The U.S. Supreme Court today held that the free speech rights of corporations, unions, and other artificial entities trump the limits Congress placed on campaign spending. Citizens United v. Federal Election Commission, No. 08-205 (U.S. Jan. 21, 2010).
The Washington Post here, WSJ here, NYT here, SCOTUSBLOG here.
[Texas Court of Criminal Appeals Presiding Judge Sharon Keller] did not violate any written or unwritten rules or laws. Of course that does not absolve her of the responsibility to assure that the courts remain fair and just. Her conduct, however, does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered.
D. Berchelmann, Jr., Special Master's Findings of Fact 16, Jan. 19, 2010 (declining to find that Judge Keller did wrong in connection with lethal injection of Texas death row inmate Michael Richard).
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 such programming, particularly regional sports shows such as Comcast SportsNet.
The fight turns on a "terrestrial loophole" by which the likes of Comcast avoided the normal "program access" rules.
Today the Commission, by a 4-1 vote, okayed an 87-page First Report and Order that may change all that. The FCC press release says:
The Order concludes the Commission has authority under Section 628(b) of the Communications Act to take action if a cable operator engages in unfair acts with respect to terrestrially delivered, cable affiliated programming that significantly hinder a multichannel video programming distributor from providing satellite cable programming to consumers. The Commission adopts a rebuttable presumption that an unfair act involving a terrestrially delivered, cable-affiliated regional sports network has the purpose or effect set forth in Section 628(b). The Order adopts premitting complainants to pursue program access claims similar to claims they may pursue involving satellite-delivered, cable-affiliated programming. Because the claims involving terrestrial programming require an additional factual inquiry regarding whether the unfair act significantly hinders the complainant from providing satellite cable programming to consumers, additional time will be given to present rebuttal information.
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 all if a dozen or so pages later the contract gave the fib-believer a "sole" remedy for the fib's falsity. The decision involved a $61 million buy of securities that pooled thousands of mortgage loans, including hundreds that, contrary to the rep, had gone bad before the purchase.
The next day, a different panel tossed a verdict and judgment on the ground that no evidence showed the defendant never intended to perform promises in a settlement agreement. Arete Partners LP v. Gunnerman, No. 06-51133 (5th Cir. Jan. 13, 2010).
Dissenting, Senior Circuit Judge Patrick E. Higginbotham summed up his thoughts thus:
Under Texas law[,] disagreement over contract interpretation alone is insufficient evidence that performance was never intended. While Texas courts carefully police the boundaries of contract law lest tort law run it over, it does so with its rule that even “slight circumstantial evidence of fraud, when considered with the breach of promise to perform, is sufficient to support a finding of fraudulent intent.” The majority goes much further and in doing so upsets this balance of operating spheres for tort and contract law. It does so at the expense of basic legal principles controlling fraudulent conduct.
Gunnerman’s actions, described by the district court, are sufficient evidence to support the findings of fraud. That this conduct was sanctionable does not mean that it was not also evidence of an intent not to perform an agreement made to escape the judgment day of trial. This veteran district judge, with a lifetime of trial experience, was better equipped to make this judgment than this court. More to the point, a federal district court is not a mere entry gate to the Court of Appeals. It is an independent court to which we owe a legal duty of deference. We fail that duty today. Put simply, that we might have reached a different conclusion in the first instance is of no moment. As I find no error in the judgment of the district court, and certainly not clear error, I respectfully dissent.
Id., slip op. at 16-17 (footnotes omitted).
He added for good measure:
The majority's handwringing over opening the door to claims of fraud in all contract disputes by a finding that a party in breach lacked credibility is misplaced. The district court did not do that. It simply recognized the age old "D and D" defense — ducking and dodging — in a case where it was plain.
Id. at 16 n.4.
Laws were made to be broken.
Christopher North, Blackwood's Magazine, May 1830.
Martin Luther King, Jr. (1929-68).
