S&C Supreme Court Business Review – October Term 2021

Supreme Court Business Review Podcast Series – Part 1 

Introduction, NFIB v. OSHA and West Virginia v. EPA

In this episode of S&C Critical Insights, Judd Littleton, Julia Malkina and Morgan Ratner introduce the third annual podcast series accompanying S&C’s Supreme Court Business Review. 

Judd, Julia and Morgan preview upcoming episodes and discuss two closely watched administrative law decisions from this Term. The first is National Federation of Independent Business v. OSHA, in which the Court considered whether the Occupational Safety and Health Administration had the authority to implement a national COVID-19 vaccine mandate. The second is West Virginia v. EPA, in which the Court considered whether the Environmental Protection Agency had the authority to issue the Clean Power Plan, which established carbon dioxide emissions limits for coal power plants. They also briefly touch on the Court’s decision in American Hospital Association v. Becerra, in which the Court declined to address the continued viability of the Chevron doctrine in a case addressing how the Department of Health and Human Services sets drug reimbursement rates for hospitals treating Medicare patients.

Supreme Court Business Review Podcast Series – Part 2

Cassirer v. Thyssen-Bornemisza Collection Foundation

In the second episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by Sharon Cohen Levin, former head of the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney’s Office for the Southern District of New York, to discuss the Supreme Court’s recent decision in Cassirer v. Thyssen-Bornemisza Collection Foundation.

The decision addresses the correct choice-of-law rule in a dispute between the family of a German Jewish woman who surrendered a painting to the Nazi regime in 1939 to obtain an exit visa and the Spanish museum that currently displays it. 

Sharon brings unique insight to this area of law and explains the legal landscape for heirs seeking restitution of property looted as part of severe violations of international law. She also discusses the implications of the Court’s decision for the Foreign Sovereign Immunities Act more generally.

Supreme Court Business Review Podcast Series – Part 3 

ZF Automotive v. Luxshare, Badgerow v. Walters and Morgan v. Sundance

In the third episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by partner Andrew Finn, the coordinator of S&C’s International Arbitration and Global Dispute Resolution Group, to discuss three arbitration cases that the Supreme Court decided last Term and the key takeaways from those decisions for businesses. From a broader perspective, Andrew explains how these three cases reflect that, unlike in the past when the Supreme Court frequently was required to grant certiorari to reverse lower court decisions hostile to arbitration, the Court now appears to be at a point where it is approaching arbitration cases in the same way it decides any other contractual questions.

In ZF Automotive v. Luxshare, the Court resolved two cases that presented the question of whether discovery under Section 1782, which allows federal district courts to grant discovery for use in certain proceedings in foreign or international tribunals, applies to proceedings before international arbitral tribunals. One case was before a private arbitration institution and the other was heard by an ad hoc arbitration panel convened pursuant to a bilateral investment treaty between Russia and Lithuania. The Supreme Court unanimously held that Section 1782 only applies to proceedings by governmental or intergovernmental bodies and did not authorize domestic discovery for use in either of the arbitration proceedings under review. Andrew explained that the decision eliminates the use of the statute for discovery in private international arbitration and is likely to narrow the use in some investor-state arbitrations, although it remains to be seen how lower courts will apply this decision to investment treaties with different terms.

In Badgerow v. Walters, the Court explained the inquiry federal courts should conduct when determining whether they have jurisdiction over requests to confirm or vacate a domestic arbitration award under the Federal Arbitration Act. In a prior decision, the Court had instructed courts considering a petition to compel arbitration to “look through” the petition to the underlying dispute between the parties to determine whether the federal court would have jurisdiction over that underlying dispute.  But in Badgerow, the Court held that approach does not apply to a motion to confirm or vacate an arbitral award.  Instead, the federal court must determine whether the motion itself establishes a basis for subject matter jurisdiction. Andrew explained that this likely means fewer domestic arbitral awards will now be enforceable in federal court and many parties will have to rely on state courts to apply the FAA unless diversity jurisdiction exists. He noted that this decision should not impact most international arbitral awards, which can be enforced or vacated under a separate section of the FAA.

Lastly, in Morgan v. Sundance, the Court addressed the circumstances in which a party waives its right to compel arbitration. The plaintiff, who had signed an arbitration agreement when she was hired, filed a nationwide collective action in federal court seeking to recover wages and overtime pay. Sundance actively litigated the case for eight months in federal court, then changed course and moved to compel arbitration under the FAA.  Applying a heightened waiver rule some courts had developed in the arbitration context, the Eighth Circuit held that Sundance had not waived its right to compel arbitration because the plaintiff did not show she had been prejudiced by Sundance’s delay in seeking to compel arbitration.  In a unanimous decision, the Supreme Court rejected this heightened prejudice requirement applicable only to arbitration agreements, holding that courts should apply the same waiver rules to arbitration provisions as they do in other contexts.  Andrew noted that the decision may result in federal courts being more inclined to find that a litigant has waived the contractual right to arbitrate, but noted that several other issues would need to be resolved before actually applying waiver in this or any other case. In any event, similarly situated parties should think carefully before engaging in any litigation in court rather than immediately seeking to compel arbitration.  

