Business Cases to Watch for Next Term

Client Alert

There already are several significant business cases on the Supreme Court’s docket for next Term, which will begin on the first Monday in October 2005. Listed below are the questions presented by some of those cases and the dates that the Court will hear oral argument. There also undoubtedly will be more business cases added to the docket after the Court returns at the end of September from its summer recess and rules on all of the certiorari petitions that are filed over the course of the summer.


Texaco, Inc. v. Dagher, No. 04-805; Shell Oil Co. v. Dagher, No. 04-814: Whether it is per se illegal under Section 1 of the Sherman Act, 15 U.S.C. ¤1, for an economically integrated joint venture to set the prices at which the joint venture sells its own products. (Likely to be scheduled for oral argument in January 2006.)

Illinois Tool Works Inc. v. Independent Ink, Inc., No. 04-1329: Whether, in an action under Section 1 of Sherman Act, 15 U.S.C. ¤ 1, alleging that the defendant engaged in unlawful tying by conditioning a patent license on a licensee’s purchase of a non-patented good, the plaintiff must prove as part of its affirmative case that the defendant possessed market power in the relevant market for the tying product, unless market power is instead presumed based solely on the existence of the patent on the tying product. (Scheduled for oral argument on December 6, 2005.)

Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., No. 04-905: (1) Whether an unaccepted offer that does not lead to a purchase — so that there is not "discriminat[ion] ... between different purchasers" as the statutory language of the Robinson-Patman Act (RPA), 15 U.S.C. ¤13, contemplates — can be a basis for liability under the RPA; (2) Whether the RPA permits recovery of damages by a disfavored purchaser that does lose sales or profits to a competitor that does not purchase from the defendant, but does not lose sales or profits to any purchaser that "receives the benefit of" the defendant’s price discrimination. (Scheduled for oral argument on October 31, 2005.)


Buckeye Check Cashing, Inc. v. Cardegna, No. 04-1264: Whether the Florida Supreme Court erred by holding that the Federal Arbitration Act allows a party to avoid arbitration by claiming that the underlying contract containing the arbitration clause (but not the arbitration clause itself) is void for illegality. (Scheduled for oral argument on November 29, 2005.)

Federal Court Jurisdiction

Wachovia Bank, N.A. v. Schmidt, No. 04-1186: (1) Whether, for purposes of federal diversity jurisdiction, a national banking association is "located" in, and thus deemed to be a citizen of, every state in which the association maintains a branch, as held by the court below, or instead has a more limited citizenship; (2) Whether the word "located," as used in 28 U.S.C. ¤ 1348, is ambiguous. (Scheduled for oral argument on November 28, 2005.)

Lincoln Property Co. v. Roche, No. 04-712: (1) Whether an entity not named or joined as a defendant in the lawsuit can nonetheless be deemed a "real party in interest" to destroy complete diversity of citizenship in a case removed from state court under 28 U.S.C. ¤1441(b); (2) Whether a limited partnership’s citizenship for diversity jurisdiction purposes is determined not by the citizenship of its partners, but by whether its business activities establish a "very close nexus" with the state. (Likely to be scheduled for oral argument in January 2006.)


IBP, Inc. v. Alvarez, No. 03-1238; Tum v. Barber Foods Inc., No. 04-66: The question presented in No. 03-1238 is whether employees are entitled to compensation under the Fair Labor Standards Act (FLSA) for the time spent walking between compensable clothes-changing time and the time employees arrive at or depart from their actual work stations. The questions presented in No. 04-66, are (1) Whether employees are entitled to compensation under the FLSA for time spent walking to and from stations where required safety equipment is distributed; and (2) Whether employees are entitled to compensation under the FLSA for time they must spend waiting at required safety equipment distribution stations. (Scheduled for oral argument on October 3, 2005.)

Civil Rico

Bank of China v. NBM LLC, No. 03-1559: Whether the Second Circuit erred when it held that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish "reasonable reliance" under 18 U.S.C. ¤ 1964(c). (Likely to be scheduled for oral argument in January 2006.)

Scheidler v. National Organization for Women, Inc., No. 04-1244; Operation Rescue v. National Organization for Women, Inc., No. 04-1532: The questions presented in No. 04-1244 are (1) Whether the Seventh Circuit, on remand, disregarded the Supreme Court’s mandate by holding that "all" of the predicate acts supporting the jury’s finding of a Racketeer Influenced and Corrupt Organizations (RICO) violation were not reversed, that the "judgment that petitioners violated RICO" was not necessarily reversed, and that the "injunction issued by the District Court" might not need to be vacated; (2) Whether the Seventh Circuit correctly held, in conflict with decisions of the Sixth and Ninth Circuits, that the Hobbs Act, 18 U.S.C. § 1951(a), can be read to punish acts or threats of physical violence against "any person or property" in a manner that "in any way or degree * * * affects commerce," even if such acts or threats of violence are wholly unconnected to either extortion or robbery; (3) Whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. § 1964(c). The questions presented in No. 04-1532 are the same in substance, although worded differently. (Scheduled for oral argument on November 30, 2005.)

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