Updates: Supreme Court Refuses to Review Philly Cab Drivers’ Suit Against Uber

supreme courtOn April 24 in Ruling on Philly Taxis’ Suit vs. Uber, Third Circuit Reaffirms Antitrust Focus on Competition, not Competitors, one of our Featured Expert Contributors on antitrust, Baker Botts partner Anthony Swisher, wrote about a U.S. Court of Appeals for the Third Circuit decision that rejected a claim for attempted monopolization lodged against Uber. The taxi association sought a writ of certiorari from the U.S. Supreme Court, which yesterday announced in an orders list that it had denied the request.

A denial of certiorari has no precedential value; it simply means that the lower court decision stands. That said, the outcome may deter taxi organizations from other jurisdictions, as well as perhaps other businesses whose market share is threatened by “gig economy” entities, from filing similar antitrust suits. In addition, the Court let stand a decision that properly elevated protection of consumers over assisting competitors, a fundamental antitrust-law concept that is under attack by some politicians, legal activists, and antitrust academics. As the Third Circuit explained:

Appellants urge the application of antitrust laws for the express opposite purpose of antitrust laws: to compensate for their loss of profits due to increased competition from Uber. However, harm to Appellants’ business does not equal harm to competition.

At Stake in “Apple v. Pepper”: Why the Supreme Court’s Direct-Purchaser Rule is a “Super-Precedent”

app storeOne of the more interesting cases the Supreme Court will hear in the new term is Apple, Inc. v. Pepper. We’ve blogged previously about the case here. Superficially, the Court will decide whether iPhone users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims. But more fundamentally, resolution of the case hinges on the continued viability of Illinois Brick Co. v. Illinois, which holds that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages.

In February, two high-level officials in the Department of Justice’s Antitrust Division floated the possibility of asking the Supreme Court to abandon Illinois Brick’s direct-purchaser rule. But the Solicitor General, in the United States’ amicus brief, insists that the question is not properly joined in the case. If either the Respondents or their amici urge the Court to overturn Illinois Brick, they will face a high hurdle. Continue reading “At Stake in “Apple v. Pepper”: Why the Supreme Court’s Direct-Purchaser Rule is a “Super-Precedent””

New “WLF Month in Review” Chronicles Our Litigation and Regulatory Filings and Results

WLF Month in ReviewWashington Legal Foundation has released the inaugural edition of a newsletter, “WLF Month in Review,” that will keep our supporters, friends, and other interested parties informed about the litigation briefs we have filed and the regulatory proceedings in which we are participating.

The August 2018 edition includes developments from June and July, and can be viewed here. If there is a particular item you are interested in, clicking on that item on the first page will take you to a full description.

Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Baker Botts LLP

As vertical issues continue to attract attention in the world of antitrust, the U.S. Supreme Court’s decision in Ohio v. American Express was a long-awaited milestone.  The outcome of the decision was not surprising—many commenters had predicted that a Court that has generally been skeptical of antitrust plaintiffs would uphold the U.S Court of Appeals for the Second Circuit’s decision in favor of American Express—but a few features of the decision were noteworthy.

Recall that the case involved Amex’s use of non-discriminatory provisions, or “NDPs,” that prevent a merchant that accepts Amex cards from engaging in strategic behavior to steer customers toward use of a different payment card that might carry a lower transaction fee for the merchant. At issue was whether the NDPs constituted unreasonable restraints that suppressed interbrand competition by preventing merchants from favoring lower-cost payment methods by customers. Continue reading “Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling”

The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech

supreme court

The U.S. Supreme Court last week issued its long-awaited opinion in National Institute of Family and Life Advocates v. Becerra. In a 5-4 decision authored by Justice Clarence Thomas, the Court held that a California law requiring licensed pro-life counselling clinics to direct their clients to abortion providers  likely violated the clinics’ free speech rights under the First Amendment. Like the famous dog that didn’t bark in the night,[*] however, Justice Thomas’s majority opinion in NIFLA is far more revealing for what it doesn’t say than for what it does say. Continue reading “The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech”

Supreme Court Justices Signal Interest in Reconsidering Agency Deference in October Term 2018

SapperGuest Commentary

By Arthur G. Sapper, Senior Counsel with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in its Washington, DC office, where he practices both appellate litigation and administrative law, with an emphasis on OSHA matters.**

Chevron deference is increasingly coming under fire from the justices of the U.S. Supreme Court. That came through loud and clear in Pereira v. Sessions, issued on June 21, 2018. Not only did the approach of the majority opinion appear to be at odds with the Court’s past approach to Chevron deference, but Justice Kennedy stated in a concurring opinion that “it seems necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts have implemented that decision.” Justice Alito asserted in dissent that “the Court, for whatever reason, is simply ignoring Chevron.” Continue reading “Supreme Court Justices Signal Interest in Reconsidering Agency Deference in October Term 2018”

A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment

montana s ctBy Amanda Voeller, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Tension between uniform federal regulation and state-level action has become more prevalent recently, and a pending certiorari petition in the U.S. Supreme Court in Christian v. Atlantic Richfield Co., illustrates well this conflict.  In Atlantic Richfield, the Atlantic Richfield Company (ARCO) has asked the U.S. Supreme Court (with the support of a WLF amicus brief) to review and overturn a Montana Supreme Court ruling that creates extreme uncertainty for businesses by allowing state courts to supersede federal environmental regulations. Continue reading “A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment”