The U.S. Supreme Court took aim today at "the troubling specter of turning RICO into a tax collection statute." Hemi Group LLC v. City of New York, No. 08-969, slip op. at 13 n.2 (U.S. Jan. 25, 2010). But the Court coudn't muster a majority on the reason why the specter had to die (give up the ghost?).
Antitrust
FCC Aims to Shut Cable Loophole for Local Sports
By Barry Barnett on
The Federal Communications Commission has for many years given Comcast and other gigantic cable operators a pass on their duty to license their programming to competing multiple video programming distributors, specifically digital broadcast satellite outfits such as DirecTV and DISH.
But the FCC has also fussed that Comcast, et al., may have done bad by withholding…
Bad Behavior in Court Doesn’t Support Fraud Claim, Says the Fifth Circuit
By Barry Barnett on
The Fifth Circuit kept itself busy last week with Texas fraudulent inducement cases, in which Innocent Person accused Lying Person of fibbing to get IP to sign a contract with LP.
In one appeal (see post), a panel held as a matter of law that a false representation in a contract didn't count as a misrepresentation at…
Supremes Look Likely to Spurn NFL’s Bid for Antitrust Untouchability
By Barry Barnett on
Cockiness, overconfidence, pomposity. Call it what you will. Blawgletter bets you'll agree that it often gets people in trouble.
The National Football League put its high opinion of itself on display before the U.S. Supreme Court on Wednesday. It didn't look pretty.
The League argued that its member teams couldn't, as a matter of antitrust…
Friday Roundup
By Barry Barnett on
Please, please, please! Can't Blawgletter just give you a summary of the business law cases the federal courts of appeals decided today? If not, read no further. If so . . . well, you know what to do.
- Federal Circuit revives patent infringement claim for elevator manufacturer due to error in Markman claim construction.
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Antitrust Division Asks Monsanto for Soybean Data
By Barry Barnett on
The WSJ reports that the U.S. Department of Justice has demanded documents on Monsanto's Roundup Ready soybean business practices. A gene that Monsanto engineered allows Roundup Ready soybeans survive spraying with Roundup, a weed-killer. Roundup Ready accounts for 90 percent of domestic soybean crops.
The probe may relate to Monsanto's efforts to induce, persuade, cajole, force, or compel farmers…
Twombly? You Can’t Handle the Twombly!; Second Circuit Upholds Price-Fixing Complaint
By Barry Barnett on
The Second Circuit did a brave thing today. It tossed dismissal of a price-fixing complaint that centered on "parallel" conduct — the very thing the Supremes disparaged as a basis for stating a section 1 Sherman Act claim in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
The case involved allegations that major…
You Can’t Modify an Order That Ceased to Exist, Ninth Circuit Insists
By Barry Barnett on
The law gives its strivers an odd sense of reality. That goes double for those who work the courtroom.
You may put blood, sweat, and tears into a case for years, pressing to show and persuade the trier of fact that Thing A happened and that Fact A exists — and contrarily that Thing B didn't occur…
False Rep on Mortgages Didn’t Support Fraud Claim, Fifth Circuit Holds
By Barry Barnett on
The subprime residential mortgage business got much of its lending money from big banks. Wall Street in turn acquired the cash by pooling thousands of subprime mortgages into securities and selling the paper to investors.
In 2007, Lone Star bought $61 million of such securities from Barclays Bank and Barclays Capital. The deal documents…
Third Circuit Tosses Price Discrimination Claim
By Barry Barnett on
The Robinson-Patman Act came out of the Great Depression. It aimed to stop big department stores from using their buying power to crush mom and pop stores with lower retail prices. But its language applied broadly, barring any substantial discrimination in price.
Courts have tried to manage the reach of RPA by expansively applying statutory defenses, creating…