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Antitrust Law Daily

U.S. Supreme Court Docket, October 2020 Term — Antitrust & Trade Regulation Cases

Issued Decisions Docket No. Subject Status, Transcript, Filing Holding

Facebook Inc. v. Duguid

19-511 (10/17/19)

Consumer Protection

Decided 4/1/21

Argued 12/8/20

Petition granted as to Question #2 7/9/20

Response due 1/03/20

Reply brief Facebook Inc. 12/02/19;

Reply brief Facebook Inc. 1/10/20

Reply brief 11/16/20

Brief in opposition Noah Duguid 1/3/20

Supplemental brief Facebook, Inc. 7/7/20

Brief in support U.S. 9/4/20

Petitioner’s brief Facebook Inc. 9/4/20

Brief of respondent Noah Duguid 10/16/20

Reply brief United States 11/16/20

Held: Reversed and remanded

1. Whether the TCPA’s prohibition on calls using an ATDS is an unconstitutional restriction of speech, and if so whether the proper remedy is to broaden the prohibition to abridge more speech

2. Whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

Ninth Circuit decision 6/13/19

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Amicus briefs: Washington Legal Foundation; Professional Association for Customer Engagement and Noble Systems Corporation; Portfolio Recovery Associates, LLC; Quicken Loans, LLC; “On-Demand” Technology Platforms; Retail Litigation Center, Inc., et al.; Life Insurance Direct Marketing Association, American Property Casualty Insurance Association and Consumer Credit Industry Association; Healthcare Companies; Electronic Privacy Information Center, et al.; 21 Members of Congress; State of North Carolina, et al.; Main Street Alliance; John McCurley and Dan Deforest; Dr. Henning Schulzrinne; National Consumer Law Center, Consumer Federation of America, and Consumer Reports

Attorneys: Paul D. Clement (Kirkland & Ellis LLP) for Facebook, Inc.

Supreme Court Docket

Granted Petitions Docket No. Subject Status, Deadlines Questions Presented

American Athletic Conference v.

Alston

20-520 (10/20/20)

Antitrust

Petition granted 12/16/20

The Court consolidated this case with No. 20-512 for briefing and oral argument. Future filings and activity in the cases will now be reflected on the docket of No. 20-512.

Response due 11/19/20

Brief in opposition Shawne Alston 11/9/20

Reply brief The Big Ten Commission 11/24/20

Amicus briefs: Sam C. Ehrlich; Antitrust Law And Business

Whether the Sherman Act authorizes a court to subject the product-defining rules of a joint venture to full Rule of Reason review, and to hold those rules unlawful if, in the court’s view, they are not the least restrictive means that could have been used to accomplish their procompetitive goal.

Ninth Circuit decision 5/18/20

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School Professors; Antitrust Economists

Attorneys: Andrew John Pincus (Mayer Brown LLP) for The Big Ten Conference, Inc. Steve W. Berman (Hagens Berman Sobol Shapiro LLP) for Shawne Alston, et al.

Supreme Court Docket

National Collegiate Athletic Association

v. Alston

20-512 (10/19/20)

Antitrust

Petition granted 12/16/20

The Court consolidated this case with No. 20-520 for briefing and oral argument. Future filings and activity in the cases will now be reflected on the docket of No. 20-512.

Motion to dispense with printing the joint appendix filed by petitioners Granted 1/11/21

Response due: 11/18/20

Brief in opposition Shawne Alston 11/9/20

Reply brief National Collegiate Athletic Association 11/24/20

Petitioners brief National Collegiate Athletic Association 2/1/21

Petitioners brief American Athletic Conference 2/1/21

Respondent’s brief Shawne Alston 3/3/21

Amicus briefs: Sam C. Ehrlich; Antitrust Law And Business School Professors; Antitrust Economists; National Federation Of State High School Associations; American Council on Education and Ten Other Higher Education

Whether the Ninth Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law. Ninth Circuit decision 5/18/20

