Appellate Law & Practice

CA1: Political discrimination, Massachusetts style

McCarthy v. City of Newburyport , No. 07-1438 (unpublished) affirms a grant of summary judgment in a 1983 action by a cop against his former bosses.  This cop apparently got into a bunch of spats with his bosses, and when asked to turn over his gun, tossed it onto his boss’s desk.  He was suspended.  He claims that the disciplinary actions against him were motivated by certain letters to a newspaper, but the department produced an explanation for suspending him that had nothing to do with the letters.  Equal protection and substance due process claims are denied.  State law claims about emotional distress, and defamation also fail.  Other substantive claims against other officers (for not doing things) simply fail because the plaintiff couldn’t produce any evidence that they were motivated by things that would violate the First Amendment.

CA1: states lose even more power to regulate local phone connections

Verizon New England v. ME Public Utilities, Nos. 06-2151, 06-2429 (9/6/07).  In two cases, Maine sought to enter the Maine and New Hampshire local phone markets.  The local telephone commissions want Verizon to continue to provide its competitors with access to it network at statutorily favorable rates.  See 47 U.S.C. § 251(c)(3).  In Maine utilities commission entered orders saying that Verizon had to make its network available pursuant to the Federal statute, and Verizon claimed those ordered violated the supremacy clause.  In New Hampshire, things turned out differently.  The First Circuit holds that 47 U.S.C. § 271 provides authority only to the FCC to resolve these rate issues.  Moreover, state law can’t be used to accomplish the same things.  Finally, some regulatory issues regarding the definitions of different parts of telephone networks, the 1st says are better left to the FCC.

So, the states (and perhaps the consumers) lose on pretty much all grounds. 

This case provides a nice history of telephone service after the Bell system was broken up.

CA1: no private right of action for class actions under Puerto Rican antitrust act

Diaz-Ramos v. Hyundai Motor Co., No. 06-2026 holds that the Puerto Rico Antitrust Act and the Consumer Class Action Act does not provide a provide right of action to an individual who seeks to represent a class of injured parties.  In this case, he didn’t actually demonstrate and injury in his own right.  There is some analysis of the statute, but essentially the First relies on its prior cases interpreting this statute. 

CA1: not enough changed circumstances to defeat collateral estoppel in Sherman Act case

Ramallo Brothers v. El Dia, Inc., No. 06-2512 (6/18/07).  This is a dispute between printer of glossy-newspaper inserts (the kind that you throw out when you get a newspaper) and a newspaper.  However, four years ago, the plaintiffs sued the same defendants (or rather the newspaper’s designated exclusive agent) under a similar anti-trust theory.  So, the District Court applied collateral estoppel.  On appeal, the plaintiffs argued that the “District Court was wrong” but didn’t really provide much of an argument.  The First also notes that there did not appear to be enough “changed circumstances” to defeat “collateral estoppel” writing that “for the plaintiff's argument to be successful, the new advertisements and products would have to differ in some significant respect from the old. Because they did not so differ, we upheld the dismissal of the plaintiff's second case on collateral estoppel grounds.”

CA1: unclean corporate hands can’t sue auditor for inflated earnings

Baena v. KPMG LLP, No. 05-2868, has a fairly complicated bannkruptcy-related backstory, but it doesn’t matter much as “The only claim pertinent to this appeal was brought under Mass. Gen. Laws ch. 93A §§ 1-11 (2002) [(unfair or deceptive trade practices)].”  The ...”complaint charged that KPMG had wide access to L&H's financial records and activities; that despite discovering and in some cases warning managers of serious problems, KPMG failed to alert the independent directors of L&H and instead issued unqualified opinions and certified balance sheets...”  The allegations essentially claim that KPMG closed its eyes just to retain a client.  The court first determines that the bankruptcy trustee can pursue the claims of the KPMG’s client, “which under the plan of reorganization, he is entitled to do.”  (The court notes that the question of “who” may pursue a claim is one of prudential, not Article III standing, and concludes that the question of who may pursue the claim is really one of Massachusetts law.)

The court provides a sort of neat discussion about who is harmed by an inflated earnings.  Answer: we all are.  (Well, for a long time in the 90s, it seems like the answer was: nobody.  We were all an innocent country back then, Enron was America's hero of innovation.  Alf was but a recent memory.)

