Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Apr 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 concerning advertising and privacy cases, granted summary disposition in another case, and has heard oral arguments in a RICO case. In addition, the Court has denied 32 petitions in antitrust and trade regulation cases, while 19 other petitions are awaiting review.

Antitrust, conspiracy. Visa Inc. and MasterCard Inc. have filed a reply brief in an action alleging that the credit card companies and affiliated banks engaged in price fixing. The U.S. Court of Appeals in Washington, D.C., which revived the price fixing claims, concluded that, even where a member of a conspiracy appears to sever ties with other co-conspirators, there is no withdrawal if that member continues to support or benefit from the agreement. Visa and MasterCard argue in their brief that the respondents—ATM operators and consumers who purportedly paid excessive fees when using the ATMS—did not plead facts supporting a plausible inference of an agreement and that the appellate court’s approach makes associations “walking conspiracies” (Visa Inc. v. Osborn, Dkt. 15-961).

Advertising, product mislabeling. Yarn retailer The Knit With was denied Supreme Court review of a decision entered by the U.S. Court of Appeals in Philadelphia, which affirmed that Knit With failed to sufficiently allege false advertising or racketeering claims to pursue an action against a group of yarn designers and a distributor for allegedly participating in a conspiracy to sell mislabeled yarn. The questions presented were: (1) Does the scope of a false advertising action categorically bar a retailer’s redress of marketplace injuries resulting from its wholesaler mis-labeling products supplied for re-sale to consumers when a federal statute mandates product labeling accurately disclose the products’ composition? and (2) Does the holding in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496-97 (1985) (A plaintiff only has 1964(c) standing if, and can recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.) no longer reflect this Court’s determination whether a plaintiff has a cause of action (standing) under 18 U.S.C. 1964(c) or may courts determine a claim made to the measure of damages provided by 1964(c) negates a cause of action to redress injury to business of property by reason of another’s conduct of an enterprise through a pattern of racketeering activity? (The Knit With v. Knitting Fever, Inc., Dkt. 15-1008).

Franchising, arbitration. Dickey’s Barbecue Restaurants, Inc., a national franchisor of quick-service barbeque restaurants, was denied Supreme Court review of a decision by the U.S. Court of Appeals in Richmond, Virginia, that reversed and remanded a district court’s denial of Dickey’s motion to compel arbitration. Franchisees filed suit against Dickey’s in the federal district court in Greenbelt, Maryland, claiming that Dickey’s misrepresented start-up and other costs in violation of Maryland franchise law. The petition asked: Is an otherwise preempted state law, rule or regulation that is required by a state regulator to be included in a contract, as a condition and prerequisite for doing business in the state, not preempted on the ground that it was “voluntarily” included in the contract because the party (i) could have simply declined to do business in the state, or (ii) could have filed a declaratory action challenging the state regulator’s position before including the otherwise preempted contract clause in its agreements? (Dickey’s Barbecue Restaurants, Inc. v. Chorley Enterprises, Inc., Dkt. 15-719).

State unfair trade practices, removal. The High Court denied review of the State of Vermont’s request to decide whether the U.S. Court of Appeals for the Federal Circuit erroneously took jurisdiction over a patent holder’s appeal of an order remanding the case to state court. Vermont filed unfair trade practices and deceptive trade practices claims against MPHJ Technology Investments, LLC, under the Vermont Consumer Protection Act, for purportedly sending deceptive demand letters to Vermont businesses. At issue was a September 28, 2015, decision by the Federal Circuit, holding that removal of the action was properly denied by a federal district court because Vermont’s complaint did not call into question federal law. The petition for review asked: Did the Federal Circuit erroneously take jurisdiction over this appeal of the remand order? (Vermont v. MPHJ Technology Investments, LLC, Dkt. 15-838).

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