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Associations; Thomas B. Nachbar; Antitrust Law And Business School Professors; Antitrust Economists; Georgia, et al.; Former Student-Athletes; 65 Professors of Law, Business, Economics, and Sports Management; Department of Justice Antitrust Division; Advocates for Minor Leaguers; Historians; Sports Economists; Former NCAA Executives; African American Antitrust Lawyers; American Antitrust Institute; Dr. Ellen J. Staurowsky, Dr. Eddie Comeaux, et al.; Arizona, et al.; O'Bannon Plaintiff Class Representatives; Players Associations of the National Football League, et al.; Open Markets Institute; The Committee to Support the Antitrust Laws

Attorneys: Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for National Collegiate Athletic Association. Linda T. Coberly (Winston & Strawn, LLP) for Shawne Alston, et al.

Supreme Court Docket

AMG Capital Management, LLC v. Federal Trade

Commission

19-508 (10/21/19)

Consumer Protection

Petition granted 7/9/20

This case is no longer consolidated with No. 19-825, Federal Trade Commission v. Credit Bureau Center.

Response due 12/20/19

Respondents brief Federal Trade Commission 12/13/19

Supplemental brief AMG Capital Management, LLC, et al. 6/23/20

Petitioner’s brief AMG Capital Management, LLC, et al. 9/25/20

Whether § 13(b) of the Act, by authorizing “injunction[s],” also authorizes the Commission to demand monetary relief such as restitution—and if so, the scope of the limits or requirements for such relief.

Ninth Circuit decision 12/3/18

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Brief Federal Trade Commission 11/30/20

Reply brief AMG Capital Management, LLC 12/30/20

Argued 1/13/21

Amicus briefs: Americans for Prosperity Foundation; Washington Legal Foundation; TechFreedom; Chamber of Commerce of the United States of America and National Retail Federation; Surescripts, LLC; The Pharmaceutical Research and Manufacturers of America; The New Civil Liberties Alliance; SBH A&I; Former Federal Trade Commission Officials; Remedies, Restitution, Antitrust, and Intellectual Property Law Scholars; American Antitrust Institute; Open Markets Institute; Public Citizen; States of Illinois, et al.; National Consumer Law Center, et al.; Truth in Advertising, Inc.

Attorneys: Paul C. Ray (Paul C. Ray, Chtd.) and Jeffrey A. Lamken (MoloLamken LLP) for AMG Capital Management, LLC, Black Creek Capital Corp., Broadmoor Capital Partners, LLC, Level 5 Motorsports, LLC and Park 269 LLC. Noel J. Francisco for the FTC

Supreme Court Docket

Pending Petitions Docket No. Subject Status, Deadlines Questions Presented

Go New York Tours, Inc. v. Gray

Line New York Tours, Inc.

20-1350 (3/22/21)

Antitrust

Response due 4/26/21

Attorneys: Jonathan M. Jacobson (Wilson Sonsini Goodrich & Rosati, P.C.) and Randall L. Rasey (Barton LLP) for Gray Line New York Tours, Inc., Twin America, LLC, and Sightseeing Pass LLC

1. Whether a plaintiff must allege evidence of “plus factors” in addition to parallel anticompetitive conduct in order to plead an antitrust conspiracy under Section 1 of the Sherman Act.

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Supreme Court Docket 2. Whether allegations of circumstantial evidence falling short of dispositive “plus factors” may be sufficient to plead an antitrust conspiracy under Section 1 of the Sherman Act.

Second Circuit decision 12/22/20

AbbVie Inc. v. FTC 20-1293

(3/18/2021) Antitrust

Response due 4/19/21

Attorneys: Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for AbbVie Inc., Abbott Laboratories, Unimed Pharmaceuticals LLC, and Besins Healthcare, Inc.

Supreme Court Docket

Whether the subjective element of the “sham litigation” exception to Noerr-Pennington immunity may be met by an inference from a finding that a challenged lawsuit was objectively baseless, even without evidence that the antitrust defendant actually believed the suit lacked merit or was indifferent to the outcome.

