Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Nov 4, 2015)

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.

To date, there are 17 antitrust and trade regulation cases that are awaiting Supreme Court Review. Since the opening of the October 2015 term, the Court has granted summary disposition in one advertising case; granted review in three other cases involving advertising, privacy, and the Racketeer Influenced and Corrupt Organizations Act (RICO); and denied review in six cases concerning advertising, antitrust, franchising and distribution, and RICO.

Antitrust, vertical agreements. Apple Inc. is seeking review of a decision of the U.S. Court of Appeals in New York City, upholding a finding that Apple orchestrated a price fixing conspiracy among major publishing companies to raise the prices of e-books. The petition asks whether vertical conduct by a disruptive market entrant, aimed at securing suppliers for a new retail platform, should be condemned as per se illegal under Section 1 of the Sherman Act, rather than analyzed under the rule of reason, because such vertical activity also had the alleged effect of facilitating horizontal collusion among the suppliers (Apple Inc. v. U.S., Dkt. 15-565).

Antitrust, discoverable work product. Boehringer Ingelheim Pharmaceuticals, Inc. is asking the Supreme Court to review a decision by the U.S. Court of Appeals in Washington, D.C., which held 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 asks: (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 is not required to show that the requested material has any heightened relevance to the case? (Boehringer Ingelheim Pharmaceuticals, Inc. v. FTC, Dkt. 15-560).

Unfair trade practices, arbitration. A Verizon Wireless customer is requesting that the Supreme Court review a decision by the U.S. Court of Appeals in New York City that found his various constitutional challenges to the Federal Arbitration Act (FAA) meritless and stayed the consumer fraud action after arbitration was compelled by the trial court. The customer sued Cellco Partnership, doing business as Verizon Wireless, alleging—in part—consumer fraud claims based on administrative charges that were purportedly misrepresented as “government related” costs on customers’ bills. The petition for review asks: (1) whether the application of the Federal Arbitration Act (“FAA”) to state-law private rights brought within the jurisdiction of the federal courts violates Article III of the United States Constitution; and (2) Whether Congress’ adoption of the alternative scheme of adjudication under the FAA combined with the federal courts’ enforcement of the statute as mandated by Congress constitutes “state action” (Katz v. Cellco Partnership, Dkt. 15-542).

Advertising class action, ascertainability. Direct Digital, LLC, the marketer of the dietary supplement Instaflex, is challenging a decision by the U.S. Court of Appeals in Chicago that upheld class certification in a consumer fraud suit and rejected the notion that Federal Rule of Civil Procedure 23(b)(3) imposes a heightened ascertainability requirement. A consumer alleged that Direct Digital fraudulently represented that Instaflex relieves joint discomfort. Direct Digital asks, “May a court certify a class under Federal Rule of Civil Procedure 23(b)(3) where the plaintiff fails to make any showing of a reliable and administratively feasible means for ascertaining class membership?” (Direct Digital, LLC v. Mullins, Dkt. 15-549).

Advertising, false endorsement. The High Court refused to review a challenge to a Ninth Circuit order denying A.V.E.L.A., Inc.’s post-trial motion for judgment as a matter of law on a false endorsement claim. A.V.E.L.A. purportedly enhanced and refurbished for use a variety of merchandise containing copyrighted and public domain images of Bob Marley. The U.S. Court of Appeals in San Francisco determined that the defendants violated the Lanham Act because A.V.E.L.A. and others used Marley’s image on their t-shirts and other merchandise, in a manner likely to cause confusion as to plaintiffs’ sponsorship or approval of the t-shirts and merchandise. The petition asked: (1) Does Lanham Act § 43(a) protect a deceased celebrity’s persona-successor without it showing that the celebrity’s persona acquired secondary meaning so that it identifies the persona-successor as the source of sponsorship or approval? (2) Does a Plaintiff satisfy 43(a)’s “consumer confusion” requirement even without evidence that its sponsorship or approval would have any consequence to purchasers? (A.V.E.L.A., Inc. v. Fifty-Six Hope Road Music, Ltd., Dkt. 15-264).

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.

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