On April 2, the U.S. Supreme Court overruled the Environmental Protection Agency’s views, first, that federal law doesn’t authorize it to regulate emissions of carbon dioxide and other greenhouse gas and, second, that the agency would choose not to even if it can.  President Bush said the next day that Congress, instead of the EPA, should deal with the greenhouse gas problem:

Q Thank you, Mr. President. On climate change and the decision that was issued yesterday by the U.S. Supreme Court, what’s your reaction to that decision? And don’t you think that this makes some kind of broad caps on greenhouse gas emissions more or less inevitable?

THE PRESIDENT: First of all, the decision of the Supreme Court we take very seriously.  It’s the new law of the land. And secondly, we’re taking some time to fully understand the details of the decision.  As you know, this decision was focused on emissions that come from automobiles.  My attitude is, is that we have laid out a plan that will affect greenhouse gases that come from automobiles by having a mandatory fuel standard that insists upon using 35 billion gallons of alternative fuels by 2017, which will reduce our gasoline usage by 20 percent and halt the growth in greenhouse gases that emanate from automobiles.  In other words, there is a remedy available for Congress.  And I strongly hope that they pass this remedy quickly.

Full statement here.

Barry Barnett

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Blawgletter likes big words, and we cannot lie. 

Senior Circuit Judge Bruce M. Selya of the First Circuit shares our enthusiasm for sesquipedalia.  How do we know?  His latest foray, just today, includes "encincture", "aegis", "chiaroscuro", "lollygagged", and "condign".  Torres v. Commonwealth of Puerto Rico, No. 06-1771 (1st Cir. Apr. 4, 2007).  His Honor sprinkled an earlier opinion — on arbitragation — with "adscititious", "asseverational", "jejune", and "vecordious".  Cytyc Corp. v. DEKA Products Ltd. Partnership, 439 F.3d 27 (1st Cir. 2006).

He did go to Harvard, you know.

Barry Barnett

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Blawgletter just noticed these docket entries in Verizon Services Corp. v. Vonage Holdings Corp., No. 1:06-cv-00682-CMH-BRP (E.D. Va.):

Note that a hearing on Vonage’s motion happened the same day Vonage filed it and that a different district judge heard the motion and signed an order — all under seal.

Apparently, Vonage didn’t like some kind of "restraining notices" that Verizon "issued" in New York.  Perhaps the notices relate to an impending permanent injunction against Vonage’s use of VoIP technology that infringes Verizon patents.  Vonage lost a jury trial on Verizon’s patent infringement claims earlier this year.

The court originally set a hearing on Vonage’s motion to stay the injunction pending appeal on March 30 but moved it to April 6. 

Blawgletter can only guess at the need for secrecy.  We’ll keep an eye out for further developments.

Barry Barnett

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In SEC v. Merchant Capital, LLC, No. 06-10353 (11th Cir. Apr. 4, 2007), the court reversed a judgment against the Securities and Exchange Commission after a bench trial.  The SEC alleged that the defendants violated federal securities law by selling "investment contracts" that took the form of interests in "registered limited liability partnerships" or RLLPs.  The RLLPs invested in pools of consumer debt that the lenders couldn’t collect within 180 days.

The Eleventh Circuit held that the trial judge clearly erred in finding an absence of the traits that characterize "investment contracts" under SEC v. W. J. Howey Co., 328 U.S. 293 (1946), that the RLLPs constituted investment contracts (and therefore securities) under federal securities law, and that the trial judge clearly erred in finding that the defendants did not make material misstatements and omissions.

The decision illustrates the substance-over-form approach to defining what counts as a security under Howey.  It also highlights the inability of general cautionary language about investment risks to excuse failure to disclose information on specific risks that have arisen.

Barry Barnett

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The Honorable Richard Posner has now posted his thoughts on Jackpot Justice — a study about which Blawgletter expressed our own doubts last week.  Judge Posner exposes sloppiness and far worse in Jackpot‘s calculation of how much our tort system costs.  He concludes that the Jackpotian estimate "is, as I’ve tried to show, fictitious."  He of course demonstrates the fiction in spades.

Hat tip to TortsProf Blog for alerting us to His Honor’s post.

Barry Barnett

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The Third Circuit held today that civil claims under the Racketeer-Influenced and Corrupt Organizations Act didn’t run afoul of "reverse pre-emption" under the McCarran-Ferguson Act.  The M-F Act bars courts from reading any federal statute to "invalidate, impair, or supersede" any state law "enacted . . . for the purpose of regulating the business of insurance".  The court analyzed the compatability of New Jersey’s insurance laws with the RICO claims and concluded that they could co-exist in harmony.  Weiss v. First Unum Life Ins. Co., 05-5428 (3d Cir. Apr. 3, 2007).

Barry Barnett

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Bloomberg published an item today on recommendations by the Antitrust Modernization Commission.  If accurate, the report will provoke no joy among the private attorneys-general who prosecute civil cases under federal and state antitrust laws.

You can cast your eyeballs across your own copy of the full report, which the AMC just now made available and which Blawgletter hasn’t had time to read, here.

Here follows a quick run-down on the AMC’s proposals per Bloomberg:

• Repeal the 1936 law that bans sellers from granting big purchasers extraordinary price breaks.
• Overturn a 1977 U.S. Supreme Court decision (Illinois Brick) that limits federal price-fixing cases to people who bought directly from a price fixer.
• Eliminate state law cases by indirect purchasers against price fixers.
• Abolish full treble damages.

Blawgletter read the other day that the AMC’s notions of "modernization" would remove key protections for consumers and small businesses.  The Bloomberg list casts no doubt on that thesis.

Blawgletter also recalls that the membership of the nominally bipartisan AMC fairly bristles with people who oppose vigorous antitrust enforcement.  (Nary a plaintiffs’ lawyer among them!  See official profiles here.)  One could have predicted that result in light of the fact that the President appointed four members, the Senate "leadership" another four, and the House "leadership" that last four.

And we also heard that the new Congress — in contrast to the one that created the AMC in 2002 — will treat the Commission’s nostrums to a wake instead of a celebration.  Such a consummation Blawgletter devoutly wishes.

Barry Barnett

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The Federal Circuit reversed a summary judgment of infringement because it relied on an invalid "certificate of correction".  The patent related to a chemical solution that keeps heart tissue alive during surgery.  The certificate of correction changed "osmolarity" to "osmolality" — terms that refer to different ways to measure solution concentration.  The court held the certificate invalid because it broadened the patent’s reach and corrected a non-obvious error.  Central Admixture Pharmacy Services, Inc. v. Advanced Cardiac Solutions, P.C., No. 06-1307 (Fed. Cir. Apr. 3, 2007).

Barry Barnett

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