Sotomayor would be hard to predict in business cases

When it comes to business lawsuits, Supreme Court nominee Sonia Sotomayor is hard to pigeonhole. Sotomayor's opponents paint her as an activist judge with a liberal bent, but many legal experts say he

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buy this photo Supreme Court nominee Sonia Sotomayor testifies on Capitol Hill in Washington, Thursday, July 16, 2009, before the Senate Judiciary Committee. (AP Photo/Charles Dharapak)

Employers vs. labor? Airlines vs. passengers? Investors vs. companies?

When it comes to business lawsuits, Supreme Court nominee Sonia Sotomayor is hard to pigeonhole. Sotomayor's opponents paint her as an activist judge with a liberal bent, but many legal experts say her record shows she is far from an ideologue on business issues.

In 1995, as a U.S. district judge, Sotomayor favored Major League Baseball players over owners. Nine years later, then on an appeals court, she supported National Football League management in a dispute with a college football star.

After the 1996 crash of TWA Flight 800 just off New York's Long Island, the appeals court on which she served said the tragedy took place within U.S. territorial waters, enabling victims' families to sue the airline maker Boeing Co. and a parts manufacturer for damages.

But Sotomayor sided with the airline, saying the crash took place in international waters, which would have limited the damages. The decision "is clearly a legislative policy choice, which should not be made by the courts," she wrote.

Stanford law professor Joseph Grundfest, a former Securities and Exchange commissioner, recalled two securities cases Sotomayor handled in which investors had brought suit. She sided with the plaintiff in a class-action lawsuit against Merrill Lynch. But in the other case, he said, she rejected millions of investors seeking money lost during the dot-com bust.

"She cannot be called pro-business or pro-plaintiff," he said. "She doesn't come into the case with any preconceived notions."

If confirmed, Sotomayor could bring a potential swing vote in business cases to the Supreme Court, he predicted.

To be sure, some mainstream business groups are wary.

Michael Greve, a senior fellow at the conservative American Enterprise Institute, said Sotomayor's approach could not be called pro-business.

"If I was a business or a corporation, would I want to come up against her? No," Greve said. "But she is not somebody who has animosity toward business."

He cited a 2001 decision in which Sotomayor allowed retailers to bring a class-action lawsuit against Visa Inc. and MasterCard Inc. for the fees the card companies charged on its debit and credit cards.

The decision led to a massive class-action lawsuit in which Visa and MasterCard paid out $3 billion. Greve said the case opened the door for more class-action lawsuits. He said he didn't want to see similar decisions from the Supreme Court.

The U.S. Chamber of Commerce has yet to take a stance on Sotomayor's nomination, a group spokesman said.

Sotomayor's professional life as a lawyer, judge and public servant has been tied inextricably to business.

As a lawyer, she specialized in intellectual-property law and represented companies such as luxury handbag retailer Fendi and Italian sports car manufacturer Ferrari. She served on the State of New York Mortgage Agency board.

Sotomayor, 55, addressed the importance of law in business transactions during Wednesday's nomination hearings. "In business, the predictability of law may be the most necessary," she said.

She currently sits on the bench of the U.S. Court of Appeals for the 2nd Circuit in New York, which is flush with business cases.

Despite her record handling a long list of business matters as a federal judge, some legal experts said they would be hard-pressed to find ideological patterns in Sotomayor's decisions.

"It's really hard to paint her stance on business with broad stokes," said Thomas H. Dupree Jr., an appellate lawyer who has argued five cases in front of Sotomayor in the 2nd Circuit.

Sotomayor was nominated to replace retired Justice David Souter, who in many cases did not have a friendly ear for business, said Stephen Bainbridge, a law professor at the University of California, Los Angeles. "Business will find her to be an available vote, where Souter was not so available," he said.

Bainbridge went on to say that Sotomayor follows the law where it leads her and "does not let a personal policy agenda affect her decisions."

Bill Yeomans, legal director of the Alliance for Justice, said he saw "no overriding tendencies" in her judgments. The liberal center issued a report on Sotomayor's business record that traced her work as a lawyer and judge.

"Throughout her career, there is a very balanced and fact-intensive approach," Yeomans said.

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