Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Oct 28, 2015)

By Greg Hammond, J.D.

This Antitrust Law Daily feature presents a chart highlighting the decisions, arguments, briefs, and petitions on antitrust and trade regulation issues before the 2015 Term of the U.S. Supreme Court.

To date, there are 14 antitrust and trade regulation cases that are awaiting Supreme Court review. Since the opening of the October 2015 term, the Court has granted summary disposition in one advertising case; granted review in three other cases involving advertising, privacy, and the Racketeer Influenced and Corrupt Organizations Act (RICO); and denied review in five cases concerning advertising, antitrust, franchising & distribution, and RICO.

Antitrust, arbitration. Cox Communications, owned by Cox Enterprises, Inc. and Cox DNS, Inc., has filed a petition seeking review of a decision by the U.S. Court of Appeals in Washington, D.C., upholding a ruling that Cox waived its right to arbitrate a class action antitrust suit filed by its customers. Consumers alleged that the company illegally tied its premium cable service to rental of a Cox set-top box. In its petition, Cox asks: (1) whether, in a putative class action, a defendant waives its right to compel arbitration of the claims of absent class members by not filing its motion to compel arbitration of those class members until after the court has obtained jurisdiction over them by certifying a class; (2) whether, as the D.C. Circuit has held and the Tenth Circuit suggested, a defendant waives its right to compel arbitration by filing a motion for summary judgment simultaneously with a motion to compel arbitration or, as the Fifth Circuit has held, a defendant may file alternative motions to compel arbitration or for judgment on the merits; and (3) whether a reduction in the size of a class constitutes prejudice to plaintiffs sufficient to support a waiver of the defendant’s arbitration rights with respect to absent class members (Cox Communications, Inc. v. Healy, Dkt. 15-466).

Antitrust, evidence of conspiracy. Purchasers of pay-per-use (PPU) text messaging services have asked the Supreme Court to review a decision of the U.S. Court of Appeals in Chicago, rejecting their price fixing claims against the nation’s four largest telecommunications carriers. The purchasers claim that the carriers agreed to identical, parallel price increases for incoming and outgoing PPU messages between 2005 and 2008. They ask: (1) whether the summary judgment standard articulated in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), applies when plaintiffs offer direct evidence of conspiracy; (2) whether a finding of bad faith is required before a trier of fact may draw an adverse inference from the destruction of evidence; and (3) whether a trier of fact may draw an adverse inference from the destruction of evidence only if the trial court first makes the factual findings that authorize such an inference (Aircraft Check Services Co. v. Verizon Wireless, Dkt. 15-519).

Advertising, false health claims. POM Wonderful, LLC is requesting review of a decision by the U.S. Court of Appeals in Washington, D.C., which affirmed an FTC determination that a series of ads touting the benefit of POM’s pomegranate-based products were deceptive. POM questions whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo (POM Wonderful v. FTC, Dkt. 15-525).

For details about these and other petitions and cases pending before the Supreme Court, please consult the chart of antitrust and trade regulation cases awaiting decision in the 2015 term. Issued opinions, granted petitions, pending petitions, and denied petitions are listed separately, along with a summary of the questions presented and the current status of each case.

News: Advertising Antitrust