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From Antitrust Law Daily, October 10, 2017

High Court invites Solicitor General input; denies review in seven antitrust and trade regulation petitions

Entering the second week of the October 2017 term, the U.S. Supreme Court again declined to add any antitrust or trade regulation cases to its calendar and denied seven petitions for review. However, the Court invited the Solicitor General to file briefs in Apple Inc. v. Pepper (Dkt. 17-204) and Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (Dkt. 16-1220), expressing the views of the Department of Justice.


Loss of employment. The Supreme Court declined to review a decision by the U.S. Court of Appeals in Atlanta that affirmed a Georgia federal district court’s ruling that a sales manager who purportedly lost his job due to a conspiracy directed at his employer by a competitor lacked standing to pursue an antitrust claim against the competitor. The petition for certiorari argued that there was a split between the circuits as to whether an employee had antitrust standing to pursue a collateral injury and that he suffered an antitrust injury because he was a direct target of the respondents’ actions, and that the Eleventh Circuit acted against the strong public policy of encouraging claims from the broadest possible array of injured victims in order to protect competition in the economy and deter predatory behavior (Feldman v. American Dawn, Inc.Dkt. 17-172).


Computer Fraud and Abuse Act. A social media integration company facing claims by Facebook for violations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), the Computer Fraud and Abuse Act (CFAA), and California Penal Code §502 for accessing Facebook users’ data and initiating emails that promoted its website was denied review of a decision of the U.S. Court of Appeals in San Francisco that the defending company was liable for computer trespass for intentionally accessing Facebook’s data and computers without authorization. The petition asked whether an online company given consent by users of an online social networking service to access data shared or stored by the users on the service, but is prohibited access by the service, "intentionally accesses a computer without authorization . . . and thereby obtains information from [a] protected computer" in violation of 18 U.S.C. §1030(a)(2)(c) of the Computer Fraud and Abuse Act of 1986 (Power Ventures, Inc. v. Facebook, Inc.Dkt. 16-1105).

Damages class certification. The Supreme Court will not hear a petition asking whether Federal Rule of Civil Procedure 23 permits a district court to certify a damages class where there is no reliable, administratively feasible method for identifying the members of the class. The U.S. Court of Appeals in San Francisco Class holding that representatives need not demonstrate that there is an "administratively feasible" means of identifying absent class members to obtain class certification will not be reviewed. Therefore, a district court properly certified a class action of cooking oil purchasers despite Wesson-brand cooking oil manufacturer ConAgra Foods, Inc.’s argument that the class representatives failed to proffer an administratively feasible way to identify members of the certified classes (ConAgra Brands, Inc. v. Briseno, et al.Dkt. 16-1221).

Event poster restrictions. The Court let stand the U.S. Court of Appeals for the District of Columbia’s reversal of a district court’s grant of summary judgment, wherein the district court found that the District of Columbia’s sign posting rules that imposed restrictions on event-related posters were invalid on First Amendment and due process grounds. In its petition, an advocacy group argued that the District of Columbia sign ordinance imposes special restrictions on non-commercial signs that are "related to" an event. The ordinance had no objective criteria governing when a poster that does not itself reference an event is nonetheless "related to" the event. The lack of objective criteria defining what renders a sign "related to" an event is unconstitutionally vague, the petitioner contended (Muslim American Society Freedom Foundation v. District of Columbia, Dkt. 17-274).


Affirmative defenses. An AAMCO Transmission franchisee was denied review of a decision of the Fourth Circuit Court of Appeals, affirming summary judgment to the defendants and finding the franchisee’s claims barred by res judicata (Dunlap v. Cottman Transmissions Systems, LLC, et al.Dkt. 17-237).


Statute of limitations. The U.S. Supreme Court will not review a decision of the U.S. Court of Appeals in Atlanta that affirmed the district court’s grant of summary judgment, which concluded that the statute of limitations barred an action by a plumbing materials supplier against three competitors for violations of the Racketeer Influenced and Corrupt Organizations Act (Corcel Corporation, Inc. v. Ferguson Enterprises, Inc.Dkt. 17-47).


Sanctions. The Court declined to consider a for-profit college’s request to review an unpublished Kentucky Court of Appeals decision that affirmed the circuit court’s imposition of sanctions for the college’s failure to comply with subpoenas issued by the state attorney general in an action over alleged unfair, false, and deceptive practices in the college’s graduation rates, job placement, and financial aid information given to students. The college contended in its petition that the lower court’s delegation of fact-finding to an adverse party on the issue of sanctions deprived the college of its property violated the Due Process Clause (American National University of Kentucky, Inc. v. Commonwealth of KentuckyDkt. 16-1372).

For details about these and other petitions and cases pending before the Supreme Court, please consult the chart.

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