Published in Litigation, Volume 44, Number 2, Winter 2018. © 2018 by the American Bar Association.

By David C. Frederick and Brendan J. Crimmins

The authors are members of the Washington, D.C., law firm of Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. Although one or both of us served as counsel for parties in many of the cases discussed in this article, the views expressed here are our own and do not necessarily reflect the opinions of any of our current or former clients, or our law firm.

Commentators have vigorously debated the accuracy of labeling the Roberts Court as “pro-business.” In many respects, that label is accurate, but in some important cases involving consumer rights, the Court has not bent reflexively toward pro-business positions. For many years, we have represented consumers and investors—among other types of clients—in cases before the Supreme Court. We have seen a number of recurring themes in Supreme Court cases pitting individual plaintiffs against business interests. Those themes can be illustrated through a discussion of recent Supreme Court cases involving preemption of state tort law, as well as Supreme Court cases involving securities fraud and breach of fiduciary duty.

Our primary aim in this article is to focus on some of the strategic themes and tactics from cases in which consumers and investors have prevailed in the Supreme Court. But we first note a fundamental point about Supreme Court advocacy: the importance of first principles. We are not breaking new ground in remarking that counsel representing any client—plaintiff or defendant—in the Supreme Court must focus on first principles. What do we mean by “first principles”? We mean that, when the case presents a question involving the meaning of a federal statute—as most Supreme Court cases do—counsel must focus intensively on the text and structure of the statute and employ all of the traditional tools of statutory interpretation, including a careful examination of the common-law background against which Congress enacted the law. Circuit precedent, so much a part of advocacy in the lower courts, matters little, if at all, once a case reaches the Supreme Court. With that overarching point in mind (and we will return to it), we turn to the lessons that can be learned from preemption cases.

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