Fall term preview

The spring 2011 term of the Supreme Court included several major rulings that limited consumer rights. The grants and denials of certiorari indicate that consumer rights will continue to be impacted when the Court begins oral arguments in October.

Likely building on the Court's recent decision in Brown v. Entertainment Merchants Assn., in which the Court struck down a California law that outlawed sale of violent video games directly to minors, the Court will review in Federal Communications Commission v. Fox Television Stations whether the current indecency enforcement regime that limits profanity and nudity on television during times when children are most likely to watch violates the First or Fifth Amendment to the Constitution.

In Mims v. Arrow Financial Services the Court will decided whether federal courts have jurisdiction over private causes of action under the Telephone Consumer Protection Act. The statute, which created the national "do not call list," contains an unusual provision that states such cases should generally be brought in state court.

Another case will impact consumer rights by not being heard. The Court has denied to review Philip Morris USA, et al., v. Jackson, a class action case against tobacco companies by smokers. In September, Justice Scalia had entered an order issued blocking enforcement of the judgement, a $241 million anti-smoking program funded by cigarrette producers. The case had been on hold pending the Court's ruling in Dukes v. Wal-Mart. After the decision, the tobacco companies made a new plea to the Court to resolve the Constitutional issues common to both cases. By denying cert, however, the Court seems to have at least declined to do further damage to the class action process in the upcoming term.