Legal Advocacy
US Supreme Court Preview
This Supreme Court review was undertaken as part of the education and advocacy efforts of AARP Foundation and discusses cases that will have significant impact on older Americans and AARP members, in particular.
The Supreme Court 2007: What’s at Stake for Americans 50+ (pdf format).
Most commentators agreed that last Term the Court moved to the right, with Justices Roberts and Alito leading the charge but with Justice Kennedy clearly the swing vote. The U.S. Chamber of Commerce remarked that last Term was the “best” it had ever seen in terms of pro-business decisions. Observers will be examining this Term’s decisions to see if this trend continues and whether the 5-4 decisions are as contentious as some last Term.
So far this Term, one of the biggest, and certainly most media-intensive, cases is Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. (In re: Charter Communications, Inc., Securities Litigation). Stoneridge concerns whether those who knowingly participate in a scheme to defraud investors may be held liable even though they do not make false public statements about the company or transactions at issue. The answer to this question will certainly reverberate throughout the financial markets and is extremely important to AARP members’ financial security. In a rather unusual step, the Department of Justice, represented by the Office of Solicitor General, not only rejected a request from the Securities and Exchange Commission that the government file an amicus brief on behalf of the investors, but proceeded to file a brief on the other side, at the urging of the Treasury. Congressmen Barney Frank and John Conyers filed a brief in support of the investors, while two groups of former SEC chairmen and other officials filed briefs on opposite sides.
With almost half of AARP’s 39 million members in the work force, cases concerning employment and benefit issues are extremely important. The Court has already accepted three cases for decision in these issue areas and has several important petitions for certiorari pending. The benefits case concerns whether a sole 401(k) participant may sue the plan’s fiduciary to recover losses to his 401(k) account. The Fourth Circuit rejected both theories the participant asserted leaving him with no remedy. LaRue v. DeWolff, Boberg & Assocs., Inc. The two employment cases focus on procedural and evidentiary questions in age discrimination cases. In the first case, the Court will assess whether a plaintiff’s submission of an “intake questionnaire” to the Equal Employment Opportunity Commission (EEOC) is sufficient to meet the requirement of filing an EEOC “charge” before initiating a lawsuit under the Age Discrimination in Employment Act. Holowecki v. Fed. Express Corp. In the second case, the Court will answer the question of whether the testimony of co-workers who had been terminated in the same company-wide reduction-in-force as the plaintiff, but who had worked in different parts of the company, was relevant and admissible to prove age discrimination. Mendelsohn v. Sprint/United Management Co.
Finally, the Court continues to struggle with the breadth of federal preemption of state laws. This year, the preemption issue presents itself in the consumer and health care context. The Court will settle the question whether the Food, Drug, and Cosmetic Act expressly preempts state-law actions brought by patients who have been injured by medical devices that received premarket approval from the FDA. Riegel v. Medtronic, Inc.
With numerous petitions for certiorari pending and others which we have been told will be filed on issues affecting AARP members, we expect the Term to be busy for the Court.