Third Circuit decision 9/30/20

Bristol-Myers Squibb Co.

v. Connors

20-1149 (2/22/21)

Advertising

Response due 5/13/21

Attorneys: Anand Agneshwar (Arnold & Porter Kaye Scholer LLP) for Bristol-Myers Squibb Co., Sanofi-Aventis U.S. LLC and Sanofi-Synthelabo LLC.

Supreme Court Docket

Whether, under Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013), a federal court must consider the specific characteristics of an underlying state-court civil proceeding to determine whether it is sufficiently “akin to a criminal prosecution” to warrant abstention under Younger v. Harris, 401 U.S. 37 (1971), as eight courts of appeals have held, or whether abstention is warranted whenever “the state proceeding falls within the general class” of state enforcement actions, App.7a, as the Ninth Circuit held in this case.

Ninth Circuit decision 10/29/20

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Louisiana Real Estate Appraisers Board v. Federal

Trade Commission

20-1018 (1/28/21)

Antitrust

Response due 3/31/21

Brief in opposition FTC 3/15/21

Attorneys: Thomas C. Goldstein (Goldstein & Russell, P.C.) for Louisiana Real Estate Appraisers Board. Elizabeth B. Prelogar for the Federal Trade Commission

Supreme Court Docket

Whether and under what conditions orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine?

Fifth Circuit decision 10/2/20

Freedom Watch, Inc. v. Google, Inc.

20-969 (1/15/21)

Antitrust

Response due 2/16/21

Attorneys: Larry Elliot Klayman (Klayman Law Group, P.A.) for Freedom Watch, Inc., et al. Kenneth Winn Allen (Kirkland & Ellis, LLP) for Facebook, Inc. Ian Heath Gershengorn (Jenner & Block) for Apple Inc. Jonathan M. Jacobson (Wilson Sonsini Goodrich & Rosati, P.C.) for Twitter, Inc.

Supreme Court Docket

Did the U.S. Court of Appeals for the D.C. Circuit err by failing to find that the District of Columbia Human Rights Act’s prohibition on political discrimination does not require a physical location?

Did the U.S. Court of Appeals for the D.C. Circuit err by failing to find that Respondents are subject to the First Amendment to the Constitution?

Did the U.S. Court of Appeals for the D.C. Circuit err by failing to find that Respondents had violated the Sherman Act?

District of Columbia Appellate Court decision 5/27/20

Richardson v. Coverall North America, Inc.

20-763 (12/2/20)

Franchising &

Distribution

Response due 2/4/21

Brief in response Sujol LLC 2/3/21

Attorneys: Shannon Liss-Riordan (Lichten & Liss-Riordan,

1. Whether incorporation by reference of a separate set of arbitration rules constitutes clear and unmistakable evidence of intent to delegate the threshold question of arbitrability to an arbitrator in a case involving an unsophisticated party presented

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P.C.) for Ericka Richardson, et al.

Supreme Court Docket

with an adhesive agreement.

2. Whether state or federal law should govern the determination as to whether an arbitration agreement clearly and unmistakably delegated the threshold question of arbitrability to an arbitrator.

Third Circuit decision 4/28/20

Pennsylvania Higher Education Assistance Agency

v. Allan

20-723 (11/25/20)

Consumer Protection

Response due 12/28/20

Response brief Support Susan Allan 2/18/21

Attorneys: George W. Hicks, Jr. (Kirkland & Ellis LLP) for Pennsylvania Higher Education Assistance Agency.

Supreme Court Docket

Whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

Sixth Circuit decision 7/29/20

Glasser v. Hilton Grand Vacation

Co., LLC

20-418 (10/1/20)

Privacy

Response due 1/29/21

Brief in opposition Hilton Grand Vacation Co., LLC 1/29/21

Attorneys: Keith J. Keogh (Keogh Law, Ltd.) for Melanie Glasser.

