First Circuit Permits Challenge to Massachusetts Prior Restraint on Billboards

billboardIn recognition of Free Speech Week, the WLF Legal Pulse celebrates what may be the First Amendment’s greatest virtue: it protects speech that may be unpopular due to the nature of the speaker or the medium within which it is spoken. We do so by applauding an October 20 U.S. Court of Appeals for the First Circuit ruling that addressed a prior restraint on a method of communication that some disfavor—billboards—and that predominantly carries messages some consider unworthy of full constitutional protection—advertisements.

Unbridled regulatory authority. Section 302 of the Massachusetts Code of Regulations requires all outdoor advertisers to obtain both an operating license and a permit for each specific sign. The regulation vests the Director of the Office of Outdoor Advertising (“Director”) with broad discretion to grant, withhold, or revoke licenses and permits for billboards. Section 302 enumerates several factors that the Director “may” consider, including “health, safety, and general welfare” and “not [being] in harmony with the surrounding area.” The regulation, however, states the listed factors are non-exclusive and that the Director’s authority is “[w]ithout limitation.”

Van Wagner Communications, which lobbied against the 2012 amendments to Section 302, filed a facial challenge to the regulation in federal court, arguing that it imposed an unconstitutional prior restraint on the company’s speech. The U.S. District Court for the District of Massachusetts held that because the Director had approved Van Wagner’s license and all 70 of its permit requests over two years, the company suffered no injury and thus lacked standing to sue. Continue reading

Delaware Federal Court Sanction Rulings Offer Lessons for Patent Plaintiffs and Defendants

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP, with Briana Rizzo,* Venable LLP

*Editor’s Note: With this post we welcome the participation in The WLF Legal Pulse of Featured Expert Contributor on patent litigation and policy issues, Jeffri Kaminski.

The Delaware District Court, historically known as a venue friendly to patent holders, appears ready to fight back against the litigation strategies of Patent Assertion Entities (PAEs), or “patent trolls.” While the court has traditionally disfavored imposing fees and sanctions on unsuccessful Plaintiffs [1], several recent cases signal a major shift in the judicial perspective on what District Court Judge Richard G. Andrews calls “misleading and prejudicial” tactics. [2] Most notably, Parallel Iron LLC v. NetApp Inc. and Summit Data Systems, LLC v. EMC Corporation et al solidify a growing trend in the Delaware Circuit of both judicial discontent with PAE litigation tactics and a willingness to sanction such behavior.

A trend on the rise

The U.S. Supreme Court released its groundbreaking Octane Fitness, LLC v. Icon Health & Fitness, Inc. decision on April 29, 2014, lowering the standard of 35 U.S.C. § 285 “exceptional” behavior and enabling prevailing parties to obtain attorneys’ fees for behavior that merely “stands out from others with respect to the substantive strength of a party’s litigating position […] or the unreasonable manner in which the case was litigated.” While several cases immediately following Octane Fitness retained a traditional refusal to award fees, on September 12, 2014, Judge Andrews released three pro-defendant opinions on the matter, the most significant being Parallel Iron LLC v. NetApp Inc. Continue reading

U.S. Officals Continue Push for Broader International Consensus on Competition Enforcement

Botti2Featured Expert Contributor – Antitrust & Competition, U.S. Department of Justice

Mark J. Botti, Squire Patton Boggs (US) LLP with Anthony W. Swisher, Squire Patton Boggs (US) LLP

*Editor’s Note: With this post we welcome the participation in The WLF Legal Pulse of Featured Expert Contributor on Justice Department-related competition law and policy matters, Mark Botti. Mark is co-leader of Squire Patton Boggs’s Global Antitrust & Competition Practice Group and previously spent 13 years at DOJ’s Antitrust Division. 

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In 2001, the Department of Justice Antitrust Division (DOJ) declined to block the proposed merger of General Electric and Honeywell, allowing the deal to proceed with certain limited divestitures. Announced in October of 2000, that deal would bring together two significant players in a number of related market segments, including aircraft engines, avionics, and landing gear. Despite DOJ’s decision not to block the deal outright, the European Union reached a different result, forbidding the transaction under a “conglomerate merger” theory that has long been out of favor in the United States and has drawn significant criticism in the economic and legal literature.

