Under the U.S. Supreme Court: Walmart, Microsoft rulings waiting to drop

By MICHAEL KIRKLAND  |  June 5, 2011 at 3:35 AM
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WASHINGTON, June 5 (UPI) -- The U.S. Supreme Court gets hot, like the weather, in June, when decisions in all the most controversial cases, like those involving Walmart and Microsoft, come cascading down as the justices join a frantic race to get out of Dodge for the summer recess.

Many controversial cases are decided in June, the last full month of the term, regardless of when they were heard. The prevailing theory is that the issues in the cases are so weighty it takes time to get a clear majority. But another theory once popular in the Supreme Court press room says the justices want to rule on controversial cases at the last minute, just before they leave for parts unknown, because they don't want to hear all the bitchin'.

Some cases in which the world is still waiting for a resolution:

-- Walmart vs. Duke.

Walmart Inc., one of the world's biggest corporations and one many social critics love to hate for its purported impact on small-town America, is facing a legal nightmare. The nightmare is what may turn out to be the largest class-action suit in U.S. history, one claiming systematic discrimination against women in promotion and pay.

If allowed to go forward, the suit and its projected class of 1.5 million U.S. women could cost the retail giant billions of dollars.

"This is the big one that will set the standards for all other class actions," Robin S. Conrad, executive vice president of the National Chamber Litigation Center, an agency of the U.S. Chamber of Commerce, told The New York Times. The center has filed several friend of the court briefs supporting Walmart.

The case started in San Francisco in 2001 when six women filed suit claiming Walmart discrimination, in part because they were passed over for promotion in favor of men.

The dispute to be decided by the Supreme Court is not about whether the women's claims have merit. Rather, it's about the certification of the class.

The Walmart plaintiff class, if the high court allows it, includes all women who worked in any of the company's 3,400 U.S. stores since the late 1990s.

"This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart's approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications," Walmart said in court documents. "The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company's express anti-discrimination policy."

The company questions whether monetary claims can be brought under the Rule 23 of the Federal Rules of Civil Procedure "which by its terms is limited to injunctive or corresponding declaratory relief," and whether the certification of the huge class passes muster under civil rights law and the Constitution's "due process," or fair proceedings, guarantee.

Washington attorney Joseph Sellers, co-leading counsel for the plaintiffs, scoffed at the idea Walmart would have a tough time defending itself against such a large class action. "There's a substantial body of evidence that comes from Walmart's own workforce data," including "very sophisticated analysis" to show what company policy was.

"We have evidence that there is a culture at the company that condones or says women are second-class citizens," Sellers told United Press International last fall, some of it surfacing at managers' meetings at strip clubs or at Hooters restaurants.

A federal judge and two sittings of the 9th Circuit -- a three-judge panel and the full 11-member court rehearing the appeal en banc -- approved the class. But the vote was narrow in both cases -- 2-1 for the panel and 6-5 for the full court.

The nine members of the U.S. Supreme Court heard argument on the case in March. The court's five-member conservative bloc, led by Justice Anthony Kennedy, seemed skeptical of the class.

-- Microsoft vs. i4i Limited Partnership.

At issue is whether the software giant or anyone charged with violating a patent can avoid liability by showing the patent doesn't meet the law's criteria for getting a patent. Also at issue is the standard to prove invalidity: Must it be by "clear and convincing evidence."

For its part, Microsoft wants the justices to overturn a $290 million patent infringement verdict against it. But a ruling in the case will have implications throughout intellectual property law.

The high court heard argument in the case April 18, with senior Justice Antonin Scalia presiding -- Chief Justice John Roberts has owned Microsoft stock in the past, and recused himself from consideration of the dispute.

Toronto-based i4i Limited Partnership owns the patent on editing custom XML, a computer language. The company sued Microsoft, based in Redmond, Wash., alleging the XML editor in some versions of Microsoft Word infringed on the patent.

A federal jury in Texas rejected Microsoft's argument that the patent was invalid and awarded the patent-holder $200 million in damages.

The U.S. appeals court in Washington upheld the jury's verdict and award, but added the verdict "does not affect copies of Word sold or licensed before the injunction (against its sale) goes into effect. Thus, users who bought or licensed Word before the injunction becomes effective will still be able to use the infringing custom XML editor and receive technical support from Microsoft. After its effective date, the injunction prohibits Microsoft from selling, offering to sell, importing or using copies of Word with the infringing custom XML editor. Microsoft is also prohibited from instructing or assisting new customers in the custom XML editor's use."

Microsoft wants a lower threshold -- "preponderance of the evidence" rather than "clear and convincing evidence" -- and says shaky copyrights should be examined more aggressively. Patent holder i4i wants to keep the current higher standard.