Supreme Court Docket

(1) Whether this definition encompasses predictive dialers, which automatically dial telephone numbers stored in a list and then forward those calls to a human being only if somebody answers the phone. Or, is the definition limited only to systems that utilize a random or sequential number generator to generate arbitrary numbers to be called? The Court recently granted a petition for a writ of certiorari to consider this question in Facebook, Inc. v. Duguid, No. 19-511, 2020 U.S. Lexis 3559 (July 9, 2020).

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(2) Whether a predictive dialer is removed from the scope of the ATDS definition simply because it requires a human being, who does not participate in the phone calls, to forward the list of numbers that will be called to the dialer.

Eleventh Circuit decision 1/27/20

Comcast Corporation v. Viamedia, Inc.

20-319 (9/10/20)

Antitrust

Response due 11/12/20

Brief in opposition Viamedia, Inc. 11/3/20

Reply brief Comcast Corporation 11/16/20

The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Barrett took no part in the consideration of this petition.

Amicus briefs: The Chamber of Commerce of the United States of America; Washington Legal Foundation; Scholars of Economics and Antitrust; NCTA - The Internet & Television Association

Attorneys: Arthur J. Burke (Davis Polk & Wardwell LLP) and Ross B. Bricker (Jenner & Block LLP) for Comcast Corp. and Comcast Cable Communications Management, LLC.

Supreme Court Docket

(1) Whether the Seventh Circuit erred in holding that a refusal-to-deal claim under § 2 of the Sherman Act may proceed despite the presence of valid business justifications for the refusal, in direct conflict with Trinko and decisions of the Second, Ninth, Tenth, and Eleventh Circuits

(2) Whether the Seventh Circuit erred in allowing a plaintiff to avoid the limitations on a § 2 refusal-to-deal claim by reframing it as some other form of anticompetitive conduct, such as tying, in direct conflict with Linkline and decisions of the Fourth, Ninth, and Tenth Circuits.

Seventh Circuit decision 2/24/20

Ali Gadelhak v. AT&T Services, Inc.

20-209 (8/21/20)

Consumer Protection

Response due 11/2/20

Brief of respondent AT&T Services, Inc. 10/21/20

Whether this definition encompasses only systems that autodial telephone numbers generated using a random or sequential number generator, or whether those

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Attorneys: Keith J. Keogh (Keogh Law, Ltd.) for Ali Gadelhak.

Supreme Court Docket

restrictions also apply to systems that autodial telephone numbers stored in a list, like the system used by Respondent in this case.

Seventh Circuit decision 2/19/20

FTC v. Credit Bureau Center, LLC

19-825 (12/31/19)

Consumer Protection

Order granting petition vacated 11/9/20

Petition granted 7/9/20

Response due 5/04/20

Brief in opposition Credit Bureau Center, LLC 4/14/20

Reply brief Federal Trade Commission 4/28/20

Respondent’s brief FTC 9/25/20

Amicus briefs: State of Illinois et al.

Attorneys: Alden Francis Abbott for the Federal Trade Commission

Supreme Court Docket

Whether Section 13(b) of the FTC Act authorizes district courts to enter an injunction that orders the return of unlawfully obtained funds.

Seventh Circuit decision 8/21/19

Publishers Business Services, Inc. v. Federal Trade Commission

19-507 (10/18/19)

Consumer Protection

Response due 12/18/19

Brief in opposition Federal Trade Commission 12/13/19

Supplemental brief Publishers Business Services, Inc. 6/30/20

Amicus briefs: Cause of Action Institute; Washington Legal

1. Whether a district court can award monetary relief under § 13(b) of the FTC Act, consistent with separation-of-powers principles

2. Whether a monetary disgorgement award under § 13(b) of the FTC Act is a penalty and therefore outside a district

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Foundation

Attorneys: Peter Winslow Homer (Homer Bonner Jacobs, P.A.) for Publishers Business Services, Inc., et al. Noel J. Francisco for the Federal Trade Commission

Supreme Court Docket

court’s inherent equity powers.

