Big business shows up in final days of arguments at Supreme Court

By John Fritze, CNN

(CNN) — Big businesses are lining up at the Supreme Court as the justices hear the final arguments of the term, pressing the conservative majority to shield industries from multimillion-dollar jury verdicts, limit the marketing of generic drugs and neuter the government’s ability to issue fines.

Verizon, Monsanto and Cisco Systems are among the companies that have teed up major appeals at the high court this month.

Though the cases deal with vastly different legal issues, taken together, they could have widespread implications for the economy, affecting an expansive range of products from pacemakers to pet food and the ability of consumers and government regulators to hold companies accountable.

Among the most significant is an appeal from Monsanto, the agricultural giant that is fending off lawsuits from thousands of people who say the pesticide Roundup caused their cancer. The company is appealing a verdict that sided with a Missouri man, known to his neighbors as “spray guy,” who got cancer after regularly using the product.

“A ruling for Monsanto would reach far beyond pesticides, stripping states of their authority to protect their own citizens and closing the courthouse doors on people injured by dangerous products across industries,” Matthew Wessler, an attorney at Gupta Wessler who has argued several cases before the high court, told CNN. “This is not what Congress intended, and it would fundamentally undermine the civil justice system’s role in protecting public safety.”

Monsanto was purchased in 2018 by the German company Bayer.

In coming days, Cisco Systems will argue that the justices should limit the scope of a law that is intended to hold companies accountable for human rights abuses overseas. Last week, Verizon and AT&T challenged multimillion-dollar penalties the Federal Communications Commission levied against them for what the agency said was mishandling of customer data.

And in what is likely to be the final case argued before the Supreme Court this term, the maker of a generic drug is battling with the patent holder of Vascepa, a medication used to reduce the risk of heart attacks. The dispute deals with whether Hikma Pharmaceuticals, a London-based company with US headquarters in New Jersey, encouraged infringement of that patent in how it described its generic version in press releases and website posts.

That case has “the potential to deter drug manufacturers from selling generic drugs, which lower costs for consumers,” said Adina Rosenbaum, an attorney at Public Citizen Litigation Group, which filed friend-of-the-court briefs in the pharma and Monsanto cases.

Business-friendly court?

Business interests have had a mixed record at the Supreme Court in the first few months of opinions this year.

In its most substantial ruling of the year, a 6-3 majority in February tossed out President Donald Trump’s sweeping emergency tariffs — a huge win for importers and other companies.

Last week, a unanimous court let Chevron fight an order that it pay $740 million to clean up environmental damage to Louisiana’s coastline caused in part by its work for the government during World War II.

But the justices have sided against companies in other recent rulings, including a pair of decisions handed down Wednesday. One of those allowed an Army specialist who was severely injured by a suicide bomber in Afghanistan to sue a military contractor who had vetted and supervised the attacker before the bombing. The other sided with Michigan officials in a long-running dispute with Toronto-based Enbridge Energy, over a pipeline that runs under the Straits of Mackinac.

Overall, the court under Chief Justice John Roberts has backed the position embraced by the US Chamber of Commerce in nearly 70% of its cases, according to an analysis by the Constitutional Accountability Center, a liberal group that closely tracks the Supreme Court’s work.

“The stakes are high this term, with cases implicating access to courts, human rights, and the future of the administrative state,” said the group’s chief counsel, Brianne Gorod. “With many decisions still outstanding, it’s far too early to know what will happen in all of these cases, but if the past is any guide, big business will likely continue to win at the expense of everyday Americans.”

In a fiery dissent last year, Justice Ketanji Brown Jackson, a member of the court’s liberal bloc, wrote that the court’s decision to revive a lawsuit from fuel producers challenging California’s vehicle emission rules, “invites questions about inconsistent decisionmaking and whether this court is holding business litigants to the same standards as everyone else.”

Writing for a 7-2 majority, Justice Brett Kavanaugh shot back that a review of the court’s precedents “disproves that suggestion.”

‘Spray guy’

For decades, John Durnell would spend hours every week spraying Roundup in the parks in his St. Louis neighborhood. He didn’t wear protective equipment because, he said, he didn’t think he needed to.

Years later, after Durnell was diagnosed with non-Hodgkin lymphoma, he sued Monsanto, claiming his exposure to the pesticide was to blame. A jury awarded him $1.25 million.

The Environmental Protection Agency under both Democratic and Republican administrations has repeatedly concluded that the active ingredient in Roundup, glyphosate, does not cause cancer and it has declined to require cancer warnings on the product’s labeling.

But in 2015, the International Agency for Research on Cancer classified glyphosate as an agent that is “probably carcinogenic to humans.” That spurred a flood of lawsuits against the company. Durnell is one of more than 100,000 people who have sued Monsanto.

The issue for the Supreme Court, which will hear arguments in Monsanto’s appeal on Monday, involves Durnell’s allegation that the company violated Missouri law by failing to warn customers about the potential risks of the product.

“Though Monsanto protests that its product is safe, the jury found that Roundup increases the risk of cancer, caused Durnell to develop cancer, and never warned Durnell of this risk,” Durnell’s attorneys told the court.

Monsanto’s lawyers counter that a 1972 law, the Federal Insecticide, Fungicide, and Rodenticide Act, preempts state labeling requirements. The whole point of that law, the company has argued, was to bar individual states from imposing a patchwork of labeling requirements on pesticides.

The company has removed glyphosate from the consumer version of its product. But glyphosate remains the central ingredient in industrial versions widely used by farmers.

“Once EPA makes that judgment, the label is the law,” Monsanto told the court. “It cannot be second guessed by lay juries applying the law of 50 states.”

Business groups, including the Chamber of Commerce, say that if the Supreme Court sides with Durnell it would open other industries that are subject to similar federal requirements to lawsuits. That potentially includes medical devices, cosmetics, pool products and even pet food subject to at least some federal labeling regulations.

Without a course correction, the Chamber of Commerce warned the justices, “manufacturers will routinely face potentially crushing liability” from lawsuits.

“The stakes of this case, and others like it, are enormous,” the group said.

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