The case could go either way, though many observers said the justices seemed reluctant to overrule precedent supporting a heightened level of scrutiny.

-- American Electric Power Co. vs. Conn.

At issue is whether federal law allows states and private parties to sue utilities for contributing to global warming.

SCOTUSBLOG.com calls it the "biggest-ever case on the issue of global warming."

But Climate Lawyers Blog says no matter what the high court does in the case, even if it decides for utilities and against the states, the fat lady will have yet to sing.

"If a decision favorable to carbon dioxide emitters is issued by the Supreme Court, that will only mean that federal common law nuisance claims cannot move forward," the group says on climatelawyers.com. "It says nothing about state law nuisance claims, nor new theories that have not yet been tested, nor even thought up. We strongly believe that carbon dioxide liability suits will be with us for a while yet. Our reason: Climate change is ongoing and those whose interests are harmed will look for succor. So theories of liability will be spun and suits will be brought. And such suits will require a defense."

The Legal Information Institute at Cornell University Law School says, "The decision (in the case) will depend on whether the Supreme Court feels that the judiciary can properly handle such claims, or whether the complexity, controversy, and volume of such cases counsel in favor of dismissing this initial suit."

The Supreme Court heard the case April 19.

The case was brought by six states against five power companies, alleging the companies' carbon emissions create a public nuisance by contributing to global warming and damaging the environment.

A federal judge dismissed the suit before trial, ruling that disputes concerning global warming are "political questions" that should be settled by Congress, not the courts.

But the federal appeals court in New York ruled that courts are allowed to hear such cases.

At argument before the Supreme Court, most of the justices seemed to reject suggestions by the utilities and the U.S. Justice Department that they throw out the case on procedural grounds, SCOTUSBLOG reported. But no justice was able to come up with scenario in which a federal judge could try and decide such a case.

The states also had to contend with this from Justice Ruth Bader Ginsburg, SCOTUSBLOG said. "The relief you are seeking," she told the states' lawyer, "sounds like the kind of thing (the Environmental Protection Agency) does. Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a district judge as a kind of 'super EPA.'"

-- Sorrell vs. IMS.

Your local druggist collects data on what drugs are being prescribed for patients, edits out personal information and then sells the data to drug companies or otherwise makes it publicly available. At issue in the case is whether a state law can restrict access to the data unless patients consent, or whether such a law violates the commercial free speech guarantee implicit in the First Amendment.

The data doesn't include a patient's name and address, but does include the name of the doctor, the dosage and type of medication, where it was prescribed and the age and gender of the patient.

The Supreme Court heard argument in the case April 27.

Vermont enacted a law in 2007 to restrict the commercial use of pharmacists' data. The law was designed to protect privacy and reduce healthcare costs by encouraging the use of generic drugs.

Doctors are allowed to opt in or out of the law's protection.

Three data-mining companies, IMS Health Inc., Verispan LLC and Source Healthcare Analytics Inc., and the trade group for drug manufacturers challenged the law in federal court.

A judge upheld the law, but the appeals court in New York struck it down, saying it violated the First Amendment.

However, the appeals court in Boston upheld similar laws in Maine and New Hampshire.

-- Arizona Free Enterprise Club vs. Bennett.

The U.S. Supreme Court heard argument March 28 on Arizona laws that help publicly funded candidates at the expense of privately funded candidates.

The laws help state candidates who forgo private campaign financing in favor of varying state subsidies.

A key high court swing vote, Justice Anthony Kennedy, repeatedly expressed his skepticism during argument about the Arizona campaign finance laws, saying the law reduces speech in political campaigns.

Kennedy was instrumental in the 5-4 conservative majority last year that struck down restrictions on political contributions by corporations and unions.

In accepting the dispute last year, the high court agreed to hear the issues of two combined cases involving the state's Clean Elections program.

In the first, the question is whether the First Amendment prohibits states from giving additional government subsidies to publicly financed candidates when those subsidies are triggered by independent groups acting on behalf of privately financed candidates.

In the second, one question is whether Arizona's "matching funds trigger" -- the condition that kicks in public matching funds measured by independent expenditures or by the raising and spending of money by privately financed candidates and their supporters -- also violates the First and 14th Amendments.

Also in the second of the combined cases is the question of whether Arizona law violates those amendments by regulating campaign financing "to equalize resources among competing candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner."

The high court last year blocked a portion of the Clean Elections program in which the state provided "matching funds" to privately financed candidates, meaning they were unavailable in the last election cycle.

Challengers of the law said it unconstitutionally limits the free speech of privately funded candidates who were forced to cut back spending to avoid letting their opponents receive more public money.

A federal judge agreed with the challengers, but the federal appeals court in San Francisco supported the state laws.

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