Legal News

Sotomayor and Business: ?No Reason . . . to be Concerned?

By Nathan Koppel

Can you handle one more post on Judge Sotomayor? Yeah? Thanks — we knew you’d be there for us. The latest is on Judge Sotomayor and business, and it goes something like this:

While Judge Sotomayor will not get confused anytime soon with John Roberts, she has ruled in favor of corporate defendants in some key cases, say lawyers who have practiced before her.
The judge, for example, has sided with defendants in cases involving the standards that govern when cases can be brought as a class actions and the extent to which plaintiffs' claims can be preempted by more defense-friendly federal or international laws.

"There is no reason for the business community to be concerned," says Lauren Rosenblum Goldman, a partner at Mayer Brown LLP. The judge has "ruled in favor of preemption about half of the times" that the issue has been presented to her, she says.

In King v American Airlines Inc., judge Sotomayor ruled against an African American couple who claimed they were bumped from a flight because of their race. The judge concluded their case was preempted by international law that governs aircraft matters. "We urged a different interpretation, but her decision was in conformity with what other courts were doing," says Robert Isseks, a New York attorney who represented the losing plaintiffs. "We were paddling upstream."

In 2006, the judge was part of a Second Circuit panel that ruled that investors could not proceed with a class action that alleged that Wall Street banks fraudulently priced initial public offerings. The ruling negated settlements that would have yielded investors more than $1 billion dollars. "That ruling demonstrated that in securities litigation, she is in the judicial mainstream," says Barry Ostrager, a partner at Simpson Thacher LLP who represented J.P. Morgan Securities Inc. in the matter.

Still, judge Sotomayor has issued rulings that are likely to give conservatives pause. In 2007, she was on a panel that upheld a punitive damage award of $1 billion against a Turkish family. "A billion-dollar award is one that should raise judicial eyebrows," Rosenblum Goldman says. An attorney who represented the defendants declined to comment.

The judge has also repeatedly sided with employees who claimed they were the victims of discrimination or a hostile work environment. In 2000, she ruled in favor of Yvette Cruz, a Hispanic woman who claimed she had been subjected to lewd remarks and sexual harassment by a co-worker at Coach Stores Inc. A lower court dismissed Cruz's hostile-work-environment claim on the grounds that she had cited only "vague and unspecified" instances of inappropriate sexual behavior. But Judge Sotomayor overturned that ruling. "Cruz might have stated her claim of hostile work environment harassment more artfully," the judge wrote. But, she concluded, "the essential elements of the [hostile-work] charge do appear in the complaint." Counsel to Coach Stores did not return a call for comment.

But even with workplace discrimination claims, Judge Sotomayor is far from a reliable vote for employees. In 1999, for example, she ruled against a black nurse, who claimed she had been fired from Staten Island University Hospital in New York due her race and age and the fact that she had suffered a debilitating injury. Judge Sotomayor ruled that the plaintiff, Wendy Norville, could move ahead on her disability claim, but tossed out the race and age claims. "There was ample evidence that the hospital had accommodated white nurses with similar disabilities," says Glenn Greenwald, who represented Norville. "In the race and age-discrimination claims, she rather coldly dismissed what I thought were good claims," says Greenwald, who is now a columnist for Salon.com.

Photo: Getty Images

Full post as published by Law Blog - WSJ.com on May 26, 2009 (boomark / email).