Ninth Circuit decision 8/31/18

Dismissed Petitions

Docket No. Subject Status Questions Presented

Henry Schein, Inc. v. Archer and

White Sales, Inc.

19-963 (1/31/20)

Antitrust/ Franchising

& Distribution

Dismissed as improvidently granted 1/25/21

Petition granted 6/15/20

Response due 3/2/20

Brief in opposition Archer and White Sales, Inc. 3/2/20

Reply brief Henry Schein, Inc. 5/21/20

Petitioner’s brief Henry Schein, Inc. 8/21/20

Brief for the respondent Archer and White Sales, Inc. 10/13/20

Oral Arguments scheduled for 12/8/20

Amicus briefs: The Chamber of Commerce of the United States of America; DRI - The Voice of the Defense Bar; Benco Dental Supply Company; Professor George A. Bermann; Professors Daniel D. Barnhizer, Jeffrey L. Harrison, David Horton, Lee Kovarsky, Stephen I. Vladeck, and Ernest A. Young; Arbitrators, Arbitration Practitioners, and Arbitration Scholars; Constitutional Accountability

Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.

Fifth Circuit decision 8/14/19

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Center; American Association for Justice & Public Justice; William R. Weinstein

Attorneys: Kannon K. Shanmugam (Paul, Weiss, Rifkind, Wharton & Garrison LLP) for Henry Schein, Inc. Lewis T. LeClair (McKool Smith) for Archer and White Sales, Inc.

Supreme Court Docket

Denied Petitions Docket No. Subject Status, Deadlines Questions Presented

Nypl v. JPMorgan Chase & Co.

20-770 (12/4/20)

Antitrust

Petition denied 2/22/21

Response due 1/4/21

Attorneys: Joseph Michaelangelo Alioto (Alioto Law Firm) for John Nypl. Kelly M. Klaus (Munger, Tolles & Olson LLP) for Wells Fargo Bank, N.A.

Supreme Court Docket

Whether this Court should decide an important question of federal law that has not been, but should be, settled by this Court, with regard to the applicable burden on a moving-party seeking to quash the subpoena of a non-party witness under Fed. R. Civ. P. 45(d)(3).

Whether, under Fed. R. Civ. P. 45, the court where subpoena compliance is required must weigh and/or defer to the opinion of the court where the action is pending in ruling on a motion to quash the subpoena of a non-party witness.

Ninth Circuit decision 4/28/20

Middleton v. Complete Nutrition

Franchising, LLC

20-724 (11/25/20)

Franchising &

Distribution

Petition denied 2/22/21

Response due 12/28/20

Brief in opposition Complete Franchising, LLC 12/28/20

1. Should this Court clarify the standard of review in a Rule 59(e) post judgment motion to amend following a dismissal with prejudice under Rule 12(b)(6) to address the lack of uniformity among its Circuits?

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Attorneys: Jonathan E. Fortman (Law Office of Jonathan E. Fortman, LLC) for Donovan Middleton. David F. Walbert (Parks Chesin & Walbert, PC) for Harvester Nutrition, LLC.

Supreme Court Docket

2. Should this Court clarify the judicial discretion standard for Rule 59(e) post judgment motions to amend following a dismissal with prejudice under Rule 12(b)(6) to emphasize the judicial policy favoring decisions on the merits as reflected in this Court's precedents and in the spirit of the Federal Rules of Civil Procedure rather than setting procedural traps for litigants which deprive them of their ability to seek remedies for wrongful conduct?

Eighth Circuit decision 6/24/20

Piersing v. Domino’s Pizza Franchising LLC

20-695 (11/19/20)

Franchising &

Distribution

Petition denied 1/25/21

Response due 12/21/20

Brief in opposition Domino’s Pizza Franchising LLC 12/21/20

Reply brief Derek Piersing 1/4/21

Amicus briefs: Professor George A. Bermann

Attorneys: Leah Marie Nicholls (Public Justice, P.C.) for Derek Piersing

Supreme Court Docket

In the context of a form employment agreement, is providing that a particular set of rules will govern arbitration proceedings, without more, “clear and unmistakable evidence” of the parties’ intent to have the arbitrator decide questions of arbitrability?

