Big year leads up to a bigger one at Supreme Court

By Kimberly Atkins The Daily Record Newswire BOSTON -- At the U.S. Supreme Court, 2011 was a remarkable year -- not just for the things the justices did, but for the cases they agreed to take up in the near future. After handing down major rulings on class action qualification, mandatory arbitration and preemption of drug and vaccine-based tort suits, the justices agreed to decide the fate of two of the most high-profile and politically charged laws before the Court in decades: the federal health care law and Arizona's immigration statute. Class action, preemption rulings dominate On the issue of class actions, the Court handed down two important rulings this year that lawyers feared could bring an end to class actions. In AT&T Mobility v. Concepcion in April, a divided Court ruled that state laws requiring that classwide consumer arbitration proceedings be available are preempted by the Federal Arbitration Act. In a decision written by Justice Antonin Scalia, the majority held that the purpose of the FAA was to promote arbitration as an efficient and expedient dispute resolution tool, and therefore "[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." In another divided ruling in June, the Court held in Wal-Mart Stores v. Dukes that a class of roughly 1.5 million past and present female Wal-Mart employees did not satisfy the class certification requirements to move forward with an unequal pay claim, thwarting what would have been the largest class action in American history. Establishing a new "glue standard," Scalia again wrote for the majority that "[w]ithout some glue holding the alleged reasons for all [the disparate pay] decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Initial fears that the two rulings could bring an end to class actions entirely were premature, although lawyers believe that the rulings represent a game-change in class-based litigation. The class action "is not dead, but it certainly was injured by the Court this year," said Suzette Malveaux, professor at the Columbus Law School at Catholic University and author of a casebook on class actions. The Court also continued its recent trend of handing down a mixed bag in the area of federal preemption. The plaintiffs were on the losing side in cases such as Concepcion, Bruesewitz v. Wyeth, which held that the National Childhood Vaccine Injury Act of 1986 preempts state law vaccine design defect claims, and in PLIVA v. Mensing, where the justices held that drug regulations governing generic drugs directly conflict with, and thus preempt, state-law failure-to-warn claims. But plaintiffs prevailed in Williamson v. Mazda, where the Court held that federal motor carrier safety regulations related to seatbelts do not preempt a state tort lawsuit in which a passenger sitting in a seat equipped only with a lap belt, instead of a shoulder-and-lap belt, was killed. Big employment rulings The Court handed down a number of important rulings on the employment law front, most notably continuing its recent trend of extending the rights of employees to bring retaliation claims. In Thompson v. North American Stainless, the Court held that an employee could bring a Title VII claim that he was retaliated against because of a complaint filed by his fiancée. "Title VII's anti-retaliation provision is worded broadly," wrote Scalia. In Kasten v. Saint-Gobain Performance Plastics Corp., the justices ruled that oral complaints about workplace conditions made to a company supervisor are enough to trigger the anti-retaliation provision of the Fair Labor Standards Act. The court also sided with the employee in the "cat's paw" theory case Staub v. Proctor Hospital, holding an employer liable for the anti-military bias of a supervisor even though another supervisor made the ultimate decision to fire the plaintiff. But employees didn't win every time. The Court held in NASA v. Nelson that government employers do not violate contract employees' privacy rights by gathering personal information, including data on previous drug use, drug treatment, and mental and financial stability, as long as the employer acts reasonably. And in another employment-related case, an unusual alliance of business and civil rights groups was defeated as the Court ruled that an Arizona law imposing sanctions on employers who hire undocumented workers and mandating the use of the federal E-Verify database is not preempted by federal immigration law in Chamber of Commerce v. Whiting. Other notable rulings by the Court in 2011 included Snyder v. Phelps, where the Court held that the First Amendment bars an award of damages for emotional distress allegedly caused by protesters at a military funeral; Kentucky v. King, which held that where police create an exigency by knocking on a door, the exigent circumstances rule still allows a warrantless search so long as the police conduct is reasonable; and J.D.B. v. North Carolina, which held that the age of a juvenile is a factor that must be considered in determining whether the child is "in custody" for Miranda purposes. Bigger cases ahead Perhaps the biggest moves by the Supreme Court this year were granting cert in two of the biggest cases the justices will decide in 2012: the challenges to the federal health care law and to Arizona's controversial immigration measure that allows police to question individuals about their residency status. The Court made the historic move of scheduling five and a half hours of oral arguments in March 2012 in Florida v. HHS and its related cases to consider the constitutionality of the Patient Protection and Affordable Care Act as well as several related issues, including the severability of the individual mandate provision from the rest of law, whether the Anti-Injunction Act permits the Court to consider the constitutional question before the law goes into effect in 2014, and the law's Medicaid expansion. And in one of its final orders of 2011, the Court agreed to take up Arizona's controversial immigration law SB 1070. It will decide in Arizona v. U.S. whether federal immigration law preempts the state statute, which requires police officers to verify the immigration status of detained individuals they suspect are in the country illegally. Decisions in those cases are expected in 2012. Published: Fri, Dec 30, 2011

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