These diverging enforcement decisions spawned a wave of criticism directed at both jurisdictions. How were multinational businesses in a global economy to order their affairs in the face of such conflicting enforcement theories and outcomes? Were they facing a “race to the bottom,” where the most aggressive enforcers effectively held a veto over the decisions of other competition agencies? Continue reading

High Court Should Not “DIG” Dart Cherokee Basin Case

supreme courtDart Cherokee Basin Operating Co. v. Owens, which raises right-of-removal issues under the Class Action Fairness Act (CAFA), is among the more important civil justice cases being heard by the Supreme Court this term. Legal commentators are virtually unanimous in concluding that the trial court adopted an overly restrictive standard governing removal of cases from state to federal court. Yet, as Columbia Law Professor Ronald Mann noted in a recent column for ScotusBlog, questioning during the October 7 oral argument revealed that the Court may be reluctant to decide the case at all. Every question posed to counsel for Petitioner focused on “vehicle” issues, not on the merits of his CAFA arguments. Several justices even suggested that the case might be dismissed as improvidently granted—which would be a terrible mistake.

On closer examination, the procedural posture issues that troubled the Court at oral argument turn out to be insubstantial; they should not dissuade the Court from addressing the Question Presented by the petition. Moreover, as explained in Washington Legal Foundation’s amicus brief, it is critical that the Court retain jurisdiction in this case to unwind the judicially created doctrine that motivated the mistake below in the first place. Dart Cherokee provides the Court an ideal opportunity to end the rule of construction whereby federal courts continue to narrowly construe federal removal statutes against the party seeking removal, contrary to Supreme Court precedent and despite the utter lack of any textual basis for doing so. Continue reading

Update: World Trade Organization Rejects USDA Meat Rule on Country of Origin Labeling

WTOYesterday, a World Trade Organization (WTO) compliance panel publicly released its determination that the United States Department of Agriculture’s (USDA) country of origin labeling rule for certain cuts of muscle meat violated the international Technical Barriers to Trade agreement. Canada had sought such a determination, supported by other nations such as Argentina, Australia, and Japan.

News reports on this decision caught The WLF Legal Pulse‘s attention because U.S. meat producers had challenged the so-called COOL rule under the First Amendment in the U.S. Court of Appeals for the D.C. Circuit.  A number of posts (here and here) assessed the court’s July 29 en banc decision rejecting the producers’ challenge.

As we argued in the August 25 post, the majority improperly assisted the government by identifying the substantial government interests that the USDA rule advanced, including the protection of domestic farmers from foreign competition. Because of the pending proceedings at the WTO, the U.S. government had formally denied that protectionism was one of the goals of its COOL regulation.

The meat producers have asked the D.C. Circuit to reconsider its en banc holding, a motion on which the court has yet to rule. It is uncertain what impact the WTO determination will have on that request.

Federal Circuit Orders Eastern District of Texas Patent Suit Stayed

The WLF Legal Pufederal circuitlse has addressed the U.S. Court of Appeals for the Federal Circuit’s patent litigation venue jurisprudence in several posts (here and here). That court issued two rulings this past March (In re Apple Inc. and In re Barnes & Noble, Inc.) that, in our opinion, incorrectly applied factors the Federal Circuit had previously relied upon to order patent suits transferred to more appropriate venues. On October 9, a unanimous three-judge panel added another twist to the Federal Circuit’s venue case law with In re Google Inc.

