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Government & Elections
by AARP Foundation Litigation, November 29, 2010
This term, the court has granted certiorari on a wide variety of cases that AARP believes may impact people 50 and older. Of the 10 cases discussed in this preview, AARP either has or is intending to file an amicus curiae brief to present to the court AARP's view of the case's impact on older people.
Statutes regulating the workplace and benefits are again before the court.
In Amara v. Cigna, the court will decide whether participants must show that they were likely harmed in order to recover benefits based on a conflict between the terms of the plan document and the summary plan description provided to employees.
In Staub v. Proctor Hospital, the court will decide whether an employer can be held liable for discrimination under the "cat's paw" theory — i.e., can the employer be held liable for the discriminatory bias of a non-decision maker employee who influences the person who does make the employment decision?
In an interesting twist on retaliation claims in the case of Thompson v. North American Stainless, LP, the court will decide if an employer may be held liable for third-party retaliation claims against persons who have not personally engaged in protected activity (e.g., the employer won't retaliate directly against you for giving testimony against it, so the employer fires your daughter).
The court will continue its exploration of the relationship between federal and state governments. This term, the court will decide whether independent state agencies may sue state officials in federal court for injunctive relief to remedy a violation of federal law or whether sovereign immunity under the 11th Amendment applies in the case of Virginia Office of Protection and Advocacy v. Reinhard.
The Supreme Court's grant of certiorari in two investor protection cases continues the court's recent attention to issues touching investor access to the courts for pursuit of securities fraud claims.
In Matrixx v. Siracusano, the stage is set for the court to define what constitutes "materiality" under the Securities Exchange Act insofar as a corporation's misrepresentations are concerned, at least as pertains to the pharmaceutical industry. This is, then, a threshold issue for securities fraud litigants.
In Janus v. First Derivative Traders, the court is called upon to define the reach of its 2008 holding in Stoneridge Investment Partners proscribing a private cause of action for investors and limiting accountability of nonprincipals under the Private Securities Litigation Reform Act. The upcoming decision in Janus is practically certain to clarify the boundaries separating primary and secondary players in the securities markets, and the extent of investors' opportunities for recourse in securities fraud claims for years to come.
With the continued softness in the economy, consumer protection issues are of particular importance to older people. Issues directly affecting consumers and their financial security will be dealt with by the court in the cases of McCoy v. Chase Manhattan Bank, N.A. (credit cards); Ransom v. MBNA, American Bank, N.A. (bankruptcy); and AT&T Nobility LLC v. Concepcion (forced arbitration of consumer claims).
Finally, the court will decide in Henderson v. Shinseki a rather technical case on whether an appeal of a denial of veteran's benefits must meet the exact filing deadlines. With the troop drawdown in Iraq and the troop buildup in Afghanistan, this case may have a significant impact on veterans and their ability to access benefits.
AARP is monitoring a number of pending petitions for certiorari. Two cases involve pharmaceutical manufacturers and their rights and obligations. One case is the largest employment discrimination class action ever filed.
The interrelationship of the three branches of government continues to be evident, particularly as Congress reacts to the Supreme Court's decisions and the court reacts to congressional legislation. AARP is part of a coalition of advocacy groups for employee rights that is working on legislation to overturn Gross v. FBL Financial Services Inc. The decision in Gross seriously undermines — and has the potential to eviscerate — the rights and remedies Congress prescribed for older workers in the Age Discrimination in Employment Act. Congress' reaction to the Gross decision may portend a more active role for Congress in responding to Supreme Court decisions.
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