Anyway, as to the substance, the court concludes under Massachusetts law, the“In pari delicto” doctrine bars the claim because, although some courts dubiously called it one of “standing,” it really means that the client of KPMG can’t sue it for its own losses when it helped in the wrong.

J. Michael McBride comments here.

CA1: arbitration, antitrust, severance, and statutory rights collide

Kristian v. Comcast Corporation, No. 04-2619, is, an interesting question regarding arbitration.  A number of Comcast subscribers sued Comcast for violations of state and federal antitrust laws (i.e. the Clayton Antitrust Act, 15 U.S.C. §§ 15 and 26 and the Massachusetts Antitrust Act, Mass. Gen. Laws. Ch. 93) through agreements to swap or exchange cable television assets ("swapping agreements").  Comcast invoked an arbitration clause that appears to have been added to their contract after it was initially entered into, and moved to compel arbitration.  The District Court found that the arbitration clause didn’t have retroactive effect.  The First reverses, holding that in determining how to construe arbitration agreements, federal law, rather than state contractual construction doctrines regarding adhesive contracts are what matter.  It finds that the amendment to the contract did, in fact, give the customers notice (as specified in 47 U.S.C. § 552(c) and 47 C.F.R. §§ 76.1602 & 76.1603 ) of the new arbitration provisions.

But, applying Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), Pacificare Health Systems, Inc. v. Book, 538 U.S. 401 (2003), and Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), the court concludes that the following parts of the agreement are invalid because they prevent vindication of a federal statutory right (but nevertheless should be arbitrated):

• a provision barring treble damages
• a provision barring recovery of attorneys fees
• a provision barring class arbitration

The court discusses how to parity state unconscionability doctrines with the Federal Arbitration Act.  However, since it concludes that the contract was severable in the sense that the federal statutes could still be litigated in the arbitration forum, under both federal and state law, the the nothing unconscionable happened.

So, Comcast wins, but loses.  WorkPlaceProf Blog extensively comments here.  As does Ross Runkel.  The plaintiffs (represneted by Barry Barnett) gloat here.

CA1: Lanham extraterritorial jurisdiction analysis

McBEE v. Delica, No. 04-2733, analysis “as a matter of first impression for this circuit, to lay out a framework for determining when such extraterritorial use of the Lanham Act is proper.”  The First rejects the approaches used by other circuits. 

CA1: “In Commerce” for purposes of the Robinson-Patman Act

Able Sales Company v. Compañía De Azúcar De Puerto Rico, No. 04-1922, this decision was written by two judges.  One recused himself.  I am not sure how this pans out under Nguen v. US, because even though a two-judge panel can transact business, the recused judge participated in oral arguments.

This one presents the issue of the meaning of the jurisdictional "in commerce" requirement of § 2(a) of the Robinson-Patman Anti-Discrimination Act, 15 U.S.C. § 13 (in particular “secondary line” violations which are are directed at injuring competition among the discriminating seller's customers).  The court holds that none of the following constitute sugar-related activities “in commerce” for purposes of the Robinson-Patman Anti-Discrimination Act, as they do not cross a state line: 1) importing raw sugar from Florida to Puerto Rico; 2) refining the raw imported sugar in Puerto Rico; and 3) selling the refined sugar to a company that was going to export it from Puerto Rico. 

CA11: the intersection of patent, antitrust, and generic drugs

A rather important case, I think, and one that deserves more than my quick read and this brief report: Schering Plough v. FTC. The FTC, under its antitrust enforcement authority, had issued an order that Schering Plough cease and desist from entering into settlement agreements with generic-drug manufacturers, under which the generic manufacturers would get some $ or thing of value and would promise not to manufacture some generic drug for a period of time. You see the concern: that what might really be going on in such a case is not a good-faith settlement of patent litigation (brought by Schering-Plough, claiming that the generic violated its patent) but instead a collusive "we'll pay you not to compete" thing.

The Eleventh Circuit, though, sets aside the FTC's order, holding in a nutshell that there was insufficient evidence that such a collusive thing was really going on (i.e., there was insufficient evidence of an "unreasonable restraint of trade"), and rejecting the FTC's use of a sort of per se rule against such settlement agreements.