Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Dec 5, 2016)

By Greg Hammond, J.D.

Kevin Trudeau, the author of the book "The Weight Loss Cure ‘They’ Don’t Want You to Know About," has been denied U.S. Supreme Court review of a decision entered by the U.S. Court of Appeals in Chicago that affirmed a 10-year prison sentence and criminal contempt order. Trudeau was found to have violated an FTC consent order that prohibited him from misrepresenting the content of his books in TV infomercials (Trudeau v. U.S., Dkt. 16-37).

Trudeau argued that there was a circuit split over the classification of criminal contempt, and that the appellate court’s order conflicted with Supreme Court precedent. In addition, Trudeau claimed that the circuit courts were divided over the meaning of the willfulness requirement for criminal contempt and the Supreme Court should determine whether the willfulness element required knowledge.

Antitrust, class actions. In what is described as "one of the most consequential antitrust cases ever litigated" various merchants are asking the U.S. Supreme Court to review a decision entered by the U.S. Court of Appeals in New York City vacating final approval of a $7.25 billion settlement concerning claims that the two largest credit card issuing networks in the United States—Visa and MasterCard—conspired to fix credit and debit card interchange fees paid by merchants. The question presented is: "Whether the ‘adequacy’ requirement in Rule 23(a)(4) necessitates subclasses and separate counsel for plaintiffs seeking money damages under Rule 23(b)(3) and those also seeking injunctive relief under Rule 23(b)(2)?" (Photos Etc. Corp. v. Home Depot, U.S.A., Inc., Dkt. 16-710).

TCPA, attorney fees. An Illinois certified public accountant has asked the U.S. Supreme Court to review a decision of the U.S. Court of Appeals in Chicago that a fund created to compensate a class of fax recipients for violations of the Telephone Consumer Protection Act (TCPA) represented security for payment, not a common fund, and that class counsel was therefore not entitled to a third of that fund. The petition for certiorari, which was filed on November 10, 2016, asks: "Whether a proportionate share of the fees awarded to lawyers who represented a successful class may be assessed against the unclaimed portion of the fund created by the judgment?" (Holtzman v. Turza, Dkt. 16-646).

Supreme Court denials. The Supreme Court also denied review in the following cases: Petrie v. Virginia Board of Medicine, Dkt. 16-524, Havens v. Mobex, Dkt. 16-344, and Fjord v. Kelleher, Dkt. 16-465.

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 2016 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.

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