Supreme Court Business Review Podcast Series – Part 4 

Viking River Cruises v. Moriana and Southwest Airlines Co. v. Saxon

In the fourth episode of S&C’s Supreme Court Business Review series, hosts Judd Littleton, Julia Malkina and Morgan Ratner are joined by partners Diane McGimsey and Annie Ostrager to discuss two employment arbitration cases from the past term and their implications for employers.

In Viking River Cruises v. Moriana, the Supreme Court held that the Federal Arbitration Act preempts a California Supreme Court ruling insofar as it prohibits bringing certain state law claims to arbitration and reaffirmed that no party can be made to arbitrate a claim without expressly agreeing to do so. In Southwest Airlines Co. v. Saxon, the Court held that certain airline workers, baggage handlers and some of their supervisors, qualify for an exemption under Section 1 of the FAA for workers involved in interstate commerce or the transportation of goods or people.

S&C’s Supreme Court and Appellate Practice

Led by former Acting Solicitor General of the United States Jeffrey Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 17 former U.S. Supreme Court clerks and more than 80 former federal circuit court clerks, S&C’s Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.

Sullivan & Cromwell’s annual Supreme Court Business Review analyzes key business cases from the Supreme Court’s October 2021 Term, including ZF Automotive US, Inc. v. Luxshare, Ltd., West Virginia v. EPA,  and National Federation of Independent Business v. OSHA. Lawyers in our Supreme Court and Appellate practice succinctly explain the critical takeaways from these decisions in plain language.

These decisions cover a wide range of issues including arbitration, ERISA, federal tax law, copyright, and the scope of federal agencies’ regulatory authority.

Download Supreme Court Business Review – October Term 2021 

Meet Our Editors

 is a partner in S&C’s Litigation Group and co-head of the Firm’s Supreme Court and Appellate Practice. His diverse practice focuses on Supreme Court and appellate work, complex commercial litigation, and criminal defense and investigations. Prior to joining the Firm, Judd served as a trial attorney in the Civil Division of the U.S. Department of Justice, where he litigated cases involving a wide range of constitutional and statutory issues and received the Attorney General’s Distinguished Service Award, the Department’s second-highest award for employee performance. Judd also previously served as a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice, where he worked on numerous cases before the U.S. Supreme Court and federal courts of appeals. He clerked for Chief Justice John G. Roberts, Jr. of the U.S. Supreme Court and for Judge A. Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit. Judd is a member of the Edward Coke Appellate Inn of Court and the Supreme Court Historical Society. He was recognized by The National Law Journal as one of its 2019 D.C. Rising Stars.

Contact Judd

is a partner in S&C’s Litigation Group and Supreme Court and Appellate Practice, as well as co-lead of the Firm’s Securities Litigation Practice. She joined the Firm in 2015 after serving as a law clerk to Justices Sandra Day O’Connor (Ret.) and Stephen G. Breyer of the U.S. Supreme Court, a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice, and a law clerk to then-Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit. Her practice comprises appellate court litigation, trial court litigation, and regulatory proceedings in a number of areas, including securities, commodities, and criminal law. She was named a 2022 Rising Star by Law360 and a 2020 Rising Star by the New York Law Journal for her representations in precedent-setting cases across those areas. Julia also represents clients pro bono in criminal matters both at the trial court level and on appeal. She is a member of S&C’s Women’s Initiative Committee, which seeks to recruit, retain, and advance the Firm’s women lawyers.

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is special counsel in S&C’s Litigation Group and is a member of the Firm’s Supreme Court and Appellate Practice. Prior to joining the Firm, Morgan served in the Office of the Solicitor General at the U.S. Department of Justice. During her tenure there, she argued eight Supreme Court cases involving areas of federal law such as securities regulation, bankruptcy, employment, intellectual property, criminal law, and elections law. While at the Solicitor General’s Office, Morgan also filed over 150 Supreme Court briefs at the merits and certiorari stages and received a John Marshall Award, the Department of Justice’s highest award offered to attorneys. Morgan clerked for Chief Justice John G. Roberts, Jr. of the U.S. Supreme Court and then-Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit. She is a member of the Edward Coke Appellate Inn of Court and is a volunteer with Street Law, Inc. She was named a 2022 Law360 Rising Star in the Appellate field.

Contact Morgan

S&C’s Supreme Court and Appellate Practice

Led by former Acting Solicitor General of the United States Jeffrey Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 17 former U.S. Supreme Court clerks and more than 80 former federal circuit court clerks, S&C’s Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.

A distinctive feature of our practice is that S&C’s appellate lawyers have handled every phase of litigation. They have tried and arbitrated cases, conducted internal investigations, and represented clients in governmental investigations. This broad experience gives them a valuable perspective from which to develop more effective arguments based on their experience in those other contexts, and enables them to work collaboratively with trial teams to frame those arguments persuasively at every stage of a case. Clients appreciate that this structure allows the same teams to handle motions, trials, and appeals. Even in matters that S&C has not handled in the initial stages, clients also often seek out our team’s tailored appellate expertise, skilled advocacy, and strategic advice.

Our appellate experience covers virtually all of our litigation practices, including antitrust, bankruptcy, criminal defense, intellectual property, labor and employment, M&A litigation, products liability and securities litigation.

For additional discussion, including presentations for CLE credit, please contact Judd Littleton, Julia Malkina or Morgan Ratner. 

S&C’s Litigation Practice