Posted: July 13th, 2018
By: Whitney Hosey, Editor-in-Chief
On Monday, July 9, President Trump announced his nominee to replace retiring Supreme Court Justice Anthony Kennedy. The nominee, the Honorable Brett Kavanaugh, has served as a federal appeals court judge since his appointment by President George W. Bush in 2006. In that time, Judge Kavanaugh has “written almost 300 opinions.” Among those opinions are several involving both business law and intellectual property law.
On the business end of things, Kavanaugh has consistently ruled in favor of businesses in pivotal cases. For example, in Verizon New England Inc. v. NLRB, Kavanaugh wrote the majority opinion overruling the National Labor Relations Board’s (“NLRB”) decision in favor of an employees’ union. Instead, the Court determined that the union had violated a collective bargaining agreement with Verizon by “displaying pro-union signs in their vehicles.” On the whole “Kavanaugh is considered pragmatic.” The biggest business law and telecom related case which may come before the High Court is determining “whether a proposed nationwide class of consumers can sue Apple, Inc. for allegedly monopolizing the iPhone app market.” The lower court has already granted the plaintiffs standing on the anti-trust claims, whether Kavanaugh would choose to overrule that determination is unclear.
The focus of the Senate confirmation hearings will no doubt include questions regarding privacy law and intellectual property law. Given the turmoil surrounding the tech giants like Apple and social media moguls like Facebook, it would be shocking and disappointing not to hear Kavanaugh’s opinions on how he may lean should a privacy case come before the Court. But this would not be the first time Kavanaugh has presided over privacy cases. While sitting on the D.C. Circuit Court of Appeals, Kavanaugh has heard “at least twenty” Copyright Royalty Board cases as well as cases surrounding the administrative procedure for the Patent and Trademark Office. Additionally, Kavanaugh has weighed in on “tech-related and Fourth Amendment privacy cases.” Such cases involved questions of whether police may install GPS devices on a suspect’s vehicle; whether citizens must register their drones with the Federal Aviation Administration; and whether the government must release information under the Freedom of Information Act.
There is no doubt that in the coming years the Supreme Court will be tasked with addressing more privacy and intellectual property issues, even now there are two intellectual property cases on the docket for the 2018-19 term. The first case asks the court to “clarify a requirement that a copyright owner register its ownership claim with the Copyright Office before suing in federal court.” The second case deals with a patent matter. Having a Justice on the Court with experience in these matters, as well as a Justice who is younger than several of his counterparts, may balance the Court’s views and provide fresh perspective regarding these subjects.
* Whitney Hosey is a rising third year law student at Wake Forest University School of Law. She currently serves as the Editor-in-Chief of the Journal of Business and Intellectual Property Law. She is a graduate of the University of Virginia where she earned her B.A. in History and Government. Before returning to law school, Whitney enjoyed a career in New York working as an Account Executive in the advertising industry and plans to pursue Real Estate and Intellectual Property Law after graduation.