The death of Justice Antonin Scalia over the weekend may complicate nearly a dozen significant business pending before the U.S. Supreme Court.
The absence of the conservative icon from the panel creates a greater likelihood that contentious cases will result in a 4-4 tie among the justices. The lack of a clear majority will leave the previous rulings by lower courts intact.
One key case is a challenge to new Environmental Protection Agency rules governing carbon dioxide emissions from power plants. On Feb. 9 the Supreme Court blocked their implementation pending the outcome of a legal challenge to the climate change rules by more than two dozen states. If an appeals court upholds the rules, the regulations would remain on hold pending a Supreme Court ruling expected to come no sooner than 2017. Scalia was among the 5-4 majority voting for the stay. In previous opinions addressing climate change Scalia argued that climate change was a distinct issue from air pollution.
Other business-related cases likely to be affected by his absence or the potential for a 4-4 split on the court:
Friedrichs v. California Teachers Association
The legal question in this case, argued before the justices Jan. 11, is whether "agency shop" agreements for public employees violate the First Amendment. Prompted by efforts to limit the political influence of public-sector unions, conservative groups that helped bring the case argued a teacher's free-speech rights were violated by a requirement that she pay union fees. A ruling on behalf of the teacher would overturn a 1977 decision upholding public-sector union agency fees. During oral argument Scalia was "dubious" of the need to charge non-members. If the union's work was valuable to teachers it should be able to get them to sign up willingly, he said.
Spokeo v. Robins
Argued on Nov. 2, the justices must consider whether plaintiffs may sue even if they have no concrete injuries. A plaintiff argued that people search Web site Spokeo posted inaccurate information about him and is seeking to represent a class of people with similar complaints. The Fair Credit Reporting Act provides up to $1,000 in damages for inaccurate reports. The U.S. Chamber of Commerce argued that allowing standing to be based solely on a technical statutory violation would render traditional class-certification requirements meaningless and would invite class action abuse.
Tyson Foods v. Bouaphakeo
In another case involving class actions, the court on Nov. 10 heard whether a certified class may include people who suffered no injuries. This case examines the certification by a lower court of a class action against Tyson Foods (TSN) on behalf of 3,000 hourly workers who seek pay for time putting on and removing protective gear. Walmart (WMT) , Dow Chemical (DOW) and other companies urged the court to reject class actions unless specific legal claims predominate among the entire class.
Merrill Lynch v. Manning
In this case, argued Dec. 1, the court must decide whether the federal government has jurisdiction over state-law claims seeking to establish liability based on violations of the Securities Exchange Act.
Puerto Rico v. Franklin California Tax-Free Trust
The justices will hear argument on March 22 about Puerto Rico's effort to establish a bankruptcy regime for itself similar to Chapter 9 for municipalities.
In addition, the Supreme Court is hearing two potentially important patent cases this term.
In re Cuozzo involves the controversial inter pares review process, in which the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office reviews the validity of a previously awarded patent at the request of a third party. Last year, the Court of Appeals for the Federal Circuit held that its lacks jurisdiction to review a PTAB decision to institute or deny a request for inter pares review and that the PTAB may give claims their "broadest reasonable interpretation."
The other patent law matter involves the issue of what constitutes willful infringement of a patent for the purposes of calculating damages. The Court consolidated two cases that raised that very issue, Stryker Corp. (SYK) v. Zimmer (ZBH) and Halo Electronics v. Pulse Electronics (PULS) .
Said David Hayes, a patent law partner at Fenwick & West in San Francisco, "The Supreme Court's patent decisions in the last couple of years have generally been unanimous or at least not closely divided, so I don't think Scalia's death would make much of a difference to the outcome of those cases."
There are also a number of key cases in which the court has been asked to take up later in 2016 or in 2017:
American International Group v. U.S.
The justices would have to decide whether an appeals court erred by treating foreign income taxes not as taxes, but as expenses, in determining entitlement to the foreign tax credit.
McWane v. FTC
The justices would have to decide whether McWane's partial exclusive-dealing arrangement is unlawful under the FTC Act. The Federal Trade Commission previously ruled that a rebate letter was an unlawful exclusive dealing policy, even though a competitor was able to enter the market.
Wells Fargo Bank v. Gutierrez, et al.
The justices would decide whether a federal court may certify a class and award monetary relief to all class members, even though the class includes individuals who were not harmed by the challenged conduct.