Antitrust Law Daily High Court turns away petitions in antitrust and advertising cases but vacates TCPA decision
Monday, October 7, 2019

High Court turns away petitions in antitrust and advertising cases but vacates TCPA decision

By Jeffrey May, J.D.

Petitions concerning the scope of Federal Circuit jurisdiction over Walker Process antitrust claims and standing in a LIBOR conspiracy case denied.

Today marked the first official day of the U.S. Supreme Court's October 2019 Term, and the Court got off to a quick start removing antitrust and trade regulation petitions from its docket. The Court denied review in two pending antitrust cases. It also passed on a First Amendment challenge to a billboard ordinance; however, it vacated a decision regarding unsolicited fax advertisements. A chart lists, pending and denied petitions, along with a summary of the questions presented and the current status of each case of interest to antitrust and trade regulation attorneys for the October 2019 Term.

Antitrust petitions. The Supreme Court denied a petition filed by a bond portfolio holder seeking to overturn a decision from the U.S. Court of Appeals in New York that the portfolio holder lacked antitrust standing to assert a claim that a number of international banks conspired to fix the prices of financial instruments indexed to the London Interbank Offered Rate (LIBOR) by colluding to set an artificially inflated or depressed LIBOR value. Left standing is a Second Circuit decision, concluding that, although the petitioner suffered an antitrust injury, it could not establish antitrust standing because it did not participate in the market that respondents manipulated but instead participated in a directly related market (7 West 57th Street Realty Company, LLC v. Citigroup, Inc.Dkt. 19-148).

Also rejected were petitions asking the Court to resolve whether jurisdiction over Walker Process claims lie in the regional circuits or in the Federal Circuit. Left standing are decisions of the Fifth Circuit, declining to accept transfer and finding that the appeal—regarding allegations of monopolization through use of a patent obtained by fraud on the U.S. Patent and Trademark Office—fell within the Federal Circuit’s exclusive jurisdiction over appeals relating to patents, and of the Federal Circuit, accepting jurisdiction and affirming the district court’s summary judgment decision.

Petitioner Xitronix had argued that the decision created a conflict between the Fifth Circuit and Federal Circuit, furthering the confusion among the circuits as to the scope of the Federal Circuit’s exclusive jurisdiction. Xitronix called on the Court to hold that the regional courts of appeals have jurisdiction over appeals in Walker Process cases because the claims arise under the antitrust laws, not the patent laws, and any embedded issues of patent law in such cases do not justify sending them to the Federal Circuit (Xitronix Corp. v. KLA-Tencor Corp.Dkt. 19-58Dkt. 18-1170).

Advertising law petitions. The Supreme Court denied review of whether the U.S. Court of Appeals in Chicago departed from precedent and created a circuit split in holding that an advertiser must follow an unconstitutional law until a court concludes otherwise. Left standing is a decision of the Seventh Circuit that rejected a claim by GEFT Outdoor L.L.C., which attempted to place a digital billboard on land it leased in Westfield, Indiana, without obtaining a permit on the belief that Westfield’s ordinance precluding the billboard was an unconstitutional regulation of free speech. The City of Westfield obtained an injunction against GEFT, precluding it from any further construction on the billboard. GEFT was first required to obtain a court order invalidating the regulations before it could ignore them, according to the court (GEFT Outdoor L.L.C. v. City of Westfield, Hamilton County, IndianaDkt. 19-245).

In a Telephone Consumer Protection Act (TCPA) suit, the Court summarily vacated a decision of the U.S. Court of Appeals in Cincinnati, holding that unsolicited faxes sent to a dental office were advertisements under the TCPA. The appellate court had concluded that the fax served as a "pretext for a commercial solicitation." The decision was vacated and remanded for further consideration in light of the Supreme Court’s 2019 decision in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.

In PDR Network, the Court considered whether the Hobbs Act required a district court to adopt and follow a Federal Communication Commission (FCC) Order interpreting the term "unsolicited advertisement" as including certain faxes that promote "free" goods. The Court concluded that the determination depended upon the resolution of two preliminary issues that had to be answered on remand: (1) is a FCC Order the equivalent of a "legislative rule," which is "issued by an agency pursuant to statutory authority" and has the "force and effect of law; and (2) did the fax sender have a "prior" and "adequate" opportunity to seek judicial review of the Order (Enclarity Inc. v. FultonDkt. 18-1258).

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

Attorneys: Sarah Elaine Harrington (Goldstein & Russell, P.C.) for 7 West 57th Street Realty Company, LLC. Adam G. Unikowsky (Jenner & Block LLP) for Xitronix Corp. Beth Susan Brinkmann (Covington & Burling) for Citigroup, Inc. A. Richard M. Blaiklock (Lewis Wagner, LLP) for Geft Outdoor, LLC. Libby Yin Goodknight (Krieg DeVault LLP) for City of Westfield, Hamilton County, Indiana. Bryan J. Leitch (Morrison & Foerster LLP) for Enclarity Inc. and LexisNexis Risk Solutions, Inc. Phillip A. Bock (Bock, Hatch, Lewis & Oppenheim, LLC) for Matthew N. Fulton.

Companies: 7 West 57Th Street Realty Co., LLC; Citigroup, Inc.; Xitronix Corp.; KLA-Tencor Corp.; GEFT Outdoor, LLC; Enclarity Inc.

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