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Noteworthy Cert Denials of 2011

Tuesday, December 27, 2011

Kate Hooker | Bloomberg Law Each year, the opinions handed down by the U.S. Supreme Court are subjected to an exhaustive analysis by media outlets and legal scholars. The petitions that never receive certiorari review, however, are often rejected with little fanfare, despite the fact that the impact of the Court's denial is sometimes as significant as its holdings. In 2011, the Court refused to grant certiorari review in lawsuits that spanned the full spectrum of legal issues, implicitly imprinting the status quo with its stamp of approval. Below is a sampling of some of the significant cases that the Court declined to consider over the past year.


The past year saw several notable instances where the Court declined invitations to review lawsuits arising under antitrust law. On January 10, the Court denied a certiorari petition filed by the owners of 49 travel agencies who accused the nation's airlines of conspiring to fix the commission rates they paid over a seven-year period.1 The Court left undisturbed the decision of the U.S. Court of Appeals for the Sixth Circuit that the agencies' allegations were insufficient to show that the airlines made an agreement that violated federal antitrust law.2 On the same day, the Court also refused to review a petition in an antitrust suit charging four of the country's biggest music labels of anti-competitive conduct related to digital music the companies sold through online services called MusicNet and Pressplay.3 The denial of certiorari review left intact a Second Circuit ruling allowing consumers' claims, which accused the companies of charging unreasonable rates, imposing unwarranted restrictions on the downloaded files, and fixing the prices for digital songs, to proceed beyond the motion to dismiss stage.4 In October, the Court rejected a petition to review the dismissal of two price-fixing lawsuits filed by U.S. gasoline retailers against oil companies owned or partly-owned by foreign governments that belong to the Organization of Petroleum Exporting Countries (OPEC).5 The Court declined to revisit a Fifth Circuit decision that the lawsuits were precluded by the political question doctrine because they "deeply implicate[d] concerns of foreign and defense policy."6

Employment Law

In employment law news, the Court left intact a ruling in a racial discrimination case filed by a group of black financial advisers at Merrill Lynch, Pierce, Fenner & Smith, Inc., who claimed that they were paid significantly less than their white counterparts. 7 A lower court had previously held that plaintiffs did not have enough in common to warrant class treatment and that the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, No. 10-277, 2011 BL 161238 (U.S. 2011) did not change that result.8

Environmental Law

The Court opted not to disturb several rulings that benefited environmental protection efforts this year. For example, in June, the Court refused to review a D.C. Circuit decision upholding a provision of the federal Superfund law, 42 U.S.C. §§ 9601-75, that allows the Environmental Protection Agency to order companies to clean up contaminated sites.9 The plaintiff in that lawsuit, General Electric Co., had previously argued that the provision violated its constitutional rights. Similarly, the Court refused to review a decision holding that the coal industry was obligated to pay into a government fund that pays for the restoration of land damaged by coal mining.10 In addition, an appeals court decision that the Endangered Species Act, 16 U.S.C. §§ 1531-44, was a valid use of Congress's power to regulate commerce was left intact.11 In that case, three farms that were challenging the protection of the delta smelt, a fish native to Northern California, were denied Supreme Court review. On the other hand, the Court denied New York City's request to revisit its plan to incentivize the use of hybrid or clean-diesel taxis by allowing drivers who switch to the cleaner vehicles to charge more per shift.12 The Court declined to revisit a lower court ruling that the proposed regulations would effectively impose fuel-economy standards in violation of federal law.

First Amendment Law

This year, the Court denied two cert petitions filed by Michael Newdow, an atheist minister and lawyer, whose First Amendment challenges to the use of "In God We Trust" on U.S. currency13 and the involvement of religious figures Rick Warren and Joseph Lowry in the presidential inauguration ceremonies had been dismissed by lower courts.14 The Court also declined to consider the appeal of a Tennessee high school student who claimed that a rule forbidding him from wearing the Confederate flag violated his right to free speech.15

Homeland Security

The Court rejected several appeals from detainees at the U.S. prison in Guantanamo Bay, Cuba. Although a district court ordered the release of Mohammed Al-Adahi, an accused al-Qaeda supporter, in 2009 based on a lack of evidence, the D.C. Circuit reversed the ruling a year later. The Supreme Court denied a subsequent petition filed by Adahi on January 18, 2011.16 The Court also denied petitions for certiorari review filed by five Chinese Uighurs held at Guantanamo since 2002, who were attempting to challenge an appellate court ruling that they had no right to be released on American soil when the government tried to find other countries that would accept the prisoners.17 Along similar lines, the Court refused to consider the arguments of 100 Guantanamo inmates who wanted the U.S. government to provide 30 days notice before transferring them to another country that, according to the inmates, might torture them.18 The Court also declined a petition filed by the American Civil Liberties Union on behalf of five men whose claims that the CIA transferred them to foreign countries to be tortured were dismissed under the state secrets privilege.19 In addition, the Court left intact a ruling that the Alien Tort Statute, 28 U.S.C. § 1350, precluded a lawsuit filed by 26 former prisoners at Abu Ghraib against two military contractors who allegedly abused them.20

