Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Apr 6, 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 hasgranted summary disposition in another case. In addition, the Court has denied 28 petitions in antitrust and trade regulation cases, while 20 other petitions are awaiting review.

Advertising, sign regulations. A billboard operator is once again asking that the High Court review a decision of the U.S. Court of Appeals in San Francisco, which—upon remand by the Supreme Court—added an ipse dixit footnote to the original opinion, stating that the district court’s analysis “complies with” the new precedent set forth in the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). The Supreme Court previously vacated the appellate court’s decision, which affirmed summary judgment in favor of the City of Richmond in a constitutional challenge to the city’s ban on non-commercial signs—including political signs—where commercial signs were allowed (Herson v. City of Richmond, Dkt. 15-1239).

Antitrust, rule of reason. A group of current and former student-athletes is asking the Supreme Court to review a decision entered by the U.S. Court of Appeals in San Francisco, which affirmed that the National Collegiate Athletic Association (NCAA) rules prohibiting student-athletes from being paid for the use of their names, images, and likenesses (NILs) violated the Sherman Act, but overturned the district court’s remedy of prohibiting the NCAA from barring colleges from providing deferred compensation to student-athletes. In particular, the student-athletes take issue with the appellate court’s rule of reason analysis and the court’s holding that allowing NCAA member schools to give scholarships up to the full cost of attendance was a proper less-restrictive alternative to the current NCAA rules (O’Bannon v. National Collegiate Athletic Association, Dkt. 15-1167).

Antitrust, standing. Village Supermarkets, Inc.—the owner of a ShopRite supermarket in the Hanover, New Jersey, area—is asking the Supreme Court to review a decision by the U.S. Court of Appeals in Philadelphia, which found that a developer’s allegations that its injury was “inextricably intertwined” with Village’s anticompetitive conduct were sufficient to support antitrust standing with regard to the developer’s monopolization claims. Village’s petition asks: (1) Whether an antitrust plaintiff that is neither a competitor nor a consumer in the alleged market has standing under the antitrust laws, particularly when there are other potential plaintiffs that would be more likely to have antitrust standing; and (2) Whether this Court’s “objectively baseless” standard for the sham exception to Noerr-Pennington immunity described in Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc. 508 U.S. 49, 56 (1993) (“PRE”) applies to a “series” of underlying cases notwithstanding this Court’s prior decision in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), and if not, whether four proceedings, each challenging the same construction project, can constitute such a “series” of cases (Village Supermarkets, Inc. v. Hanover 3201 Realty, LLC, Dkt. 15-1156).

Franchising, automobile dealerships. Deere & Co. is requesting that the Supreme Court prevent the State of New Hampshire from enforcing a new state law that allegedly forces the manufacturers within the framework of the Automobile Dealer Bill of Rights; effectively nullifies the manufacturers’ existing dealership agreements; and criminalizes any actions taken under those contracts. In particular, Deere & Co. is challenging a New Hampshire Supreme Court decision, which affirmed a trial court’s ruling against Deere & Co. and other manufacturers. Deere & Co. asks whether the Contract Clause prohibited the New Hampshire legislature from retroactively voiding petitioners’ private contracts, in the name of “leveling the playing field” between the parties to those contracts (Deere & Co. v. New Hampshire, Dkt. 15-1213).

Husqvarna Professional Products, Inc., in a separate petition for review, is also challenging the New Hampshire Supreme Court decision, arguing that the New Hampshire Supreme Court—in affirming the constitutionality of legislation enlarging the scope of the state’s motor vehicle dealership statute to reach yard and garden equipment dealers—invented a new test for evaluating a statute under the Contract Clause, refused to consider evidence of arbitrary and irrational classification under the Equal Protection Clause, and ignored the legislation’s conflict with the Federal Arbitration Act under the Supremacy Clause. If allowed to stand, Husqvarna claims that the state court’s decision will “provide a roadmap for other state courts on how to sidestep the constitutional analysis mandated by this Court when addressing challenges to protective economic regulation” (Husqvarna Professional Products, Inc. v. New Hampshire, Dkt. 15-1218).

RICO, extraterritorial application. The Supreme Court heard oral arguments on March 1 in RJR Nabisco, Inc.’s challenge to a decision entered by the U.S. Court of Appeals in New York, which found that the Racketeer Influenced and Corrupt Organizations Act (RICO) applies extraterritorially. RJR argued that the Second Circuit’s holding is wrong for two reasons: “First, RICO’s private civil cause of action does not provide redress for foreign injuries; and second, RICO’s substantive prohibitions do not reach the infiltration and corruption of foreign enterprises.” In its brief, RJR argues that unless Congress clearly provides otherwise, federal statutes apply only domestically (RJR Nabisco, Inc. v. The European Community, Dkt. 15-138).

Denials. The Supreme Court denied The Procter & Gamble Company’s request to review an order, entered by the U.S. Court of Appeals in Cincinnati, which granted class certification in an action alleging that Procter & Gamble’s probiotic nutritional supplement—Align—did not work as advertised (The Procter & Gamble Co. v. Rikos, Dkt. 15-835). The Court also denied a closely-watched petition that questioned the proper standard for evaluating competitive harm caused by exclusive dealing arrangements, in an action in which the U.S. Court of Appeals in Atlanta upheld an FTC determination that McWane, Inc.—the largest supplier of ductile iron pipe fittings in the United States—used these vertical restraints to unlawfully maintain its monopoly power (McWane, Inc. v. FTC, Dkt. 15-706).

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