Maine Day at the Supremes


On October 6, the U.S. Supreme Court will be hearing two cases from Maine.

1. Altria Group, Inc. v. Good, Docket No. 07-562.   

This is a class action by smokers against Altria and its subsidiary, Philip Morris, for fraudulent misrepresentation under Maine state law, claiming that terms in advertising like "light" and "lower in tar and nicotine" were mispresentations.  Altria argued that the state law claims are preempted under the Federal Cigarette Labeling and Advertising Act (FCLAA), 15 U.S.C. s1334(b), as well as FTC formal and informal regulation.  The District Court of Maine agreed with Altria.  The First Circuit reversed, holding that the FCLAA only preempts a state law "requirement or prohibition based on smoking and health" and not legal claims "based on smoking and health."  501 F.3d 29, 38. (  The Supreme Court granted certiorari to consider whether the FCLAA preempts state law misrepresentation claims under the Maine Unfair Trade Practices Act.

Altria is the second major preemption case the Supreme Court is hearing this term so far.  The first is Wyeth v. Levine, 06-1249.  I blogged on Wyeth last week in my other incarnation on

2.  Locke v. Karass, Docket No. 07-610. 

This is a First Amendment case.  The state of Maine has designated the Maine State Employees Association ("MSEA") the exclusive collective bargaining agent for state employees, including certain non-union members.  This means these nonmembers have to pay service fees to MSEA, with part of those fees going to a larger umbrella union.  A group of the nonmembers sued MSEA, claiming that this pooled arrangement violates their constitutional rights, because some litigation fees end up contributing to units outside MSEA.  The District Court ruled for the unions, and the First Circuit affirmed.  498 F.3d 49 (  So the issue is whether Maine can require its nonunion employees to pay fees to a union for representation if the union may use the income from those fees to represent individuals outside of the state employees’ bargaining unit.  There is currently a split in the circuits on this issue.  See id. at 60-62.    

I have no prediction as to who will prevail in either of these cases.  I only note, as a general matter, that because the Supreme Court takes appeals upon its discretion, the percentages in the Supreme Court echo those in other discretionary high courts, as opposed to courts that must accept all appeals.  While usually the appellant loses in courts that take on all comers, more often than not, in a discretionary appellate court, the decision is flipped.