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Following Undefeated Term, U.S. Chamber Takes Another Swing at Kiobel, Class Actions

September 28, 2012

The Supreme Court’s business docket this Term begins with some unfinished business from last Term, with Kiobel v. Royal Dutch Petroleum taking center stage when the Court opens its new session on Monday.  Fresh off an undefeated 7-0 Term, the U.S. Chamber of Commerce is looking at Kiobel to notch its first win of the new Term.  Beyond Kiobel, the Chamber is involved in a number of cases seeking to limit the ability of plaintiffs to pursue relief through class and collective actions.

When the Court first considered Kiobel last Term, the issue was whether corporations may be held liable under a federal law known as the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. federal courts for egregious violations of international human rights laws.  The Chamber argued then that corporations should not be treated like people for purposes of liability under the ATS.  But the Court was not content simply to answer the question before it,  and instead ordered Kiobel to be reargued this Term to address the much broader question of whether the ATS should be understood as having any application “within the territory of a sovereign other than the United States.”  Now, the Chamber is asking the Court to establish a categorical rule that the ATS lacks any extra-territorial application whatsoever. 

Others have written extensively about the merits of the controversial legal issues at stake in Kiobel, so I won’t retrace that ground here. But it bears noting that Kiobel, like Citizens United before it, represents a trend of the Roberts Court to broaden the issues in cases beyond those presented by the litigants.  Of course, Kiobelis also different from Citizens United, since the Chamber argues that corporations should NOT be treated like people when it comes to liability, even as the Court has held they have the same political speech rights as flesh and blood humans.

The fact that Kiobel has attracted such controversy might actually bode well for the Chamber’s chances.  After all, the Chamber has done best in close cases decided by five-Justice majorities, winning an astounding 76% of the time (19 of 25) in such cases before the Roberts Court, as we reported last June.   (The Chamber has won 68% of its cases before the Roberts Court overall.)Siding with the Chamber most frequently in these cases are the Court’s two newest conservative members, with Chief Justice Roberts taking the Chamber’s side 84% of the time, and Justice Alito following the Chamber’s position in 92% of close cases.

Looking past Kiobel, the Chamber has seven other cases already on the horizon this Term.  Coming on the heels of the Court’s 2011 decision in Walmart v. Dukes, in which the Court ruled to de-certify a class of women suing Walmart for gender discrimination, the Chamber has filed in three cases this Term relating to class actions.  In both Amgen Inc. v. Connecticut Retirement Plans and Trust Funds and Comcast Corp. v. Behrend, the Chamber is arguing that the Court should make it more difficult to certify a plaintiff class.  And in Standard Fire Insurance Co. v. Knowles, the Chamber is arguing that the Class Action Fairness Act should apply even when the parties stipulate that recovery would fall below CAFA’s jurisdictional threshold.  In a fourth case, Genesis HealthCare Corp. v. Symczyk, the Chamber argues that a defendant should be able to moot a collective action case brought under the Fair Labor Standards Act by offering to satisfy the claims of just the named plaintiff.

The Chamber has also filed in Decker v. Northwest Environmental Defense Center, an environmental case, and U.S. Airways v. McCutchen, an employee benefits case, and it has announced it will file in Vance v. Ball State University, an employment discrimination case involving racial harassment.  At the cert.-stage, the Chamber has filed amicus briefs regarding nine still pending petitions.

While civil rights cases involving affirmative action, the Voting Rights Act, and marriage equality will dominate the headlines this coming Term, but quietly it is again setting up to be a big term for big business.  The Chamber is riding a term-long winning streak going into Kiobel; only time will tell just how long that streak will last.