The next two weeks brings the U.S. Supreme Court into the home stretch of its docket, with only eight more cases left on its arguments calendar. Three of those cases should be of particuar interest to the free enterprise community, and each were addressed back in February at Washington Legal Foundation’s annual mid-term Supreme Court briefing, moderated by The Honorable Dick Thornburgh (video archive here). Metropolitan Corporate Counsel magazine recently posted a summary of our speakers’ remarks.
City of Ontario v. Quon, to be argued on Monday, April 19, asks the very timely question of what privacy interests an employee has in personal information contained in a communications device provided by his employer. Patricia A. Millett of Akin Gump Strauss Hauer & Feld LLP, who addressed Quon at WLF’s briefing, noted:
The Solicitor General has weighed in and strongly agreed with what is essentially a least restrictive means approach to the Fourth Amendment, and I’m quite confident the Supreme Court will disagree with that position, based on prior decisions. But now the problem is, if there is a privacy interest, how is that factored into the Fourth Amendment ability of employers to do searches? Remember this wasn’t a law enforcement search. What is the standard by which employers can do searches? How intrusive can they be? How are those interests balanced under the Fourth Amendment?
Patti also assessed another key business case, Rent-A-Center v. Jackson, argument set for Monday, April 26. Rent-A-Center is yet another arbitration case, a topic the Court has touched upon quite a bit lately, including the yet-to-be-decided Stolt-Nielsen S.A. v. AnimalFeeds International Corp. argued in early January. The business and its customer contractually agreed to submit questions about the validity of an arbitration agreement to an arbitrator, and the Court will determine whether to hold the customer to its agreement, or whether a judge must be the one to determine such an issue.
The most interesting and we think most critical of the three free enterprise cases is Monsanto Company v. Geertson Seed Farms, to be argued on Tuesday, April 27. The underlying facts involve genetically enhanced alfalfa seeds and the government’s regulation of them. The legal issue at stake is equally compelling and applicable well outside of the confines of the case’s facts: the standards for a court’s entry of injunctive relief in environmental cases. Former Solicitor General of the United States, Gregory G. Garre , whose firm Latham & Watkins LLP is representing Monsanto in the Court, provided an extensive overview of the case, and explained its larger importance:
First, it is part of a series of cases in which we’ve seen this Supreme Court express an interest in injunctions, having repeatedly referred to injunctions as an “extraordinary and drastic form of relief.” The second reason for the case’s importance is that it concerns the scope of NEPA, which is a procedural statute, any violation of which may be greeted by an injunction. But the injunctive process itself begins to transform the case into one involving a more substantive statute, giving NEPA a broader effect.
Washington Legal Foundation filed an amicus brief in the case supporting Monsanto’s arguments.
The program’s third speaker, Noel J. Francisco of Jones Day, addressed three pending cases involving the “Honest Services Fraud” statute, as well as a case we are all anxiously awaiting the opinion for, Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board.
Photo: U.S. Supreme Court website