Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Feb 10, 2016)

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.

Since the opening of its 2015 Term, the Supreme Court has issued two opinions concerning advertising and privacy cases and granted summary disposition in another case. In addition, the Court has denied 19 petitions in antitrust and trade regulation cases, while 17 other petitions are awaiting review by the Court.

Advertising, due process. Consumers are petitioning the U.S. Supreme Court to review an Illinois Supreme Court decision that vacated a $10.1 billion verdict against tobacco company Philip Morris Inc. for purportedly violating Illinois law by deceptively marketing its “light” and “low tar” cigarettes. The Illinois Supreme Court determined that the appellate court could not decide the merits of the case because the plaintiff consumers incorrectly filed a petition for relief from judgment in an Illinois circuit court when they should have filed the petition in the state supreme court. The petition asks: Whether it violates the Due Process Clause of the Fourteenth Amendment for a judge to participate in a case where the judge has made pejorative public statements about a litigant or an attorney, and there exists a reasonable public perception that one of the parties funded the judge’s election campaign? (Price v. Philip Morris, Inc., Dkt. 15-947).

Antitrust, anticompetitive conduct. Black & Decker U.S. Inc. and other tool companies are challenging a decision by the U.S. Court of Appeals in Richmond, which found that SD3, LLC—a safety technology developer—adequately alleged that the petitioners engaged in a group boycott of SD3’s “active injury mitigation technology” that prevents some hand and finger injuries caused by table saws. The appellate court found that the federal district court in Alexandria, Virginia, partially erred in dismissing SD3’s antitrust claims against the petitioners. Black & Decker presents two questions for review: (1) At the pleading stage, must an antitrust plaintiff similarly plead facts that tend to exclude an innocent explanation of the conduct in order to show allegations are plausible under Bell Atlantic v. Twombly, 550 U.S. 544 (2007)? (2) Must a court accept unsupported allegations about a defendant’s intentions or state of mind, such as allegations that offers to do business with the plaintiff were “disingenuous” and “pretextual”? (Black & Decker U.S. Inc. v. SD3, LLC, Dkt. 15-942).

Antitrust, conspiracy. Visa Inc. and MasterCard Inc. are also seeking High Court review of a decision by the U.S. Court of Appeals in Washington, D.C., which revived price fixing claims that were brought against Visa, MasterCard, and affiliated banks by automatic teller machine (ATM) operators, as well as consumers who purportedly paid excessive fees when using these machines. The appellate court concluded that, even where a member of a conspiracy appears to sever ties with other co-conspirators, there is no withdrawal if that member continues to support or benefit from the agreement. The questions presented are identical in the two petitions: Whether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. §1, as the Court of Appeals held below, or are insufficient, as the Third, Fourth, and Ninth Circuits have held? (Visa Inc. v. Osborn, Dkt. 15-961; Visa Inc. v. Stoumbos, Dkt. 15-962).

Franchising, discrimination. The International Franchise Association, Inc. (IFA) is asking the High Court to review a decision by the U.S. Court of Appeals in San Francisco finding that the IFA was not likely to succeed on the merits of its challenge to Seattle’s $15 an hour minimum wage ordinance—or more specifically, to the municipality’s decision to group franchisees in with the category of “large employers” that will be subjected to the steeper schedule of incremental wage hikes over the next five years. The appellate court affirmed a district court decision denying preliminary injunctive relief from the $15 an hour minimum wage ordinance. The question presented is: Whether a state or local law that discriminates against certain in-state businesses based solely on their ties to interstate commerce discriminates against interstate commerce? (International Franchise Association, Inc. v. Seattle, Dkt. 15-958).

RICO, proximate causation. A group of telemarketing companies, chiropractic clinics, and affiliated law offices are challenging a decision by the U.S. Court of Appeals in New Orleans, which concluded that sufficient evidence existed to support a jury’s finding that the petitioners violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO) and Ohio’s RICO statute, committed fraud, and were unjustly enriched. The petitioners engaged in a scheme to defraud insurance companies, including Allstate Insurance Co., by contacting not-at-fault victims in vehicle accidents and convincing them to receive unnecessary chiropractic services, the appellate court found. The petition for review asks: When, if ever, can the plaintiff in a civil RICO case predicated on mail and wire fraud establish proximate causation without showing that someone—the plaintiff or a third party—relied on the defendants’ misrepresentations to the plaintiff’s detriment? (Plambeck v. Allstate Insurance Co., Dkt. 15-949).

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 FranchisingDistribution RICO