Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Oct 7, 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 nine 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 five cases concerning advertising, antitrust, franchising & distribution, and RICO.

Advertising, sign regulations. Summary disposition was granted on October 5, vacating a decision of the U.S. Court of Appeals in San Francisco, 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. The billboard operator’s petition asked whether Richmond’s mere assertion of a content-neutral justification rendered its facially content-based sign code content-neutral and justified the ban. The Court remanded the case to the Ninth Circuit for further consideration in light of Reed v. Town of Gilbert (Herson v. City of Richmond, Dkt. 14-1322).

Advertising, arbitration agreements. The High Court heard oral arguments yesterday on whether the California Court of Appeals in Los Angeles erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act (FAA) requires the application of state law preempted by the FAA. DIRECTV argued that the appellate court violated the FAA by refusing to enforce the parties’ arbitration agreement on “nonsensical” grounds and that it interpreted the reference to state law to mean “inoperative State law preempted by the FAA.” Contrary to the appellate court’s decision, DIRECTV requested that the Court follow its decision in Volt Information Sciences, Inc. v. Board of Trustees of Lelan Stanford Junior Univ., 489 U.S. 468 (1989), in which the Court stated, “due regard must be given to the Federal policy favoring arbitration and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Justice Breyer articulated the Court’s dilemma in this case, noting that it has, “on the one hand, the risks that we’ll get into too many State law cases if we take [DIRECT TV’s] side. On the other hand, there is the risk that [state courts] will run around our decisions” (DIRECTV, Inc. v. Imburgia, Dkt. 14-462).

RICO standing. The Court granted review on October 1, 2015, of a decision by the Second Circuit finding that the Racketeer Influenced and Corrupt Organizations Act (RICO) does not require the European Community—consisting of 26 member states—to plead that their injuries actually occurred in the United States. RICO, according to the Second Circuit opinion, applies to foreign conduct when liability is based on “racketeering acts” consisting of violations of predicate statutes that Congress expressly made applicable to foreign conduct. In its request for review, RJR asks whether, or to what extent RICO applies extraterritorially (RJR Nabisco, Inc. v. The European Community, Dkt. 15-138).

Denials. The court denied review of five cases on October 5, including: Mercer Outdoor Advertising, LLC v. City of Hermitage, Pennsylvania (Dkt. 15-19); LaCertosa v. Blackman Plumbing Supply Co., Inc. (Dkt. 14-1509); Fred Martin Motor Co. v. Spitzer Autoworld Akron, LLC (Dkt. 14-1455); Felder’s Collision Parts, Inc. v. All Star Advertising Agency, Inc. (Dkt. 14-1299); and City of San Jose v. Office of the Commissioner of Baseball (Dkt. 14-1252).

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 ConsumerProtection FranchisingDistribution Privacy RICO