Supposedly, one of the chief functions of the Supreme Court is to revolve disagreements among the lower courts about what the law means. Those disagreements include things like “circuit splits” — where federal appeals courts in different parts of the country disagree about how to interpret a a federal law or constitutional provisions — and disagreements between a federal appeals court and a state supreme court about whether a state law is constitutional.
But often the Supreme Court fails to do resolve disagreements among the lower courts when the disagreement is over business litigation, as opposed to culture war issues. Federal appeals courts can disagree with each other about the meaning of a federal law for a decade or more, in important cases affecting who gets billions of dollars, with the Supreme Court turning away petition after petition by businesses or citizens asking the Supreme Court to resolve the “circuit split.” The Supreme Court doesn’t have to hear most cases if it doesn’t want to, even if the case was wrongly decided by a lower court. It turns away more than 99% of all petitions asking it to hear a case, usually with no explanation at all.
But this fall, the Supreme Court will finally hear several important business-law cases that will affect whether businesses have to pay billions of dollars. As the Cato Institute explains, this year, the Supreme Court
has already granted certiorari in an array of business litigation cases that could make important law:
In E.M.D. Sales v. Carrera, reviewing the Fourth Circuit, the court has agreed to decide whether employers must satisfy an elevated “clear and convincing evidence” to avail themselves of statutory exceptions to the applicability of the Fair Labor Standards Act, or can instead prove it by the simple preponderance of the evidence otherwise familiar in litigation. High‐stakes battles over FLSA exemptions make it to court regularly.
The Court has agreed to hear two securities litigation cases from the Ninth Circuit. In NVIDIA Corp. v. E. Ohman J: or Fonder AB, which has attracted considerable amicus interest, critics say the Ninth Circuit’s ruling eroded Congress’s requirement in the Private Securities Litigation Reform Act (PSLRA) that claims be pleaded with particularity. Facebook, Inc. v. Amalgamated Bank concerns the scope of risk disclosure that may give rise to liability.
In Medical Marijuana, Inc. v. Horn, reviewing the Second Circuit, the court will decide whether civil RICO treble damages can extend to economic harm arising from personal injury, such as lost earnings, even though the text of the statute seems to exclude personal injury claims.
In other cases accepted for the October 2024 term, the Court will consider the range of conduct prohibited by the federal mail and wire fraud statutes, the scope of “claims” under the much‐litigated False Claims Act, the scope of the expropriation exception to the Foreign Sovereign Immunities Act, and the scope of disgorgement under the Lanham Act.
Still waiting in the wings pending a certiorari grant, and with high stakes indeed, is Sunoco LP v. City and County of Honolulu, from the Hawaii Supreme Court, on whether federal law precludes state‐law claims seeking redress for the effects of nationwide and international carbon emissions on climate. On June 10 the high court invited the US Department of Justice to submit a brief expressing the views of the United States in the case.
The Hawaii state courts want to use state tort law to regulate America’s energy sector and the emissions that are an inevitable byproduct of energy use, even though critics say this is preempted by federal environmental law.
Hawaii itself has agreed with people suing it to completely decarbonize its transportation sector over the next 21 years, effectively banning gas-powered vehicles. But electric vehicles emit more toxic particles, result in much more wear and tear on roads and bridges than gas-powetred vehicles, and result in more pedestrian deaths and collision deaths. And powering vehicles through the electric grid rather than gas stations will place enormous strain on the electric grid.
