Today, the Supreme Court granted certiorari in the following cases of interest to the business community:

Clean Water Act—Judicial Review

National Association of Manufacturers v. Department of Defense, No. 16-299

The Clean Water Act confers original jurisdiction on the federal courts of appeals to hear petitions for review of a narrow range of agency actions. The courts of appeals have been divided over how broadly to read that provision. In this case, 31 states and 57 business entities challenged EPA's "waters of the United States" rule, one of the most important regulations ever promulgated under the Clean Water Act. The Supreme Court granted certiorari to determine whether the rule is subject to challenge in the courts of appeals under the Clean Water Act's judicial review provision or instead is subject to challenge in the district courts under the Administrative Procedure Act. Mayer Brown represents the petitioner, National Association of Manufacturers.

Biologics Price Competition and Innovation Act—Notice Requirement

Sandoz Inc. v. Amgen Inc., No. 15-1039

The 2009 Biologics Price Competition and Innovation Act, a component of the Affordable Care Act, created an abbreviated regulatory pathway for the FDA to license "biosimilar" products—i.e., products that are "highly similar" to approved biological products. The statute's "Notice of commercial marketing" provision requires a biosimilar applicant to provide 180 days notice to the existing seller of the biological product before it can engage in commercial marketing for the newly-approved product. The Federal Circuit held that this notice could be given only after the biosimilar product had received FDA approval, creating an additional six-month exclusivity period for incumbent sellers. The Supreme Court granted certiorari to determine whether notice given prior to receiving FDA approval can be effective to satisfy the statute's 180-day notice requirement.

National Labor Relations Act—Enforceability of Arbitration Clauses

Epic Systems Corp. v. Lewis, No. 16-285
Ernst & Young LLP v. Morris, No. 16-300
National Labor Relations Board v. Murphy Oil USA, Inc., No. 16-307

The collective bargaining provisions of the National Labor Relations Act (NLRA) give employees the right to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." In three cases that have been consolidated for review, the Supreme Court will consider whether those NLRA provisions render unenforceable arbitration agreements that require an employer and an employee to arbitrate employment-related disputes on an individual, rather than collective or class, basis, notwithstanding the Supreme Court's holding that arbitration "as envisioned by" the Federal Arbitration Act calls for individual rather than class-wide arbitration.

Fair Debt Collection Practices Act—Debt Collectors

Henson v. Santander Consumer USA, Inc., No. 16-349

The Fair Debt Collections Practices Act governs the conduct of "debt collectors," a term that includes any person who "regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." The Fourth Circuit ruled that a consumer finance company that purchased and attempted to collect defaulted debts was not a "debt collector," exacerbating an existing split over this issue in the federal courts of appeals. The Supreme Court granted certiorari to resolve whether a company that regularly attempts to collect debts it purchased after the debts had fallen into default is a "debt collector" subject to the Fair Debt Collection Practices Act.

Statutes of Repose—Availiability of American Pipe Tolling

California Public Employees' Retirement System v. ANZ Securities, Inc., No. 16-373

In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court held that "the commencement of a class action suspends the statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." This allows putative class members to pursue individual claims after a court denies class certification and the limitations period has run. Section 13 of the Securities Exchange Act establishes a three-year statute of repose, which provides that no actions may be maintained against underwriters of a security "more than three years after the security was bona fide offered to the public." The Supreme Court granted certiorari to resolve a circuit split over whether the filing of a putative class action serves, under American Pipe, to satisfy this three-year repose period with respect to the claims of putative class members.

Personal Jurisdiction—Constitutional Limits of General Jurisdiction

BNSF Railway Co. v. Tyrrell, No. 16-405

Under the Supreme Court's ruling in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), a state court may only exercise general personal jurisdiction over a defendant that is "at home" in the forum state. In a case arising under the Federal Employers' Liability Act, the Supreme Court of Montana held that Montana state courts had general jurisdiction over a defendant that was incorporated and had its principal place of business out of state. The Montana Supreme Court declined to apply the holding of Daimler, which involved overseas parties and transnational injuries, to cases involving U.S. defendants and domestic conduct. The Supreme Court has granted certiorari to clarify the scope of its decision in Daimler with respect to U.S. corporations.

In addition, the Court granted certiorari in Weaver v. Massachusetts, No. 16-240, in which Mayer Brown represents the petitioner. That case concerns the standard for harmless error where the ineffective assistance of a criminal defendant's trial counsel results in a structural defect in the trial mechanism.

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