With oral arguments now complete in one of the most important construction cases before the U.S. Supreme Court in its new term, both sides—and many other industry officials and attorneys—must wait for the high court to issue its opinion.

The case, Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, centers on the issue of a "forum-selection" clause in a contract between prime contractor Atlantic Marine Construction Co. (AMC), Virginia Beach, Va., and subcontractor J-Crew Management Inc., Killeen, Texas. The contract is for an Army Corps of Engineers child-development center at Fort Hood, Texas.

J-Crew contends that AMC owes it $159,000 for the job. J-Crew sued AMC in federal court in Texas, though the contract specified that suits would be brought in state or federal court in Virginia.

HASTINGS

During the hour-long oral argument at the court on Oct. 9, there was little mention of the construction industry. Instead, the justices' prime focus was the complex interplay among a few sections of federal law that cover procedures for determining where a case may be brought. The high court also was faced with a split on the issue among federal appeals courts.

The justices had plenty of questions for the attorneys for each side: W. Scott Hastings, a partner with Locke Lord LLP, Dallas, representing AMC, and William R. Allensworth, founder of Austin-based Allensworth & Porter LLP, Austin,representing J-Crew's interests.

The lively discussion in the court session didn't break down strictly along conservative-liberal lines. Justice Elena Kagan, a liberal, was probing in her interchange with Hastings, but she was tough on Allensworth, too.

At least a couple of the court's conservatives, Chief Justice John Roberts and Justice Samuel Alito, seemed to side with AMC's views.

ALLENSWORTH

Roberts appeared to emphasize the weight of the contract's forum-selection clause. He said that "the enforceability of the clauses is critically important to a lot of modern commerce." Roberts added that such provisions are particularly key for companies that do business in multiple states. He said that a company official would say, "I don't want to do business all across the country if I'm going to get dragged into different courts who knows where [in locations] where the juries are different."

How did a construction-contract case end up before the Supreme Court? After the oral arguments, Hastings told ENR that the reason is "the confusion that the lower courts have had over the procedures....That sort of opened the door for a lower court to make a decision and not enforce a contract."

Neither Hastings nor Allensworth would predict how the justices might rule. Allensworth told ENR, "I think that most of the judges generally favor forum-selection clauses and are on record as having done so." He added, "The question is whether those clauses were going to be applied reflexively, enforced reflexively, or whether there was going to be any room for judicial discretion before enforcing them."

A decision is expected by the end of court's term next summer, but the precise date is unknown. However, because oral arguments took place so early in the term, the opinion may come out well before the term ends.