Background. Last October, non-practicing entity Rockstar Consortium filed a patent infringement suit in the Eastern District of Texas (EDTX) against five companies whose technology utilized Google’s Android operating system. At the end of 2013, Google filed a declaratory judgment action against Rockstar in the Northern District of California (NDCA) that involved the same patents that Rockstar was suing to enforce in Texas. Rockstar countersued Google in the NDCA and concurrently added Google as a defendant in the EDTX action. Rockstar then moved to transfer or dismiss the California action, which the NDCA denied. Google and its five customers petitioned the EDTX to stay Rockstar’s infringement action pending an outcome in the NDCA, or to transfer the case to California. EDTX Judge James Rodney Gilstrap denied the order, and the six companies appealed. Continue reading

A Blow to Legal Ethics from an Unlikely Source

scales of justiceMark Chenoweth is General Counsel of Washington Legal Foundation

I cannot recall for sure when I first heard about the American Judicature Society (AJS), but it was probably about 20 years ago when my work-study job in college included re-shelving volumes of Judicature at the campus law library. There was a time when AJS was a pillar of the American legal establishment, led by the likes of the late Chief Justice and former Secretary of State Charles Evans Hughes, but that time has long since passed.

So, I was not surprised to hear that AJS decided to close its doors last month. After 101 years in the business of “promot[ing] fair and impartial courts through research, publications, education, and advocacy for judicial reform,” the AJS board has concluded that it can’t keep going.

There are always multiple reasons for the failure of a non-profit organization, but a primary factor is invariably the lack of revenue. And indeed AJS President Tom Leighton issued a statement suggesting that AJS’s “membership model has become more challenging” in recent years and that “new nonprofit entities with organizational and financial structures more suited to the times have joined AJS in the fight” for a fair and impartial justice system.

I had not seen anything about AJS or even thought about it for years when I heard the news of its demise, but I decided to visit its website to see what the group has been up to lately. I was shocked to discover that one source of revenue AJS has been seeking—I don’t know for how long—is money from judicial cy près awards. When an organization ostensibly devoted to fair and impartial justice, one whose slogan is “Advocating Integrity in American Justice,” resorts to hitting up judges for cy près funds, it has truly outlived its usefulness.

By all appearances, AJS does not seem to be the least bit embarrassed by this fundraising tactic. There is a prominent “Key Link” on the homepage to “Cy Pres.” I actually clicked on it thinking that AJS might have posted an eloquent explanation that I had missed about the ethical minefield represented by cy près awards. Instead, the link takes one to a page that says the following:

If you are a Federal Judge you can donate to AJS by giving Cy Pres damages amounts that were unclaimed in class action lawsuits. Simply fill in the information below to make your donation today!

And then there is a short form to fill out, though how exactly the short form suffices to accomplish a donation is not obvious. Perhaps AJS just views the form as a shorthand way of letting the organization know that cy près award funds are on the way.

In case you are not aware, cy près is highly controversial because it infects the settlement process with perverse incentives having nothing to do with the best interests of class members. An organization like AJS, which spends a significant share of its time and resources advocating for judicial ethics, should really know better than to tout such a discredited practice—let alone encourage judges to engage in it to AJS’s own benefit! At a bare minimum, AJS should counsel judges to consider carefully the ethical ramifications of awarding cy près funds to AJS before doing so. The ethical disconnect here astounds, though I trust that AJS’s hitting hard financial times has nothing to do with the oversight.

Meanwhile, in our own efforts to support fair and impartial justice, Washington Legal Foundation recently published a Working Paper by James Beck and Rachel Weil entitled “Cy Pres” Awards: Is the End Near for a Legal Remedy with No Basis in Law? In it they explain further the problems with cy près (including ethical conflicts of interest) and discuss several recent court opinions casting doubt on the practice. Rather than summarize the article here, I will simply recommend that you click on the link to check it out for yourself.

As it happens, at least once in the past year WLF itself was contacted as the designated recipient of cy près funds, but we figured out pretty quickly that the caller was looking for the Legal Foundation of Washington. Just to be clear, WLF does not accept cy près funds. So, if you are judge, please do not award us any leftover class action funds. Do, however, check out the Beck and Weil paper for a thoughtful discussion of the legal, constitutional, and ethical concerns with cy près awards in the class action litigation context.

Also published by Forbes.com at its WLF contributor site