A Chance to Shine

Ninth Circuit San FranciscoHow often do fourth-year associates get an opportunity to argue before a U.S. court of appeals?

That sort of thing occurs a lot at the place where Blawgletter has worked since 1985.

It happened most recently to Amanda Bonn, an associate in Susman Godfrey's Los Angeles office. Let us tell you the story.

A Case About Fixing Prices

The lawsuit involved federal and state law claims that 3D-3C, Panasonic, Toshiba, and SanDisk fixed prices on SD digital memory cards (the SD stands for "secure digital"). The class plaintiffs also alleged anticompetitive practices in how the card-makers licensed other manufacturers to use the defendants' SD technology patents.

3D-3C, Toshiba, and the others moved to dismiss the case on the ground that the plaintiff class had filed suit too late, beyond the four-year statute of limitations for damages claims under the federal Sherman Act. The district court granted the motion.

Writing the Brief . . . then Arguing

Ms. Bonn worked on the team that lost in the Oakland district court. Three partners from SG's Houston office joined her on the SG ninja squad.

Unsurprisingly, the associate took the lead in writing the brief to the Ninth Circuit. But now an unusual SG rule — or guideline* — came into play. That rule provides, roughly, that if you wrote the argument, you make it.**

So it happened here.

On the morning of December 5, 2013, Ms. Bonn stood before a three-judge panel of the Ninth Circuit at the James R. Browning courthouse in San Francisco. Her argument orally ripped the dismissal order to pieces. Her opponent — a senior partner at Davis Polk & Wardwell — could not repair the damage. In her rebuttal, Ms. Bonn stomped on the shreds that remained.

The Result

Today the panel's ruling came out. The panel reversed the dismissal on both of the grounds that Ms. Bonn had articulated, first in the brief and then in the oral argument.

The court noted that, because the plaintiffs sought only injunctive relief, the four-year statute of limitations did not apply. The "equitable defense of laches" determines the timeliness of lawsuits under federal antitrust law for an injunction, the panel pointed out. Oliver v. 3D-3C LLC, No. 12-16421, slip op. at 7-8 (9th Cir. May 14, 2014).

Their honors next held that the "continuing violation" and "speculative damages" exceptions to limitations and laches defenses applied to the plaintiffs' claims. "[E]ach time a defendant sells its price-fixed product, the sale constitutes a new overt act causing injury to the purchaser[,] and the statute of limitations runs from the date of the act." Oliver, slip op. at 9. And "[i]t would have been pure speculation whether Plaintiffs would have been harmed by Defendants' alleged unlawful acts" before they bought SD memory cards in 2007. Id. at 11.

The court therefore reversed the dismissal and remanded the case to the district court.

About the Arguer

Ms. Bonn joined SG after a clerkship with U.S. District Judge Dean Pregerson in Los Angeles. She earned a B.A. summa cum laude from UCLA in 2006 and a J.D. from Stanford Law School in 2009.

Way to go, Amanda.


*Cf. Pirate's Code.

** The rule also applies to deposition and trial witnesses. It provides in those instances that if you write it, you take the witness.