Insights Special Edition: US Supreme Court Term

Skadden, Arps, Slate, Meagher & Flom LLP

The U.S. Supreme Court has rarely been more central to the national conversation, with both the 2020 election and the arrival of new justices heightening public interest in the Court. Every term, the Court renders decisions that can profoundly influence commercial and regulatory relationships, and the current slate of cases is no exception. In this special issue, we survey a range of business-related disputes before the justices, with in-depth analysis of cases involving administrative law, arbitration, regulatory remedies and liability under the Alien Tort Statute.

US Supreme Court 2020 Term Preview 

The U.S. Supreme Court will address a number of issues important to businesses this term, including bankruptcy, administrative law and personal jurisdiction. The diverse docket will help shed light into Justice Amy Coney Barrett’s views on several key legal doctrines and how her addition will affect the direction of the court.

In Arthrex, Supreme Court To Review Constitutionality of Patent Board’s Structure 

The U.S. Supreme Court has agreed to hear a case that could affect the viability of the Patent Trial and Appeal Board as well as countless PTAB patentability decisions. The case will be closely watched, as the Federal Circuit vacated more than 100 PTAB decisions and remanded those decisions back to the PTAB for proceedings before newly designated administrative patent judge panels. Those remanded cases remain suspended and held in administrative abeyance.

Supreme Court Mulls Scope of Alien Tort Statute in NestleCargill

The U.S. Supreme Court has stepped in several times to narrow the applicability of the Alien Tort Statute. It is doing so again this term, in the consolidated cases Nestle and Cargill. The Court’s determination about an ATS plaintiff’s threshold pleading and proof burdens as to domestic defendants would address an issue that arises in a substantial portion of ATS cases. However, a clear-cut decision on the question whether U.S. corporations are subject to ATS-based claims at all may prove elusive.

Supreme Court Review of FTC Monetary Relief Authority Threatens Long-Standing Agency Practice

The U.S. Supreme Court case AMG Capital Management could substantially curtail the primary authority the Federal Trade Commission relies on to seek monetary relief from defendants in federal court. While the agency historically has pursued and obtained this type of relief, the Court’s certiorari grant has cast doubt on the FTC’s authority to do so. 

Supreme Court To Revisit Delegation of Arbitrability in Henry Schein II 

For the second time in two years, the U.S. Supreme Court will hear a case where the central issue is whether a court (or an arbitrator) should decide whether a dispute belongs in the courts or in arbitration. However the Court rules, Henry Schein II is a cautionary tale, as it illustrates the perils of unclear drafting in contractual dispute resolution clauses.

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