Patent Law

The Court denied a petition in which Vanderbilt University sought to overturn a ruling that three of its scientists did not play a role in creating Cialis, a popular impotence drug manufactured by Eli Lilly & Co., and therefore did not need to be named as co-inventors on patents covering the drug.21 In addition, the Court refused a request by a group of drugstore chains to review a settlement in which Bayer AG paid Barr Laboratories almost $400 million to delay the release of a generic version of Bayer's Cipro antibiotic drug.22 On the other hand, the Court declined Eli Lilly's invitation to reconsider an appeals court decision to invalidate its patent on Gemzar, a cancer drug, which would have protected the company from generic competition until 2013.23 Pharmaceutical manufacturer Mylan Inc. filed a petition to revive its challenge to a patent covering Benicar and Azor, two hypertension drugs, which the Court denied in March.24 Similarly, the Court did not see the need to review a ruling that Teva Pharmaceuticals Industries Ltd. was prevented from selling a generic form of Temodar until 2013 by Merck & Co.’s patent on the brain cancer drug.25

Products Liability

In the products liability arena, the Court let two significant verdicts against corporations stand without further review. First, the Court rejected Pfizer Inc.’s request to reconsider a $58 million jury verdict against the drug manufacturer in a case filed by women who were diagnosed with breast cancer after taking the company’s Premarin and Prempro hormone replacement therapy drugs during menopause.26 Similarly, the Court refused to disturb a lower court order requiring Phillip Morris USA and R.J. Reynolds to spend $270 million on a smoking cessation program in Louisiana.27 Evidently, the Court was unswayed by the tobacco companies’ argument that the class action lawsuit should have been thrown out because the individual smokers were not required to show that they were entitled to damages. In a major boon for the mobile phone industry, however, the Court refused to breathe life back into a lawsuit filed by customers who alleged that the use of cell phones may cause cancer, which was dismissed as precluded by Federal Communications Commission regulations.28

Securities Law

One of several noteworthy securities law certiorari petitions filed in 2011 involved a shareholder lawsuit against Apollo Group Inc., the parent of the University of Phoenix.29 The Court refused to consider Apollo’s challenge to a $300 million jury award in favor of the shareholders, who alleged that the company withheld a report that stated that it illegally paid its recruiters based on student enrollment. The Court also refused to consider arguments from Refco, Inc., an independent futures trader, that the law firm of Mayer Brown LLP was partially to blame for the fraud that led to Refco’s 2005 collapse.30 The Second Circuit had upheld the dismissal of the lawsuit on the ground that lawyers cannot be held responsible for fraud committed by their clients unless a false statement is directly attributed to them.31 Finally, the Court rejected an attempt by Blackstone Group, L.P. to appeal the dismissal of a shareholder class action accusing the private-equity firm of making material omissions in the offering documents for its 2007 initial public offering.32


The Court denied a petition for certiorari filed by a Cyprus company that sued Germany in an attempt to collect on bonds issued by the Weimar Republic in 1928, before Adolf Hitler took power and payment on the bonds was suspended.33 The bonds, which are tied to the price of gold, are now worth an estimated $8 billion.34 The Court did not disturb the Second Circuit's ruling that the company was precluded by sovereign immunity from suing over the bonds issued in East Germany and could not collect on the bonds issued in West Germany without violating the terms of the 1953 treaty between that country and the United States.35 The Court also refused to consider a New York Jets fan's arguments that his lawsuit against the New England Patriots and their head coach Bill Belichick should not have been dismissed.36 The fan's complaint charged that the 2007 "spygate" videotaping scandal, in which the Patriots violated league rules by videotaping the Jets' signals during a game, deprived him and others of their right to see a fair game.37 In March, the Court denied a petition filed by a group of commercial banks requesting that details about emergency loans that the banks accepted from the Federal Reserve during the 2008 economic crisis be shielded from the public.38 Bloomberg News had asked the Fed to turn over records related to the bailout program under the Freedom of Information Act, 5 U.S.C. § 552, and a district court had ordered the Fed to comply in 2009.39DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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