Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Jan 27, 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 in advertising and privacy cases, and has granted summary disposition in another case. In addition, the Court has denied 19 petitions in antitrust and trade regulation cases, while 11 other petitions are awaiting review by the Court.

Privacy, settlement offer. The Supreme Court held on January 20, 2016, that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case. The 6-3 decision affirmed an order entered by the U.S. Court of Appeals in San Francisco, which found that a company could be vicariously liable under the Telephone Consumer Protection Act by allowing a third-party vendor to send unsolicited text messages. Citing basic principles of contract law, the Court reasoned that once the defendant’s offer was rejected, it had no continuing efficacy and the controversy remained live. In addition, the Supreme Court determined that the Petitioner’s status as a federal contractor did not entitle it to derivative sovereign immunity from suit for its violation of the TCPA because the company had exceeded its authority under the contract, violating both federal law “and the Government’s explicit instructions” (Campbell-Ewald Co. v. Gomez, Dkt. 14-857).

The Harvard Drug Group, LLC—a wholesale distributor of prescription and over-the-counter drugs—was denied review of a decision by the U.S. Court of Appeal in Atlanta, which found that the effect of an unaccepted offer of complete relief was not a judgment, nor an injunction or change in the legal relationship between the parties. The respondent, a dentist, filed the initial suit against Harvard Drug, alleging that the company violated the Telephone Consumer Protection Act when sending an unsolicited fax containing what the dentist argued was an insufficient opt-out notice. Harvard Drug presented the same questions to the Court that were the subject of the Campbell-Ewald Co. v. Gomez petition (Dkt. 14-857), including: (1) whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; and (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23 and receives an offer of complete relief before any class is certified (The Harvard Drug Group, LLC v. Barr, Dkt. 14-1194).

Antitrust, discoverable work product. Boehringer Ingelheim Pharmaceuticals, Inc. was also denied Supreme Court review of a decision by the U.S. Court of Appeals in Washington, D.C., which determined that the FTC may discover Boehringer’s alleged work product concerning a settlement agreement that raised pay-for-delay concerns about the prescription drugs Aggrenox and Mirapex. The petition asked: (1) Did the D.C. Circuit err when it held, in conflict with the Second Circuit, that analyses of a proposed settlement’s expected cost and value, directed by an attorney and under the framework and using the inputs provided by the attorney, were fact rather than opinion work product if they were prepared in part for a business purpose? (2) Did the D.C. Circuit err when it held, in conflict with the Fourth, Sixth, Seventh, Tenth, and Eleventh Circuits, that to make a showing of “substantial need” sufficient to override work product protection for fact work product, a party need not show that the requested material has any heightened relevance to the case? (Boehringer Ingelheim Pharmaceuticals, Inc. v. FTC, Dkt. 15-560).

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