Wednesday, March 23, 2011

Something's Happenin' Here

Say what?

The US Supreme Court issued decisions against business interests?

Pretty hard to believe, but apparently so.

The decisions continue a recent trend in which the high court has confounded its critics by siding with workers and plaintiffs in business cases. The Chamber of Commerce has been on the winning side in only one case decided this year, while suffering five losses, including in the stock fraud case decided today.

By a 9-0 vote, the justices said a drug maker can be sued for failing to disclose to investors the scattered medical reports that suggested a serious problem with a drug. The company said it should be shielded from lawsuits unless there was strong medical evidence or statistical proof of a serious problem.

In the workplace case, a Wisconsin plastic company had maintained that it could not be sued for firing Kevin Kasten, an employee who made an oral instead of a written complaint at work about the time clocks. Federal laws protect employees from retaliation for having "filed any complaint" alleging a violation.

Well, OK: I kind of get the first case. Investors are a key component of corporations. Rip them off and this Supreme Court is likely to get testy. And this case was a particularly nasty one. The drug maker was aware that its cold-symptom product was causing problems for consumers, enough so that an FDA review was inevitable, yet it hid that information from a wave of investors.

The second case, however, pits the little guy against the employer. With this Supreme Court, I would have expected the opposite result. So did Justices Scalia and Thomas, who voted that the employer is entitled to a well-composed written complaint about time clock vagaries, and that if they slapped an employee around for just making a verbal complaint, well, too bad. Surprisingly, the majority of the justices felt the retaliation was unlawful.

While I am pleasantly surprised by both decisions, even I am not naive enough to believe that the court this term is making a left-ward tilt. These cases were too clear cut for all but the dynamic duo. It will soon be back to business as usual.

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