Ninth Circuit Judges Call for En Banc Review of FTC’s Authority to Obtain Monetary Relief

Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Blaine H. Evanson, and Richard H. Cunningham, Partners, and Brandon J. Stoker, an Associate, with the firm.

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Less than two years ago, David Vladeck, a Professor at Georgetown University Law Center who served as the Director of the FTC’s Bureau of Consumer Protection from 2009 to 2012, described the argument that the FTC Act does not permit the agency to obtain equitable monetary relief as “repeatedly and uniformly rejected by every court to address it.”  Two Ninth Circuit judges, however, recently signaled that the landscape in this area may be changing in the wake of the Supreme Court’s 2017 Kokesh v. SEC decision.

In an extraordinary procedural move, on December 3, 2018, Ninth Circuit Judge Diarmuid F. O’Scannlain, joined by Judge Carlos T. Bea, wrote a special concurrence to his majority opinion in FTC v. AMG Capital Management, LLC et al., in which he described permitting the FTC to obtain monetary relief under Section 13(b) of the FTC Act as “an impermissible exercise of judicial creativity” that “contravenes the basic separation-of-powers principle that leaves to Congress the power to authorize (or to withhold) rights and remedies.”  Slip Op. at 36.  The concurrence called on the Ninth Circuit to hear the case en banc to reconsider its 2016 decision in in FTC v. Commerce Planet, Inc.,* which held that  the FTC may obtain monetary relief pursuant to Section 13(b), and walked through how the Kokesh decision calls the reasoning of Commerce Planet into question. Continue reading “Ninth Circuit Judges Call for En Banc Review of FTC’s Authority to Obtain Monetary Relief”

Games People Play: Supreme Court Can Put a Stop to an Obvious CAFA Workaround

Featured Expert Contributor, Litigation Strategies

Joe G. Hollingsworth, a Partner at Hollingsworth LLP, with Katharine R. Latimer, a Partner at the firm and a member of WLF’s Legal Policy Advisory Board.

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Earlier this fall, the Supreme Court took up the Class Action Fairness Act of 2005 (CAFA) when it granted certiorari in Home Depot U.S.A., Inc. v. Jackson, 880 F.3d 165 (4th Cir. 2018).  We’re hoping for a slap-down because the Home Depot decision and its ilk improperly deny an entire sub-category of defendants protection from abusive state court class actions.

CAFA is an important statutory safeguard that Congress enacted to rectify serious class action abuses in state courts.  See CAFA, S. Rep. No. 109-14, at 13 (2005).  Congress expressly found that ungainly and abusive interstate class actions “(A) harmed class members with legitimate claims and defendants that have acted responsibly; (B) adversely affected interstate commerce; and (C) undermined public respect for our judicial system.”  CAFA § 2(a)(2) (codified at 28 U.S.C. § 1711 notes). Continue reading “Games People Play: Supreme Court Can Put a Stop to an Obvious CAFA Workaround”

Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case

roibal_lucia_webGuest Commentary

By Lucía Roibal, an Associate with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on November 30, 2018 in the firm’s Class Dismissed  blog.

On September 6, 2018, Kimberly-Clark and affiliates filed a petition for writ of certiorari in Kimberly-Clark, et al. v. Davidson, No. 18-304, following a decision in the Ninth Circuit denying Kimberly-Clark’s motion to dismiss.  As noted in previous posts (here and here), the Ninth Circuit had resolved a split among district courts in the circuit and held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling if he or she sufficiently alleges intent to repurchase the product in the future.  In Kimberly-Clark’s petition, the companies ask the Supreme Court to resolve the issue of whether a consumer, who after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by the same representation in the future so as to establish standing to seek an injunction. Continue reading “Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case”

Update: Justices Seek Federal Government’s Views on Pending Clean Water Act Suit Petitions

supreme courtIn a November 20 Featured Expert Contributor post, Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction, Sidley Austin LLP partner Sam Boxerman and his colleague Ben Tannen discussed two related certiorari petitions pending before the U.S. Supreme Court. Both petitions ask the Court to review circuit court decisions that held discharges through groundwater are an addition of a pollutant to “waters of the United States” from a point source.

Today, the Court released an Order calling for the views of the Solicitor General on the petitions in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 18-260 (Aug. 27, 2018) and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268 (Aug. 28, 2018).

The Order asked the Solicitor General to provide his views on the petitions by Friday, January 4, 2019.

What Did We Learn From the Supreme Court Oral Argument in Apple v. Pepper?

supreme courtWe’ve blogged previously about the Supreme Court’s biggest antitrust case of the October Term 2018, Apple v. Pepper. The case asks the Court to decide whether iPhone users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only third-party app developers may bring such claims. The answer turns on whether and how the Court applies the rule announced in 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.

The Court heard oral argument in the case on Monday morning. Apple is represented by Daniel Wall of Latham & Watkins. He argues that the Illinois Brick rule is dispositive here for Apple because the plaintiffs’ antitrust claim hinges on precisely the sort of “pass through” theory of harm that Illinois Brick prohibits. Continue reading “What Did We Learn From the Supreme Court Oral Argument in Apple v. Pepper?”

Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction

 

Featured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP, with Ben Tannen, Sidley Austin LLP

The definition of waters of the United States is central to the CWA.  At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  33 U.S.C. § 1311(a).  “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,”  and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  See 33 U.S.C. §§ 1362(7), (12) and (14). Continue reading “Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction”

Expressions Hair Design Speech Case Back on Track after Detour to NY State Court

creditcardFor more than 40 years, merchants have sought the right to impose surcharges on customers who use credit cards when making purchases. They prefer customers to pay with cash because when a customer pays with a credit card, the merchant must pay a transaction fee to the credit-card issuer. To encourage cash transactions, many merchants would like to express their pricing in a way that conveys to customers that credit purchases lead to higher prices, but a number of States closely regulate how merchants may express that viewpoint.

A First Amendment challenge to such regulations reached the U.S. Supreme Court two terms ago. The Court granted merchants a preliminary victory in Expressions Hair Design v. Schneiderman, ruling that a New York pricing statute did, in fact, regulate speech and overturning a U.S. Court of Appeals for the Second Circuit decision that reached the opposite conclusion. Continue reading Expressions Hair Design Speech Case Back on Track after Detour to NY State Court”