Sixth Circuit decision 6/17/20

DISH Network L.L.C. v. United

States

20-743 (11/30/20)

Advertising/Consumer Protection

Petition denied – Rule 46 1/7/21

Response due 12/30/20

Attorneys: E. Joshua Rosenkranz (Orrick, Herrington &

Whether vicarious liability must be assessed in light of the four bedrock theories of common law agency, or whether a contractual term imposing performance standards on a service provider is alone a

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Sutcliffe LLP) for Dish Network LLC. Jeffrey B. Wall for the United States, et al.

Supreme Court Docket

sufficient basis for imposing vicarious liability?

Seventh Circuit decision 3/26/20

IQVIA Inc. v. Mussat

20-510 (10/16/20)

Consumer Protection

Petition denied 1/11/21

Response due 12/16/20

Brief in opposition Florence Mussat, M.D. S.C. 12/16/20

Reply brief IQVIA Inc. 12/23/20

Amicus briefs: DRI—The Voice of the Defense Bar; Product Liability Advisory Council, Inc.; Washington Legal Foundation, et al.

Attorneys: Joseph R. Palmore (Morrison & Foerster LLP) and Edward C. Eberspacher IV (Meyer Law Group LLC) for IQVIA Inc.

Supreme Court Docket

Whether a district court with jurisdiction coextensive with a state court in the district can exercise personal jurisdiction over absent class members’ claims as part of a putative class action when the court concededly could not exercise personal jurisdiction over the absent class members’ claims if they had been brought in individual suits.

Seventh Circuit decision 3/11/20

Lebamoff Enterprises, Inc. v.

Whitmer

20-47 (7/20/20)

Franchising &

Distribution

Petition denied 1/11/21

Response due 11/9/20

Brief in opposition Michigan Beer & Wine Wholesalers Association 11/9/20

Brief in opposition Gretchen Whitmer 11/9/20

Amicus briefs: 23 Wine Consumers

Attorneys: James Alexander Tanford (Epstein Cohen Seif &

Whether a state liquor law that allows in-state retailers to ship wine directly to consumers but prohibits out-of-state retailers from doing so, is invalid under the nondiscrimination principle of the Commerce Clause or is a valid exercise of the state’s Twenty-first Amendment authority to regulate the sale of alcoholic beverages within its borders.

Sixth Circuit decision 4/21/20

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Porter LLP) for Lebamoff Enterprises, Inc., et al.

Supreme Court Docket

D&G, Inc. v. C&S Wholesale Grocers,

Inc.

20-643 (11/10/20)

Antitrust

Petition denied 12/7/20

Response due 12/10/20

Attorneys: Eric F. Citron (Goldstein & Russell, P.C.) for D&G, Inc., et al. Gregory Silbert (Weil Gotshal & Manges LLP) for C&S Wholesale Grocers, Inc.

Supreme Court Docket

Whether an agreement between horizontal competitors not to compete for certain customers is a per se violation of the Sherman Act, separate from the per se theory of territorial allocation?

Eighth Circuit decision 4/27/20

Hi-Tech Pharmaceuticals,

Inc. v. Federal Trade Commission

19-1445 (6/26/20)

Consumer Protection

Petition denied 11/2/20

Response due 9/4/20

Brief in opposition FTC 9/4/20

Reply brief Hi-Tech Pharmaceuticals, Inc. 10/9/20

Attorneys: Robert F. Parsley (Miller & Martin PLLC) and Anne M. Voigts (King & Spalding LLP) for Hi-Tech Pharmaceuticals, Inc.

Supreme Court Docket

I. Can the FTC unilaterally reinterpret an injunction years after its entry to seek contempt sanctions based on a more restrictive standard found nowhere in the injunction itself or does that violate Fed. R. Civ. P. 65(d) and due process?

