Litigation Trends 2024

LITIGATION TRENDS 2024 | 21 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C 20 | Weil, Gotshal & Manges LLP authority. In Loper Bright Enterprises v. Raimondo, No. 22-451, and Relentless, Inc. v. Department of Commerce, No. 22-1219 (argued January 17, 2024), the Court will decide whether to overrule the so-called “Chevron doctrine,” which generally requires (or permits) courts to defer to an administrative agency’s reasonable interpretation of ambiguous statutory language (please see our broader discussion of these two cases in the Patent section). And in Securities and Exchange Commission v. Jarkesy, No. 22-859 (argued November 29, 2023), the Court is considering whether the Seventh Amendment and other constitutional protections limit the Securities and Exchange Commission’s authority to impose civil penalties in administrative proceedings. In addition, in two cases in which Weil authored amicus briefs, the Supreme Court will address whether the Consumer Financial Protection Bureau’s funding mechanism is constitutional in Consumer Financial Protection Bureau v. Community Financial Services Association, No. 22-448 (argued October 3, 2023), and clarify when parties are able to bring suits under the Administrative Procedure Act in Corner Post v. Board of Governors of the Federal Reserve System, No. 22-1008 (argued February 20, 2024). Taken together, these cases and the broader trend they reflect are sure to have significant ramifications for the administrative state and its relationship with regulated entities in the years to come and present new avenues for challenging administrative agency action. The Supreme Court Rejects Affirmative Action in University Admissions With Follow-On Impacts for Employers In a major decision, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), the U.S. Supreme Court held that Harvard’s and the University of North Carolina’s race-conscious admissions policies were unconstitutional, effectively ending race-conscious affirmative action programs on college campuses. “However well intentioned” these programs were, the Court held, they constituted illegal racial discrimination and violated the Equal Protection Clause of the Fourteenth Amendment. While the Court’s decision was focused on university admissions, its ramifications are already being felt in the private sector. In the wake of Students for Fair Admissions, lawsuits have been filed against private companies challenging their diversity, equity, and inclusion initiatives. For example, lawsuits have recently been filed challenging a venture capital firm’s grant program for businesses led by Black women and various law firms’ diversity fellowships available to job applicants from historically underrepresented communities. Additionally, dozens of letters have been sent to the Equal Employment Opportunity Commission targeting diversity initiatives by companies like IBM, American Airlines, and Macy’s. The key question in these cases is whether and how the principles articulated in Students for Fair Admissions apply in the context of various Civil Rights Acts that prohibit racial discrimination in private hiring, promotion, and contracting decisions. This is a question that courts will soon address in the wake of the Supreme Court’s decision and that currently creates uncertainty for corporate diversity, equity, and inclusion initiatives going forward. As a result of these risks, some companies are considering dropping or altering their diversity programs, while others are opting to preserve their programs and, if necessary, defend them in court. The Supreme Court Considers Important Questions About Bankruptcy Standing and Third-Party Releases Coming off a Term that saw a unanimous victory for Weil’s client in Bartenwerfer v. Buckley, 598 U.S. 69 (2023), which addressed the treatment A P P CROSS-PRACTICE FOCUS Appeals and Strategic Counseling

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