Summary
While much has been written about Judge Sotomayor's statements on empathy and race, surprisingly little attention has been paid to her record on issues that directly affect business. On issues including class certification, intellectual property, and preemption. the judge's rulings suggest that business may have a potential ally.
Analysis
On balance, Judge Sotomayor's rulings on a number of issues are in business' favor.
1. Class certification. Sotomayor was part of the three judge panel in In re IPO Securities Litigation decision (2nd Cir. 2006), where the Second Circuit held that the District Court must resolve factual disputes in deciding class certification motions, and must issue findings as to each Rule 23 requirement for certification. The Court rejected the District Court's standard of "some showing" as insufficient. The Court vacated and remanded the lower court's granting of class certification in six related cases. This ruling, by expressly allowing judges to weigh evidence as to threshold issues, raised the bar for plaintiffs to obtain class certification. With this ruling, the Second Circuit moved toward a rigorous analysis standard. Plaintiffs' attorneys recognize the Second Circuit as one of the toughest in which to obtain certification.
2. Intellectual property. Earlier in her career, Sotomayor was an intellectual property lawyer in private practice at Pavia & Harcourt. She represented Fendi in trademark suits against manufacturers and sellers of counterfeit items, even going into the field with police to seize counterfeit goods. As a judge, she has written about 75 copyright decisions. Several commentators have stated that Sotomayor is in the middle or right of the spectrum on copyright issues, often favoring copyright holders. See, e.g., Castle Rock Entertainment v. Carol Publishing, 150 F.3d 132 (2d Cir. 1998)
3. Employment discrimination. While Sotomayor often sides with plaintiffs in employment discrimination cases, employers can find solace in the judge's willingness to deny claims in some instances. See, e.g., Cruz v. Coach Stores, 202 F.3d 560 (2nd Cir. 2000) (allowing employee's disability claim to proceed, but dismissing race and age discrimination claims).
4. Preemption. Sotomayor has ruled in favor of preemption at least 5 times. See, e.g., King v. American Airlines, 284 F.3d 352 (2nd Cir. 2002).
Although Judge Sotomayor is on the left politically, she is not a reliable vote for plaintiffs and employees.
This author consults with leading institutions through GLG
Analyses are solely the work of the authors and have not been edited or endorsed by GLG.
