We are heading into the home stretch of the Supreme Court’s Term, with opinions in all this year’s cases expected to be issued by the end of June.  The Court’s docket contains a host of cases presenting very high-profile issues, including the constitutionality of race-conscious undergraduate admissions processes; electoral redistricting plans; state standing to challenge federal immigration and education policy; and the intersection of the First Amendment and state public accommodation nondiscrimination LGBT+ laws.  There also are some business cases that have received much attention, including the Court’s first potential analysis of Section 230 of the Communications Decency Act and scope of immunity for interactive computer services. 

But there also are several lower-profile cases that are well worth watching due to their significance for the business community.  These cases could have a major impact on litigation risk, the scope of liability under various federal statutes, and the options available for challenging federal and state regulatory actions.  Below, we highlight a few of those cases: 

  • State statutes that have significant impact on conduct in other States.
    • In National Pork Producers Council v. Ross, the Court will address the dormant Commerce Clause doctrine, which generally has been invoked to prevent States from unduly burdening interstate commerce.
    • The case concerns California Proposition 12, which imposes certain requirements on pork farmers who produce certain pork products for sale in California.  The challengers argue that the law violates the dormant Commerce Clause by regulating the pork industry outside of California.
    • Covington filed an amicus brief in the case on behalf of the Retail Litigation Center and other groups, arguing that insulating Proposition 12 from judicial scrutiny “neglects the concerns of the Framers that were a motivating force behind the Constitution’s ratification.”
    • The Court’s decision could have a major impact on the ability of States to regulate other types of out-of-state conduct, and will also provide insights on the current Justices’ views of the dormant Commerce Clause doctrine and related federalism principles.
  • Where corporations can be sued.
    • In Mallory v. Norfolk Southern Railway, the Supreme Court will address the constitutionality of a Pennsylvania law that effectively requires any company doing business in that State to agree to be sued there.
    • It is settled that corporations may typically be sued where they are incorporated or have their principal place of business (general jurisdiction), and they also may be sued in a particular case where the plaintiff’s claim arises from the defendant’s contacts with the particular State (specific jurisdiction).  Mallory concerns consent as the basis for personal jurisdiction.
    • In this case, the plaintiff is a Virginia man who worked for a Virginia-based railroad, yet he sued his employer in Pennsylvania court under Pennsylvania’s broad personal jurisdiction provision.  The lower courts ruled for the defendant employer and held that the Pennsylvania law violated due process, and the U.S. Solicitor General filed a brief supporting the defendant.
    • The decision is likely to have significant implications for the permissible scope of personal jurisdiction, particularly for companies that operate across State lines.
  • Scope of trademark protections for purely foreign sales.
    • In Abitron Austri GmbH v. Hetronic Int’l, Inc., the Court will decide whether and to what extent the Lanham Act (which permits lawsuits for trademark infringement), allows the owner of a trademark registered in the United States to recover damages when the alleged trademark infringement occurred outside the United States.
    • The dispute involves a group of Austrian and German companies who were found by a jury to have infringed the trademark of a U.S. company that manufactures radio remote controls for construction equipment.  Even though a small fraction of the infringing sales ended up in the United States, damages were awarded (and affirmed by the Tenth Circuit) based on global sales.
    • The Supreme Court has long recognized that the Lanham Act may be applied extraterritorially to a certain extent, but the Court has not established a uniform standard, and the courts of appeals have developed a range of tests for addressing the Act’s extraterritorial scope.  In its amicus brief for the United States, the Solicitor General suggested limiting the Act’s extraterritorial application to foreign conduct “likely to have the ultimate effect of confusing or deceiving consumers in the United States,” which is one way the Court could narrow the statute’s geographic scope.
    • The case is likely to influence the reading of other statutes that could be understood to have extraterritorial application.

Of course, the above is not intended to be an exhaustive list.  Elsewhere, we and our colleagues have written about other cases that are certain to have major business impacts, so stay tuned. 

Whether the Court will opt for narrow or broad rulings in any of these cases remains to be seen.  We will be monitoring these and other cases in order to evaluate their impacts, advise our clients, and leverage the outcomes in future litigation.

Photo of Daniel Randolph Daniel Randolph

Daniel Randolph is a Washington-based litigator, with a focus on appellate and complex regulatory litigation. He has argued numerous appeals, including before the D.C. Circuit, and has briefed dozens of matters in a range of district and appellate courts. Daniel also has significant…

Daniel Randolph is a Washington-based litigator, with a focus on appellate and complex regulatory litigation. He has argued numerous appeals, including before the D.C. Circuit, and has briefed dozens of matters in a range of district and appellate courts. Daniel also has significant trial experience: he has successfully first-chaired bench trials and played major roles in jury trials.

Daniel draws from broad experience across multiple practice areas, including commercial litigation, insurance recovery litigation, patent litigation, and products liability litigation. He has particular expertise in challenges to agency action under the APA.

Previously, Daniel was an Assistant United States Attorney at the U.S. Attorney’s Office for the District of Columbia. He also clerked for Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia, and for Judge James A. Wynn, Jr., of the U.S. Court of Appeals for the Fourth Circuit.