Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Mar 11, 2015)

This Antitrust Law Daily feature presents a chart highlighting the decisions, arguments, briefs, and petitions on antitrust and trade regulation issues before the 2014 Term of the U.S. Supreme Court.

Currently, there are 11 antitrust and trade regulation cases that are awaiting Supreme Court Review. Since the opening of the 2014 term, the Court has issued an opinion in two antitrust cases; granted certiorari in one additional antitrust case; and denied certiorari in 14 other cases involving acquisitions and mergers, advertising, antitrust, consumer protection, and the Racketeer Influenced and Corrupt Organizations Act.

The Dow Chemical Company, in The Dow Chemical Co. v. Industrial Polymers, Inc. (Dkt. 14-1091), petitioned the Supreme Court for 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.

In National Milk Producers Federation v. Edwards (Dkt. 14-1078), the National Milk Producers Federation is requesting that the Supreme Court review the Ninth Circuit’s denial of appeal of a class certification order of approximately 46 million consumers from 14 states and the District of Columbia to challenge an alleged conspiracy to limit the production, and thereby increase the price, of raw milk. The questions presented include: (1) Whether a court may certify a class action without fully determining whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to finding injury and damages on a class-wide basis; and (2) whether a court’s express refusal to resolve factual issues relevant to certification and to consider defendants’ evidence challenging the plaintiff class’ ability to prove injury and damages on a class-wide basis contravenes the Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, and Comcast Corp. v. Behrend, 133 S. Ct. 1426, 2013-1 Trade Cases ¶78,316.

A marketing consulting company for the U.S. Navy, in Gomez v. Campbell-Ewald Co. (Dkt. 14-857), has asked the Supreme Court to review a decision by the U.S. Court of Appeals in San Francisco, reversing a lower court’s order of summary judgment and finding that an individual may be vicariously liable under the Telephone Consumer Protection Act and was not entitled to derivative sovereign immunity. Campbell-Ewald Co. poses three questions: (1) whether a case becomes moot, and thus beyond judicial power of Article III, when the plaintiff receives an offer of complete relief on his claims; (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, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.

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 2014 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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