Cert Grants Not Always Good for Business, May Spur Settlements

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The parties on the U.S. Supreme Court’s business docket don’t necessarily want to be there, and the court’s grant of review may even spur the parties to settle. The Supreme Court dropped oral argument in a securities case Oct. 17 after the parties alerted the court to their settlement.

By Kimberly Strawbridge Robinson

The parties on the U.S. Supreme Court’s business docket don’t necessarily want to be there, and the court’s grant of review may even spur the parties to settle. The Supreme Court dropped oral argument in a securities case Oct. 17 after the parties alerted the court to their settlement ( Leidos, Inc. v. Ind. Pub. Ret. Sys. , U.S., No. 16-581, removed from calendar 10/17/17 ).

The dispute in Leidos v. Indiana Public Retirements System centered on when publicly held companies can be held liable for omitting important information in communications with their shareholders.

The court was set to hear the case Nov. 6. But the parties told the court in an Oct. 6 filing that they’d reached a settlement. The court granted their request to put the case on hold while the settlement was assessed by the lower court.

Such settlements occasionally scuttle Supreme Court cases—especially in business cases, where the parties are only in the Supreme Court “because substantial money and/or important business practices are at stake,” Robert Loeb, of Orrick, Herrington & Sutcliffe LLP, Washington, told Bloomberg Law in an email. Loeb’s own Supreme Court case was settled after it was granted in 2015.

Substantial Possibility

“In a commercial case, frequently, parties are not in the Supreme Court for ideological reasons,” but rather for monetary ones, Loeb said.

Because the court turns away about 99 percent of the cases that it’s asked to consider, “the party that won below will be a lot more willing to think they are at risk” after a cert. grant, Thomas C. Goldstein, of Goldstein and Russell P.C., Bethesda, Md., told Bloomberg Law in an email. Goldstein was the opposing counsel in the Supreme Court case that Loeb settled.

The Supreme Court’s decision to hear a case “may signal a likely, or at least a substantial possibility of, a reversal,” Loeb said.

So the party that won below is “way more likely to settle,” after the Supreme Court steps in, Goldstein said.

Limiting Displeasure

Because most cases the Supreme Court agrees to hear involve a disagreement among the lower federal courts, some of the justices “might be disappointed that the settlement deprives the Court” of the chance to settle a circuit split “or clarify a thorny issue,” Loeb said.

That may have been the case when the court was twice thwarted in its attempt to decide an important Fair Housing Act issue involving what individuals must show in order to prove a violation of that act.

In two separate terms, cases posing that question were settled just prior to oral argument. The settlements were rumored to be motivated by fears that the Supreme Court would rule in favor of landowners. The Supreme Court eventually did the opposite, ruling against landowners in 2015—four years after it first agreed to decide the issue.

But in addition to disappointment over the opportunity to clarify the law, the Supreme Court’s resources are limited, and the court closely guards its docket.

Therefore, “if a settlement comes after oral argument is held, some Justices may not appreciate that they invested substantial time into a case just to have it disappear,” Loeb said.

The level of displeasure with a settling case may depend on “whether the Court thinks its processes were abused,” Goldstein said. “That’s most likely if the case is settled after oral argument,” he said.

“But as long as the parties let the Court know in a timely manner when there is serious settlement consideration that may impact the argument date,” allowing the Court to reschedule or cancel the argument, such displeasure is probably limited, Loeb said.

Wrong Business

Settlement could also be disappointing for attorneys.

Every term, Supreme Court specialists clamor to get one or more of the coveted 70 or so cases that the court agrees to hear.

But both Loeb and Goldstein said that disappointment wouldn’t inhibit a good attorney from working to settle their client’s case.

There’s no “greater conflict here than in other litigation,” Goldstein said. “In any non-contingent case, you could say that the lawyer wants to keep the case going to make money, for example.”

Lawyers “zealously represent” the interests of their clients, Loeb said. “If getting an argument for yourself is more important than getting a good result for your client, you are in the wrong business.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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