Supreme Court Nominee Sotomayor Has Record in Business Cases

May 27, 2009

Sonia Sotomayor, nominated by President Barack Obama for the U.S. Supreme Court, has a lengthy record of rulings in business cases as a federal judge in New York.

But legal experts said Sotomayor does not appear to be either particularly liberal or conservative on business issues -- resulting in a patchwork of decisions based more on the merits and facts of the cases than an ideological approach to the law.

"If you look through the decisions she has written while on the Second Circuit (U.S. Court of Appeals), there seems to be a surprisingly small number of cases that involve securities laws," said Roger Kirby, a partner at class-action law firm Kirby McInerney LLP in New York.

Experts say it can be difficult to predict how a federal appeals court judge like Sotomayor will rule on business cases as a member of the Supreme Court.

Following are some of Sotomayor's more notable business-related decisions. Four of the rulings were later overturned by the Supreme Court.

CONCERN FOR INVESTOR RIGHTS ADVOCATES

One case Kirby cited as potentially of concern for investor rights advocates is a 2007 decision in an investor lawsuit accusing the New York Stock Exchange of violating securities laws by allowing improper trading by floor traders.

Sotomayor, writing for a three-judge panel of the appeals court, partially revived the case, which was brought by the California Public Employees' Retirement System and another plaintiff.

But the court also said the stock exchange had absolute immunity from the specialists' activities because of its self-regulatory role in the securities market -- a position which could make it harder to file such lawsuits in future.

SECURITIES FRAUD RULING OVERTURNED BY SUPREME COURT

Sotomayor wrote the majority decision in 2005 in a securities fraud case involving Merrill Lynch that later was overturned by the Supreme Court in a victory for corporate defendants.

The purported securities fraud class-action case had been brought by a former Merrill Lynch broker who accused the investment firm of fraudulently manipulating stock prices.

Sotomayor reinstated the case, after it had been dismissed by a lower court, ruling that it was not barred by a federal law which makes it harder to bring such lawsuits.

The Supreme Court in 2006 unanimously disagreed with her ruling and held such suits were prohibited by federal law.

BASEBALL STRIKE

Sotomayor made headlines as a trial judge in 1995 with an order preventing Major League Baseball owners from using replacement players, ending a nearly year-long strike by unionized players.

She drew praise from players by ruling that the owners could not unilaterally discard the two-decade-old system of free agency.

Sotomayor ruled the owners were trying to subvert the labor system and that the strike had placed the entire concept of collective bargaining on trial. She granted an injunction sought by the National Labor Relations Board.

DISCRIMINATION CASES

In cases involving race, sex, age and disability discrimination, Sotomayor has more often sided with the plaintiffs than the employer, according to analysis of her record as part of a project directed by Tom Goldstein, a lawyer who argues before the Supreme Court and who created the SCOTUSblog Web site.

ENVIRONMENTAL LAW INVOLVING POWER PLANTS

Sotomayor wrote a major environmental law ruling that the Bush administration Environmental Protection Agency could not weigh the costs of introducing technology used in power plant cooling structures against the benefits of protecting aquatic life.

Her ruling was reversed by the Supreme Court on April 1 by a 6-3 vote in a defeat for environmentalists and a victory for the EPA and energy companies that operate power plants.

WINE SHIPMENTS

Sotomayor was part of a three-judge panel that upheld New York's law barring direct shipments of out-of-state wine to in-state consumers.

The Supreme Court in 2005 struck down such laws, arguing they unconstitutionally limited interstate commerce.

COPYRIGHT CASE

Freelance journalists had sued the New York Times Company for copyright infringement because the Times included in an electronic database the work of the authors it had published.

Sotomayor as a trial judge ruled that the publisher had the right to license the work of the freelancers, in a decision that limited the copyright rights of the authors.

Her decision was reversed on appeal, and the Supreme Court in 2001 upheld the reversal.

(Reporting by James Vicini in Washington and Martha Graybow in New York; editing by Cynthia Osterman)