Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Mar 16, 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 26 petitions in antitrust and trade regulation cases, while 17 other petitions are awaiting review by the Court.

Privacy, Internet cookies. Internet users are challenging a ruling entered by the U.S. Court of Appeals in Philadelphia that a defendant utilizing third-party cookies is immune from suit under the Wiretap Act as an actual “party” to the communication between Internet users and the websites with which they are communicating. The Internet users claim that the appellate court’s opinion creates a circuit conflict and, if allowed to stand, would eviscerate Wiretap protections for Internet communications. The questions presented are: (1) Whether third-parties who access Internet cookies without authorization—and thereby acquire the content of Internet communications between Internet users and websites—are immune from Wiretap Act liability as actual parties to communications between Internet users and those websites; and (2) Whether the Stored Communications Act protects data detailing an Internet user’s web browsing history stored within a web browser provider’s files that are accessible by an Internet user’s web-browser provider and contained on the personal computing device of the user (In re Google Inc. Cookie Placement Consumer Privacy Litigation, Dkt. 15-1141).

Antitrust, price fixing. The High Court denied review of an order by the U.S. Court of Appeals in New York City, which affirmed that Apple orchestrated a price fixing conspiracy with five major e-book publishers. The denial of review confirms that Apple will pay $400 million in damages to consumers, plus a total of $50 million in attorney fees and costs to the private plaintiffs and to the states that brought suit as parens patriae over the e-books price fixing conspiracy (Apple Inc. v. U.S., Dkt. 15-565).

A former executive for Sea Star Line LLC, a Puerto Rico freight carrier, is asking the Supreme Court to review a decision entered by the U.S. Court of Appeals in Boston that affirmed a 60-month prison sentence and $25,000 criminal fine for his participation in a conspiracy to fix prices for maritime freight services between the continental United States and Puerto Rico (Peake v. U.S., Dkt. 15-1134).

Antitrust, class certification. The Court granted a joint motion to hold The Dow Chemical Company’s petition for review 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 asks: (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).

Denials. The following petitions have been denied by the Supreme Court: Ewing Industries Corp. v Bob Wines Nursery, Inc. (Dkt. 15-844), American Freedom Initiative v. King County (Dkt. 15-584), and Alliance of Automobile Manufacturers, Inc. v. Currey (Dkt. 15-438).

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: Antitrust Privacy