Antitrust Law Daily Wrap Up, ADVERTISING NEWS: High Court denies review of public transit ad dispute, Justice Thomas dissents, (Mar 7, 2016)

By Greg Hammond, J.D.

The Supreme Court denied review today of the American Freedom Defense Initiative’s challenge to a decision by the U.S. Court of Appeals in San Francisco, which affirmed denial of preliminary injunction in an action where King County, Washington, rejected a “Faces of Global Terrorism” advertisement on its buses. American Freedom claimed that the appellate court’s decision conflicts with the majority of other federal courts of appeal; the County’s “false or misleading” ad restriction violates the First Amendment; and the appellate court’s decision finding that American Freedom failed to demonstrate irreparable harm threatens to undermine First Amendment protections (American Freedom Defense Initiative v. King County, Dkt. 15-584).

Justice Clarence Thomas dissented from the denial of certiorari, which Justice Samuel Alito joined. In particular, Justice Thomas stated that he would have granted certiorari to resolve the division among Courts of Appeals on the type of forum created by advertising in public transit spaces. According to the dissent, transit authorities in Chicago, Detroit, New York City, and Washington, D.C. are bound by rulings that classify their ad spaces as designated public forums and, thus, prohibit content-based restrictions on advertising. Transit authorities in Boston and Seattle, however, are similarly open to political speech, according to Justice Thomas, but can freely restrict speech based on its content.

“Whether public transit advertising spaces are designated or limited public forums determines what speech millions of Americans will—or will not—encounter during their commutes,” Justice Thomas writes. “This case offers an ideal opportunity to bring clarity to an important area of First Amendment law.”

Antitrust, class certification. The Court today also granted a joint motion to hold The Dow Chemical Company’s petition in abeyance. The petition seeks review of a decision by the U.S. Court of Appeals in Denver upholding a district court’s grant of class certification in an antitrust action against Dow and other chemical producers over an alleged conspiracy to fix prices for chemicals used in the manufacture of polyurethane products. Dow asked: (1) whether, in certifying a class under Federal Rule of Civil Procedure 23(b)(3), courts may presume class-wide injury from an alleged price fixing agreement, even when prices are individually negotiated and individual purchasers frequently succeed in negotiating away allegedly collusive overcharges; and (2) whether a class may be certified or a class-wide damages judgment affirmed where plaintiffs’ common “proof” of damages is a model that (a) does not purport to determine the actual damages of most class members, but instead applies an “average” overcharge estimated from a sample of transactions of very different purchasers, or (b) assumes that defendants engaged in multiple antitrust violations, even though plaintiffs attempted to prove only one violation at trial (The Dow Chemical Co. v. Industrial Polymers, Inc., Dkt. 14-1091).

TCPA, statute of limitations. Ewing Industries Corp.—a glass installation, work, and contracting company—was also denied review of a decision by the U.S. Court of Appeals in Atlanta, which affirmed an order striking Ewing’s Telephone Consumer Protection Act (TCPA) claims. The appellate court, according to Ewing’s petition, held that the prior pendency of a class action, dismissed before reaching the merits of class certification, can never toll the statute of limitations for absent class members to maintain a subsequent class action. The question presented was: Does the prior pendency of a class action that was dismissed before reaching the merits of class certification toll the statute of limitations for absent class members to bring a subsequent class action? (Ewing Industries Corp. v. Bob Wines Nursery, Inc., Dkt. 15-844).

Attorneys: Carter G. Phillips (Sidley Austin LLP) for Dow Chemical Co. Paul D. Clement (Bancroft PLLC) for Industrial Polymers, Inc. Robert Joseph Muise (American Freedom Law Center) for American Freedom Defense Initiative. David Hackett, Office of the Prosecuting Attorney, King County, Washington. Phillip A. Bock (Bock & hatch LLC) for Ewing Industries Corp. Michael L. Resis (SmithAmundsen, LLC) for Bob Wines Nursery, Inc.

Companies: The Dow Chemical Co.; Industrial Polymers, Inc.; American Freedom Defense Initiative; King County, Washington; Ewing Industries Corp.; Bob Wines Nursery, Inc.

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