[JURIST] The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in five cases. In Lawson v. FMR LLC [docket; cert. petition, PDF] the court will consider whether an employee of a privately-held contractor or
subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act [18 USC § 1514A]. Section 1514A forbids a publicly traded company, a mutual fund or “any … contractor [or] subcontractor … of such company [to] … discriminate against an employee in the terms and conditions of employment because of” certain protected activity. The US Court of Appeals for the First Circuit held [opinion] that under section 1514A such contractors and subcontractors, if privately-held, may retaliate against their own employees, and are prohibited only from retaliating against employees of the public companies with which they work.

In Northwest, Inc. v. Ginsberg [docket; cert. petition, PDF] the court will decide on the scope of preemption under the Airline Deregulation Act of 1978 (ADA) [49 USC § 41713(b)]. Section 41713(b) provides that states “may not enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier.” Respondent Ginsberg participated in Northwest Airlines’ frequent flyer program and sued when he was removed from the program. Although the district court dismissed Ginsberg’s implied covenant of good faith claim as preempted by the ADA, the US Court of Appeals for the Ninth Circuit reversed [opinion] as to the implied covenant claim, finding such claims categorically unrelated to a price, route or service.

In Town of Greece v. Galloway [docket; cert. petition, PDF] the court will consider, “whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.” In its 1983 decision in Marsh v. Chambers [opinion] the Supreme Court upheld the practice of starting a legislative session with a prayer unless the selection of prayer-givers “stem[s] from an impermissible motive” or “the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” In this case, the town of Greece, New York, allowed volunteer private citizens to open town board meetings with a prayer. This US Court of Appeals for the Second Circuit struck down [opinion; JURIST report] the practice, applying the “endorsement” test from Lemon v. Kurtzman [opinion].

In Medtronic, Inc. v. Boston Scientific Corp. [docket; cert. petition, PDF] the court will determine whether, in a declaratory judgment action brought by a patent licensee, the licensee has the burden to prove that its products do not infringe the patent, or whether the patentee must prove infringement. The Supreme Court ruled in 2007 in MedImmune, Inc. v. Genentech, Inc. [opinion; JURIST report] that a patent licensee that believes that its products do not infringe the patent and accordingly are not subject to royalty payments is “not required … to break or terminate its … license agreement before seeking a declaratory judgment in federal court that the underlying patent is … not infringed.” In this case the US Court of Appeals for the Federal Circuit held [opinion] that, “in the limited circumstance when an infringement counterclaim by a patentee is foreclosed by the continued existence of a license, a licensee seeking a declaratory judgment of noninfringement and of no consequent liability under the license bears the burden of persuasion.”

Finally, in Fernandez v. California [docket; cert. petition, PDF] the court will decide “whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.” The Court of Appeals of California concluded [opinion] that Supreme Court precedent established in 2006 in Georgia v. Randolph [opinion; JURIST report] “does not require exclusion of the evidence obtained in the warrantless search of defendant’s home.”