices want to give the government a chance to weigh in with a yay or nay on cert before deciding. It takes the vote of four justices—the same number it takes to grant cert—for the Court to seek the Solicitor General’s views. A CVSG is thus a very good sign that the Court has an elevated interest in a case.

WLF filed an amicus brief in support of the Petitioner in Rigsby. The case arises from a long-running FCA qui tam action. The U.S. Court of Appeals for the Fifth Circuit in its decision below mistakenly allowed plaintiffs to violate the law’s mandatory seal provision and found that the “collective knowledge” of a corporate defendant’s employees satisfied the FCA’s scienter standard.

The Court relisted two other important free-enterprise cases in which WLF supported review. The Court will reconsider the petitions in Microsoft v. Baker and Amgen v. Harris in its January 15 Conference. According to Vinson & Elkins partner John Elwood, SCOTUSblog’s relist guru, the Court “relists cases that it has tentatively decided to grant certiorari to review, and uses the extra time to perform a check for vehicle problems that might keep the Court from resolving the question presented.” It may also relist to give one justice time to author a dissent from the denial of cert or to write an opinion summarily reversing the lower court. Elwood also notes that “since February 2014, almost every case that the Court has granted has been relisted at least once.”

Baker and Harris are both on appeal to the Supreme Court from the Ninth Circuit. In Baker (WLF’s brief here), the Ninth Circuit granted plaintiffs who have voluntarily dismissed their claims with prejudice the right to immediately appeal a trial court’s earlier decision not to certify the lawsuit as a class action. A November 9 WLF Legal Pulse post discussed the decision. Harris involves fiduciary duties under the Employee Retirement Income Security Act (ERISA) (WLF’s brief here).

Two cert denials from the January 8 Conference already can be considered “wins” for free enterprise. In the first, Caplinger v. Medtronic, the justices let stand a Tenth Circuit decision that rejected a plaintiff’s aggressive effort to circumvent the Medical Device Act’s express preemption clause. Caplinger argued that federal law did not regulate Medtronic’s supposed promotion of a device for off-label use. As discussed in an October 2013 WLF Legal Opinion Letter, nearly every court to consider this novel legal theory has rejected it.

The second denial from the January 8 Conference in United States of America ex rel. Harry Barko v. Halliburton Company, et al preserves an important victory for attorney-client privilege protections. The D.C. Circuit held that the privilege protects documents created in an internal investigation from disclosure. The plaintiff had argued that because the investigations were done pursuant to legal requirements and corporate policy, and not solely for the purpose of obtaining legal advice, the reports were not privileged. A June 30, 2014 WLF Legal Pulse guest commentary by Snell & Wilmer LLP’s Greg Brower and Brett Johnson provides more detail on the D.C. Circuit’s decision.

As with any Supreme Court action, it is important not to “count chickens” too soon. But the CVGS in Rigsby and the relists in Baker and Harris certainly inspire cautious hope.

Also published by Forbes.com on WLF’s contributor site

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