II. Did Hi-Tech waive all challenges to the specificity of the injunction in contempt proceedings by not previously raising an argument Hi-Tech couldn’t have foreseen?

III. Does an appellate court have discretion to find an issue waived even though the district court did not and its ruling on the merits was necessary to the judgment from which Hi-Tech appealed?

Eleventh Circuit decision 9/18/19

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National Football League, Inc. v.

Ninth Inning, Inc.

19-1098 (3/9/20)

Antitrust

Petition denied 11/2/20

Response due 7/14/20

Reply brief National Football League, Inc. 8/11/20

Respondent’s brief Ninth Inning, Inc. 7/14/20

Amicus briefs: The Chamber of Commerce of The United States of America; Antitrust Law and Business School Professors and Economists; Expert Antitrust Economists

Attorneys: Gregg H. Levy (Covington & Burling LLP) and Beth A. Wilkinson (Wilkinson Walsh LLP) for National Football League. Arun Srinivas Subramanian (Susman Godfrey LLP) for Ninth Inning, Inc., et al.

Supreme Court Docket

1. Whether an agreement among the members of a joint venture on how best to distribute the venture’s jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market?

2. Whether, notwithstanding this Court’s decision in Illinois Brick, antitrust damages claims may be brought by indirect purchasers who do not allege that they paid a price fixed by the alleged conspirators?

Ninth Circuit decision 8/13/19

Anastasia Wullschleger v.

Royal Canin U.S.A., Inc.

20-152 (8/13/20)

Advertising

Petition denied 10/19/20

Response due 9/14/20

Attorneys: James P. Frickleton (Bartimus Frickleton Robertson Rader) and Michael Patrick Morrill (Pope McGlamry) for Anastasia Wullschleger. Susanna R. Allen (Williams & Connolly LLP) and Jason M. Hans (GM Law, PC) for Royal Canin U.S.A., Inc.

Supreme Court Docket

Petitioners’ class action complaint brought in state court seeking relief under Missouri law for respondents’ marketing of fake prescription pet food products raised neither a substantial nor a disputed federal question. In ruling nonetheless that federal courts have subject-matter jurisdiction over this suit, did the court of appeals introduce chaos into this Court’s coherent jurisprudence about when federal question jurisdiction will lie over state-law claims?

Eighth Circuit decision 3/13/20

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Malwarebytes, Inc. v. Enigma Software

Group USA, LLC

19-1284 (5/13/20)

Consumer Protection

Petition denied 10/13/20

Response due 7/27/20

Attorneys: Neal Kumar Katyal (Hogan Lovells US LLP) for Malwarebytes, Inc. Terry Budd (Budd Law PLLC) for Enigma Software Group USA, LLC.

Supreme Court Docket

Whether federal courts can derive an implied exception to Section 230(c)(2)(B) immunity for blocking or filtering decisions when they are alleged to be “driven by anticompetitive animus.”

Ninth Circuit decision 12/31/19

Grace International Assembly of God v.

Gennaro Festa

20-33 (7/16/20)

RICO

Petition denied 10/5/20

Response due 8/17/20

Attorneys: Michael A. Haskel for Grace International Assembly of God

Supreme Court Docket

Whether only the entity sustaining the greatest direct injury may be considered a victim for the purposes of determining if there is closed- or open-ended continuity sufficient to establish a pattern of racketeering activity under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”)?

Whether racketeering activity committed for over two years, that inflicts multiple, distinct injuries upon multiple victims is nevertheless insufficient to form a pattern under RICO if the defendant’s related schemes have the primary goal of defrauding a limited number of victims, or if the activity concerns an ongoing project between the defendant and the primary victim?

Whether racketeering activity is insufficient to fulfill the requirements of a RICO pattern of open-ended continuity if it concerns two schemes that are “inherently terminable”, regardless of how far into the future the

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endpoint is, or how great the defendant’s incentive is to postpone it continuously?

