Tut Tut - we wouldn't want this!!!
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|Mon, 05-10-2010 - 5:07pm|
I didn't know that the Supreme Court is supposed to represent business and not the citizens of the United States - my bad!!!!
Obama 10th Justice Kagan Subverts Supreme Court Business Tilt
By Greg Stohr
Making her first argument as the federal government’s high court advocate, Kagan urges the nine justices to keep rules in place barring corporations from buying political campaign ads. Kagan contends that the restrictions protect investors who disagree with a company’s political positions.
“It’s very difficult for individual shareholders to be able to monitor what each company they own assets in is doing,” Kagan, a former Harvard Law School dean, tells the justices.
The argument strikes what has become a theme for Kagan, 49, an appointee of President Barack Obama who is using her office’s clout to battle against business groups and for shareholders, Bloomberg Markets reports in its February 2010 issue. While President George W. Bush’s solicitor general opposed investors in five straight high court cases, Kagan has advocated for shareholder lawsuits twice in the court’s current term.
Rulings in Kagan’s favor might lead to additional costly lawsuits against companies. For example, Wyeth, now part of Pfizer Inc., has had to set aside more than $21 billion since 1999 to resolve 200,000 personal-injury claims over the diet- drug combination fen-phen.
Mutual Fund Case
While many cases don’t affect a company’s stock, some rulings send shares tumbling. Sherwin-Williams Co. shares fell 18 percent after a 2006 verdict that might have forced lead- paint makers to spend more than $2 billion to clean contaminated buildings. The stock rose 6 percent on the day a court overturned the verdict in 2008.
In a case against Merck & Co., Kagan’s office is asking the Supreme Court to let shareholders wait longer to sue companies for securities fraud. The justices are considering whether to allow a lawsuit by investors who say the drugmaker deceived them about the risks posed by its Vioxx painkiller.
Kagan and Securities and Exchange Commission lawyers are also urging the court to ease the way for investors to sue mutual fund managers over their fees. The fund industry aims to avert more lawsuits by the 90 million investors who together hold $11 trillion in U.S. mutual funds.
Solicitor General’s Clout
“Because it goes to so central a question of the economics of the business, it may be the most significant Supreme Court decision in the history of our industry,” says Paul Schott Stevens, president of the Washington-based Investment Company Institute, which represents mutual funds.
The solicitor general, the fourth-ranked official in the Justice Department, is known as the 10th justice because of the position’s influence at the high court. Congress established the office in 1870 to help the federal government speak with a single voice in the courtroom. The solicitor general is also a counselor to the justices. At least 10 times a year, they seek the office’s advice on a pending appeal, asking whether consideration of the case would promote clarity in the law.
In return, the court affords the two dozen lawyers in the office special privileges, granting virtually every request for argument time. Over the past half century, the office has won three-quarters of its high court cases.
That influence puts Kagan in a position to push some of the administration’s policy views into law. Obama, who interviewed Kagan for the high court seat that went to Sonia Sotomayor in May, is using government agencies to broaden consumer and shareholder rights, strengthen environmental protections and make companies more vulnerable to lawsuits.
“An Obama presidency is going to make a huge difference,” says Theodore Olson, a Washington lawyer at Gibson Dunn & Crutcher LLP who served as Bush’s solicitor general from 2001 to 2004. “Things might be tougher for the business community at the Supreme Court in the coming years.” Kagan declined a request for an interview.
In pressing its agenda, the Obama administration is clashing with the Washington-based U.S. Chamber of Commerce, the world’s biggest business lobby. While the White House duels with the chamber over health care, financial and climate change regulation, Kagan and the lobbying group are regular foes in court. She and the chamber are opposing each other in 9 of the 10 cases in which both had taken positions as of Jan. 8, including the campaign finance and mutual fund and Merck shareholder cases.
Chamber of Commerce
In one investment case, Kagan is siding with the chamber. The justices will review a lower court decision that said a suit by Australian stockholders of Melbourne-based National Australia Bank Ltd. was beyond the jurisdiction of American courts, even though the case stemmed from allegedly fraudulent accounting by a U.S. subsidiary. Kagan said in court papers that the link between the subsidiary’s actions and the shareholders’ alleged injury was too tenuous to warrant letting the suit go forward in a U.S. court.
The chamber’s litigation unit, set up in 1977, may be second only to the solicitor general’s office in its influence at the Supreme Court. The group’s lawyers coordinate company arguments in high court cases, hold preargument practice sessions and file briefs on the most-pressing legal issues facing businesses.
“The quality of advocacy on the business side has improved light years in the last 30 years,” says Carter Phillips, a Washington lawyer at Sidley Austin LLP who has argued 11 cases at the high court in the past two full terms. “A big part of that is the chamber.”
In battling the chamber, Kagan brings a record in politics and academia of pragmatic dealmaking and fairness, her former colleagues say. A magna cum laude graduate of Harvard Law in 1986, Kagan went on to clerk for Thurgood Marshall, a civil rights pioneer who’d become the Supreme Court’s first black justice. She worked as a researcher for Democrat Michael Dukakis’s unsuccessful presidential campaign in 1988 before spending two years as a litigator at Williams & Connolly LLP, a corporate law firm in Washington.
Kagan took a teaching job in 1991 at the University of Chicago Law School, where she helped recruit fellow Harvard Law alum Obama to the faculty. She took a summer off from her duties to advise then-Senator Joe Biden, now Obama’s vice president, on the Senate’s consideration of Ruth Bader Ginsburg’s Supreme Court nomination in 1993.
Harvard Law Dean
In 1995, Kagan accepted a post in President Bill Clinton’s White House, where she earned a reputation for forging compromises and breaking logjams. As a domestic policy adviser for Clinton and lead negotiator for an anti-smoking proposal to let the Food and Drug Administration regulate tobacco, she found common ground between the FDA and Republican Senator John