I know you are asking today, "How long will it take?" Somebody’s asking, "How long will prejudice blind the visions of men, darken their understanding, and drive bright-eyed wisdom from her sacred throne?" Somebody’s asking, "When will wounded justice, lying prostrate on the streets of Selma and Birmingham and communities all over the South, be lifted from this dust of shame to reign supreme among the children of men?" Somebody’s asking, "When will the radiant star of hope be plunged against the nocturnal bosom of this lonely night, plucked from weary souls with chains of fear and the manacles of death? How long will justice be crucified, and truth bear it?"
I come to say to you this afternoon, however difficult the moment, however frustrating the hour, it will not be long, because "truth crushed to earth will rise again."
How long? Not long, because "no lie can live forever."
How long? Not long, because "you shall reap what you sow."
How long? Not long:
Truth forever on the scaffold,
Wrong forever on the throne,
Yet that scaffold sways the future,
And, behind the dim unknown,
Standeth God within the shadow,
Keeping watch above his own.
How long? Not long, because the arc of the moral universe is long, but it bends toward justice.
How long? Not long, because:
Mine eyes have seen the glory of the coming of the Lord;
He is trampling out the vintage where the grapes of wrath are stored;
He has loosed the fateful lightning of his terrible swift sword;
His truth is marching on.
He has sounded forth the trumpet that shall never call retreat;
He is sifting out the hearts of men before His judgment seat.
O, be swift, my soul, to answer Him! Be jubilant my feet!
Our God is marching on.
Glory, hallelujah! Glory, hallelujah!
Glory, hallelujah! Glory, hallelujah!
His truth is marching on.
Martin Luther King, Jr., March 25, 1965, Montgomery, Alabama. Watch it here.
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 law, conspire with each other because they functioned as a single entity for purposes of producing and promoting professional football games. Their legal inability to conspire under Sherman Act section 1, they urged, immunized their agreement not to compete for sales of team logo caps from liability. Their Honors seemed doubtful that calling yourself a single entity makes it so. Transcript of Oral Argument, Am. Needle, Inc. v. Nat'l Football League , No. 08-661 (U.S. Jan. 13, 2010).
Pardon our excitement, but Eric Turkewitz has included our "Got Champerty" post in his Friday Linkworthy on New York Personal Injury Law Blog. Alright, Eric!
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.
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 to switch to another Roundup Ready variety that has longer patent protection than the current one. The patent on the latter expires in 2014.
A Monsanto press release says:
Monsanto Announces Continued Cooperation With the U.S. Department of JusticeST. LOUIS, Jan. 14, 2010 /PRNewswire-FirstCall/ — Monsanto Company (NYSE: MON) announced that the U.S. Department of Justice has issued a civil investigative demand (CID) requesting information on its soybean traits business, primarily seeking a confirmation that, as Monsanto has previously indicated, farmers and seed companies will continue to have access to the first-generation Roundup Ready® trait following patent expiry in 2014.
"Monsanto continues to cooperate with the U.S. Department of Justice inquiries, just as we have over the last several months," said Scott Partridge, Monsanto's Chief Deputy General Counsel. "We respect the thorough regulatory process. We believe our business practices are fair, pro-competitive and in compliance with the law."
Monsanto has voluntarily cooperated with regulators to address their questions about its business and the broader agriculture industry. This request represents a continuation of that process. During this time, the company has provided extensive access to millions of pages of documents to ensure that regulators' questions are addressed. Monsanto noted that it will continue to provide information that is requested of its business.
"Given the pace and scale of agriculture biotechnology adoption as well as the expiration of the Roundup Ready soybean patents in 2014, we understand why regulators would want to know more about competition in modern agriculture and how products are commercialized and used," said Partridge. "We believe that an objective review will show our business and our industry to be competitive."
In December 2009, Monsanto took the initiative to clear up growing confusion in the soybean industry by confirming that Roundup Ready soybeans would remain available after patent expiry. The company remains committed to working with the soybean industry, public and private parties alike on this matter, so that the markets served by soybean farmers are not disrupted. Information about this transition is available online here.
The U.S. Department of Justice and U.S. Department of Agriculture are conducting an ongoing review of the entire agriculture industry, including the seed and trait industry. Monsanto recently submitted comments to the Departments as part of the public comment period which ended on Dec. 31, 2009. The company's comments as well as its response to third party submissions are available on Monsanto's homepage under the "A look at the seed industry" section.
