The US Supreme Court's recent rulings call into question whether it really favours corporations. Tony Mauro reports

The US Supreme Court continues to supply anecdotal ammunition to those who say the Court does not deserve its reputation as reflexively "pro-business". In a pair of business cases decided in March, the Court ruled by lopsided majorities in favour of an employee in a wage-and-hours dispute and for plaintiffs in a securities class action. Corporations lost both cases.

In Kasten v Saint-Gobain Performance Plastics Corp, the Court decided that the Fair Labor Standards Act protects from retaliation employees who complain about violations, even when the complaint is oral, not written. And in Matrixx Initiatives v Siracusano, the justices were unanimous in rejecting drugmaker Matrixx's claim that class action plaintiffs had made insufficient pleadings to go forward with their suit. The class asserts that Matrixx defrauded investors by issuing misleading information about the possible side effects of Zicam, a cold remedy.

Around the same time, the Court issued several similar opinions that went against perceived business interests in disputes over seat belt safety, workplace discrimination against members of the military and corporate privacy.

In the Kasten case, the Court continued its recent trend of favouring employees in retaliation cases. Justice Stephen Breyer, writing for the majority, went back to the language of the Fair Labor Standards Act and its context when it was passed in 1938 to protect "particularly illiterate, less educated, or overworked workers".

Given that background, Breyer reasoned, the law, which bars the firing of anyone who has "filed any complaint" about wage and hour violations, was meant to cover oral as well as written complaints. The Court did not rule on a related issue in the case: whether the anti-retaliation protection applies only to complaints filed with government agencies or also applies to those filed with employers. Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented.

The Matrixx decision was perhaps more surprising, given that the Court has been tightening up pleading standards in recent years to discourage meritless suits us-supreme-courtagainst corporations. Its rulings in Bell Atlantic v Twombly and Ashcroft v Iqbal have fuelled much of the criticism that the Roberts Court is unfairly shielding corporations from litigation.

But Matrixx, authored by Justice Sonia Sotomayor, may represent a step back from the higher pleading standards embraced in Twombly and Iqbal . Sotomayor wrote that the plaintiffs in the Zicam class action had "adequately pleaded materiality" to the point that their claim should not have been dismissed at the pleading stage. The class claimed that, through press releases and other statements, the company misled investors in the wake of publicity about cases in which users of the zinc-based Zicam had lost their sense of smell.

Matrixx asserted that the incidents of loss of smell were insufficient to make a "statistically significant correlation" to Zicam. But the unanimous Court found that statistical significance or insignificance is "not dispositive of every case". The mere existence of so-called adverse event reports is not in itself enough to make out a case of securities fraud, Sotomayor wrote, but it can be a factor in the "total mix" of factors that would influence a reasonable investor to sell or buy stock. As a result, the class had presented enough evidence to get past the pleading stage, though Sotomayor cautioned, "whether respondents can ultimately prove their allegations and establish scienter is an altogether different question".

The Matrixx decision was also notable for unanimously upholding a ruling by the US Court of Appeals for the Ninth Circuit – a relative rarity. So why is the pro-business Court ruling against business so often these days? "Perhaps it's because the Court is not quite as pro-business as critics make it out to be," says Richard Samp, chief counsel of the Washington Legal Foundation, which frequently advocates for the business side in Supreme Court cases.

By Samp's reckoning, only four of the 11 business-related decisions the Court has issued so far this term have supported the pro-business side. The Court has so far issued fewer than half of the decisions it will produce this term. Wal-Mart v Dukes, the massive civil rights class action that could overshadow all other business rulings this term, was argued in March.

In Kasten and other recent retaliation cases, Samp says, the Court has tended to side with employees mainly because the statutes involved are written explicitly to protect workers from punishment. "They're not pro-business or pro-employee," Samp says of the justices. "They're trying to interpret the statute in front of them."

Darren Robbins of Robbins Geller Rudman & Dowd in San Diego, the lead plaintiffs firm in the Zicam class action, applauded the ruling in Matrixx. "I'm not so cynical to think that, notwithstanding certain conservative leanings on the Court, they won't look at the facts of the case," Robbins says. Whatever hostility justices might have had about class actions has "started to fade away" in light of the financial meltdown and its impact on retirees and pension funds. "I can't believe that when Justices Alito, Scalia and Roberts look at themselves in the mirror, they are saying, 'I am a pro-business justice'," Robbins adds.

The liberal Constitutional Accountability Center (CAC), a leading critic of the Court's pro-business tilt, felt compelled in February to "give credit where credit is due" to Justice Clarence Thomas for a concurring opinion that sided with consumers in allowing state tort suits against automakers. Doug Kendall, CAC president, says: "I'd love to claim that CAC issued a report and the conservatives on the Supreme Court suddenly stopped ruling so much for the [US Chamber of Commerce], but that's not the way the world works. We think it's great the Court has been able to reach unanimous decisions in a number of these early cases, but the real test will come later in the term, when it takes on issues that have divided the Roberts Court."

This article first appeared in Corporate Counsel, a US affiliate title of Legal Week.