Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (May 20, 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 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 three antitrust cases; granted review in two additional antitrust and privacy cases; and denied review in 19 other cases involving acquisitions and mergers, advertising, antitrust, consumer protection, and the Racketeer Influenced and Corrupt Organizations Act.

Most recently, the Supreme Court granted review in Campbell-Ewald Co. v. Gomez. Campbell-Ewald Co., a marketing consultant company, is seeking to reverse a decision by the U.S. Court of Appeals in San Francisco, determining that a defendant may be vicariously liable under the Telephone Consumer Protection Act (TCPA) and that Campbell-Ewald was not entitled to derivative sovereign immunity under its contract with the U.S. Navy. The questions presented in the petition are: (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; (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.

On May 4, the Court denied review in ProMedica Health System, Inc. v. FTC, in which the Court was asked to consider the FTC’s successful challenge to Ohio-based operator ProMedica Health System, Inc.’s consummated acquisition of St. Luke’s Hospital in Toledo. The questions presented were: (1) in defining the relevant product market for a merger analysis, is the FTC permitted to ignore the group of services that market participants actually negotiate for and purchase as a package, and instead define the product market based on supply-side considerations, thus allowing the FTC to gerrymander the product market to artificially inflate market shares?; (2) where the FTC relies exclusively on a unilateral-effects theory in challenging a merger—a theory that turns on substitutability, not on market share—may a court nonetheless adopt a strong presumption of anticompetitive harm based solely on market-share statistics?; and (3) assuming that the FTC can rely on a strong presumption of harm based on market-share statistics in unilateral-effects cases, can it then separately rely on market-share statistics to preclude consideration of the merger target’s financial weakness to rebut that presumption?

The Court denied review in AEP Energy Services v. Heartland Regional Medical Center, in which AEP questioned a Ninth Circuit panel’s determination that specific personal jurisdiction existed over the out-of-state firm for allegedly conspiring with 20 other companies to manipulate natural gas prices in violation of state antitrust laws. AEP asked the Court: (1) whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum (as well as presumably in every other state); and (2) whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.

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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