Today, the Third Circuit reversed dismissal of Broadcom’s claims that QUALCOMM tried to monopolize the market for cellular phone "chipsets" by manipulating the process for setting industry technology standards.  Broadcom alleged that QUALCOMM fooled a "standards-determining organization" into adopting a QUALCOMM-friendly standard for "Wideband CDMA".  QUALCOMM did so, according to the complaint, because it wanted to use its patents and other intellectual property in CDMA technology, which it dominated, to foreclose competition in WCDMA, which it saw as an emerging threat.  The district court dismissed the complaint; but the Third Circuit begged to differ.  Broadcom, Inc. v. QUALCOMM Inc., No. 06-4292 (3d Cir. Sept. 4, 2007).

Blawgletter notes, in case you wondered, that Verizon and Sprint use CDMA networks, that AT&T and T-Mobile use GSM networks, and that WCDMA relates to a new generation of GSM instead of CDMA.  And they say that lawyers talk funny.

Barry Barnett

Our feed so loves technology.

The Eleventh Circuit applied Georgia law today in declaring Comcast’s ban on class arbitrations unconscionable and therefore unenforceable.  Agreeing with the reasoning in Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006), the court concluded that enforcing the ban would "allow Comcast to engage in unchecked market behavior that may be unlawful.  Corporations should not be permitted to use class action waivers as a means to exclupate themseles from liability for small value claims."  Finding the ban non-severable from the rest of the arbitration clause, the court reversed the district court’s order compelling arbitration.  Dale v. Comcast Corp., No. 06-15516 (11th Cir. Sept. 4, 2007).

Barry Barnett

Who lives in a pineapple under the sea?

The Second Circuit today upheld dismissal of antitrust claims against elevator manufacturers.  Applying the pleading standard in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), to the pre-Twombly order, the court found allegations of agreements to limit competition at indefinite times and places, parallel conduct, and anticompetitive behavior in Europe insufficient to make an inference of an anticompetitive conspiracy "plausible" under section 1 of the Sherman Act.  The court also rejected the monopolization count under section 2, noting the plaintiffs’ failure to show the defendants abruptly departed from a more competition-friendly course of dealing.  In re Elevator Antitrust Litig., No. 06-3128 (2d Cir. Sept. 4, 2007).

Barry Barnett

Let our feed elevate your practice.

Kim Jong Il.  Love the suit.

The New York Times announced today a North Korean announcement that the United States will end sanctions against the renegage regime and undeclare its status as a supporter of terrorism. 

On January 29, 2002, President Bush included North Korea in the Iraq-Iran-North Korea "axis of evil" — an echo of the Germany-Italy-Japan "axis" powers before and during World War II.

The U.S. government neither admitted nor denied the news.

Barry Barnett

Our feed confesses our affection for subscribers like you.

On Friday, the Eleventh Circuit upheld an order certifying a class of guestworkers who alleged violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA).  The guestworkers — from Guatemala, Honduras, and Mexico — sought actual and statutory damages from Eller and Sons Trees, which employed them to plant trees in the southern United States under the H2-B non-immigrant visa program.  The court rejected arguments that the AWPA claims duplicated claims under the Fair Labor Standards Act, that taking the fifth in depositions made the individual plaintiffs inadequate class representatives, and that invidual issues regarding work hours and conditions predominated over common issues under Rule 23(b)(3).  Leon-Granados v. Eller & Sons Trees, Inc., No. 06-15876 (11th Cir. Aug. 31, 2007).

Blawgletter can’t wait to hear Lou Dobbs fuss and fume about a guestworker class action.

Barry Barnett

Our feed sees the forest and the trees.

Another punitive damages award bit the dust last Friday because the district court failed to instruct jurors not to punish the defendants for bad things that happened to other people.  For the second time in a week, the Ninth Circuit held that Philip Morris USA Inc. v. Williams, 127 S. Ct. 1057 (2007), required a new trial on punies.  The court affirmed the award of $1,647,355 in compensatory damages and upheld the jury’s finding that defendants Unum Provident and Paul Revere deserved punishment for denying disability benefits to Clinton Merrick, but it tossed the punitive awards of $8,000,000 and $2,000,000 against the insurers, respectively.  Merrick v. Paul Revere Life Ins. Co., Nos. 05-16380 & 05-17059 (9th Cir. Aug. 31, 2007).

Evidence at trial included the insurers’ routine of rejecting legitimate disability claims.  Under Williams, the court noted, "[t]he Due Process Clause ‘forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties.’"  Slip op. at 11124 (quoting Williams, 127 S. Ct. at 1063).  Without a Williams instruction, the court held, the jury may have punished the insurers for hassling other policyholders.

Blawgletter pauses here to mention that more reversals under Williams appear likely in the coming months.  But we wonder how much effect Williams will exert once the pipeline of pre-Williams punitive awards empties.  Jurors still may consider harm to nonparties in assessing the "reprehensibility" of the defendants’ misdeeds.

Barry Barnett

Our feed’s pipeline stays full.

The Ninth Circuit on Friday affirmed orders declaring a professional plaintiff and the law firm representing him "vexatious litigants" and requiring them to get permission before filing Americans with Disabilities Act claims in the Central District of California.  The litigant, Jarek Molski, had filed more than 400 ADA cases in California alone, and the Frankovich Group often represented him.  Molski v. Evergreen Dynasty Corp., No. 05-56452 (9th Cir. Aug. 31, 2007).

On the way to upholding the district court’s finding of vexatiousness, the court defined "frivolous litigation" as "not limited to cases in which a legal claim is entirely without merit."

It is also frivolous for a claimant who has some measure of a legitimate claim to make false factual assertions.  Just as bringing a completely baseless claim is frivolous, so too a person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.  In an adversary system, we do not fault counsel or client for putting their best arguments forward, and it is likely the unusual case in which a finding of frivolous litigation follows in the train of a legitimate legal claim.  It is a question of degree where the line falls between aggressive advocacy of legitimate claims and the frivolous assertion of false allegations.

Id., slip op. at 11076-77.  In the case before the court, Molski demanded $1,425,000 because he couldn’t get his wheelchair in position to access a restaurant toilet and bumped his hand as he exited the powder room.

Barry Barnett

Our feed works even on Labor Day.

The First Circuit yesterday reversed a summary judgment for Philip Morris on claims that it violated state law by misrepresenting cigarettes as "light" and having "lowered tar and nicotine".  The misrepresentations, the plaintiffs alleged, led them to smoke more and inhale more deeply.  The court held — contrary to the Fifth Circuit in Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir 2007) — that the Federal Cigarette Labeling and Advertising Act does not preempt such state law claims.  Good v. Altria Group, Inc., No. 06-1965 (1st Cir. Aug. 31, 2007).

Barry Barnett

Our feed smokes, but not in that way.