Rex Heinke Speaks with The Recorder on Supreme Court Cases to Watch

Rex Heinke, co-head of Akin Gump’s Supreme Court and appellate practice, was featured by The Recorder in “On SCOTUS Watch with Akin Gump’s Heinke,” sharing his thoughts on the big rulings of the Supreme Court term that is about to conclude as well as on some of the issues likely to be addressed in the term beginning next fall.

 Portions of Heinke’s responses to the following questions are provided:

• How has the 2014 term changed the landscape for commercial litigation? In the intellectual property context, Commil USA v. Cisco Systems held that a defendant’s good-faith belief that a patent is invalid is not a defense to a claim of inducing infringement of that patent. The court reasoned that this defense would undermine the presumption of patent validity and circumvent the requirement that a defendant must show by clear and convincing evidence that a patent is invalid.
  Integrity Staffing Solutions v. Busk is relevant to labor and employment litigators. In a 9-0 decision authored by Justice Thomas, the Supreme Court held that time spent by warehouse workers undergoing security screenings is not compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. The Portal-to-Portal Act exempted employers from liability for claims dealing with activities that are preliminary or postliminary to the principal activities that an employee is employed to perform. The screenings in this case were not a principal activity and were not integral to the employees’ duties.
• What will you be looking for when decisions come down in Obergefell v. Hodges, the same-sex marriage case, and King v. Burwell, dealing with tax credits under the Affordable Care Act? The court’s refusal to stay the decisions that have overturned laws preventing same-sex marriages strongly indicates that it will overturn such laws. The question in King v. Burwell is whether the IRS may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under the Patient Protection and Affordable Care Act (“Obamacare”). The Act provides that individuals can purchase competitively-priced health insurance on American Health Benefit Exchanges that may be run by either the states or the federal government. It also authorizes a federal tax-credit subsidy for low and middle-income individuals who purchase insurance on the Exchanges. Plaintiffs argued that the IRS exceeded its statutory authority, its regulation is arbitrary and capricious, and is contrary to the law in violation of the Administrative Procedures Act. It seems unlikely that the court will strike down this Act, having previously upheld it in the face of other challenges.
• What are some of the cases to watch next term? First, Tyson Foods v. Bouaphakeo is particularly relevant to class action litigators. The Supreme Court granted certiorari to decide (1) whether differences among individual class members may be ignored, and a class certified, when plaintiffs use statistical techniques that presume that all class members are identical; and (2) whether a class may be certified that contains hundreds of members who were not injured and have no legal right to damages. … Tyson is likely to reinforce the demanding standards for obtaining class certification, making it more difficult for class actions to be certified.
  Second, in Spokeo v. Robins, the Supreme Court granted certiorari to decide whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute (so-called “statutory injury”). Spokeo is likely to limit the viability of class action lawsuits claiming millions of dollars in statutory damages for technical violations of federal privacy, data breach and consumer protection laws.
  Third, the Supreme Court agreed to hear Campbell-Ewald v. Gomez, setting the stage for a ruling on whether a case is mooted by an offer of complete relief to a named class representative.