Whether, on a Fed. R. Civ. P. 12(b)(6) motion, courts should dismiss a civil RICO claim for lack of open-ended continuity where the complaint does not imply the racketeering activity would cease, the defendant has consistently engaged in wire fraud and has also engaged in money laundering and non-predicate criminal acts, and the nature and extent of the defendant’s dealings with clients other than the plaintiff is within the defendant’s exclusive knowledge?

Second Circuit decision 12/30/19

Leigh Ann Youngblood-West

v. Aflac Incorporated

19-1455 (6/19/20)

RICO

Petition denied 10/5/20

Response due 8/3/20

Attorneys: Dimitry Joffe (Joffe Law PC) for Leigh Ann Youngblood-West. James C. Grant (Davis Wright Tremaine LLP) for Aflac Inc.

Supreme Court Docket

1. Whether the injunction enforcing the hush agreements and sealing the evidence of Aflac’s and Dan Amos’ cover-up of Dr. Amos’ serial assaults upon women, upheld by the Eleventh Circuit without the balancing test required by Rumery, violates the First Amendment?

2. Whether the Eleventh Circuit’s affirmation of the District Judge’s refusal to recuse himself despite his familial and social ties to each of the five defendants and his spouse’s interests in the subject matter has violated the Due Process Clause’s guarantee of “an impartial and disinterested tribunal,” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980), and/or “so far departed from the accepted and usual course of judicial

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proceedings . . . as to call for an exercise of this Court’s supervisory power” within the meaning of Rule 10(a) of the Court’s Rules?

Eleventh Circuit decision 12/12/19

GlaxoSmithKline LLC v. United Food

and Commercial Workers Local 1776

and Participating Employers Health and Welfare Fund

19-1444 (6/26/20)

Advertising

Petition denied 10/5/20

Response due 7/31/20

Amicus briefs: Pharmaceutical Research and Manufacturers of America

Attorneys: Nina M. Gussack (Pepper Hamilton LLP) and Jay P. Lefkowitz (Kirkland & Ellis LLP) for Glaxosmithkline LLC.

Supreme Court Docket

Whether federal law preempts state-law tort claims where a brand-name drug’s manufacturer provides the FDA with all material information in its possession at the time the FDA resolves the manufacturer’s label change request, or whether applicants must also provide the FDA with data and information that does not exist or that, under binding regulations, the FDA does not want and that the FDA did not rely upon in reaching its decision.

Third Circuit decision 12/17/19

Center for Immigration

Studies v. Cohen

19-1324 (6/1/20)

RICO

Petition denied 10/5/20

Response due 7/1/20

Respondent’s brief Richard Cohen 6/30/20

Reply brief Center for Immigration Studies 7/10/20

Attorneys: Howard William Foster (Foster PC) for Center for Immigration Studies

Supreme Court Docket

Does the Racketeer Influenced and Corrupt Organizations Act (“RICO”) require a plaintiff or prosecutor claiming an “open pattern” of racketeering to allege or prove that the defendant has injured other victims or engaged in multiple schemes?

District of Columbia Circuit decision 4/24/20

Living Essentials, 19-988 Advertising Petition denied 10/5/20 Whether the prior substantiation doctrine

20

Last updated: 4/1/2021 ©2021 CCH Incorporated. All rights reserved.

LLC V. State of Washington

(3/9/20) Response due 6/29/20

Respondent’s brief State of Washington 6/29/20

Reply brief Living Essentials, LLC 7/13/20

Amicus briefs: Goldwater Institute; Cato Institute; Reason Foundation; Liberty Justice Center; Center for Constitutional Jurisprudence; Kentucky, et al.

Attorneys: William S. Consovoy (Consovoy McCarthy PLLC) for Living Essentials, LLC and Innovation Ventures, LLC.

Supreme Court Docket

violates the First Amendment.

Court of Appeals of Washington decision 3/18/19