U.S. Circuit Judge Jennifer Sung made the comment December 6 during oral argument in the Federal Trade Commission’s ongoing effort to block Microsoft’s $69 billion purchase of Activision Blizzard, the biggest U.S. maker of video games. (Hat tip to Josh Sisco at Politico Pro.) The FTC claimed that the merger threatened to substantially reduce competition

LuxotticaConcepcion in question

Last week, the Ninth Circuit found a way around the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). The panel held, 2-1, that a qui tam-like claim differs enough from a state-law class action claim to take it beyond Concepcion‘s preemptive reach.

The ruling means, in the Ninth Circuit, that Concepcion will not allow defendants to use arbitration clauses to defeat claims that private plaintiffs bring on behalf of the state and that defendants may therefore face individual cases, in court or arbitration, that put far more than the individuals’ claims at stake.
Continue Reading Qui Tam-Like Claim Eludes Arbitration Act Oblivion — For Now

Shutterstock_119691289A way out of arbitration?

A new Ninth Circuit decision points to a possible way to avoid arbitration clauses in the take-it-or-leave-it "adhesion" contracts that electronic retailers post on their websites.

Online vendors want you to accept their terms of service. That way, you will bind yourself to a form contract that mainly favors the

Minute Maid LabelIf you need to sue somebody for stealing your customers with false advertising, don't worry about a conflict between two federal statutes — the Food, Drug, and Cosmetic Act and the Lanham Act. No conflict exists, the Supreme Court held today.

To understand why, let us tell you . . .

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Foreign firms lose billions

Every year, non-U.S. firms overpay billions and billions of dollars for goods and services as a result of price-fixing, collusive market-splitting, and other restraints of trade. But many of the firms can get no relief in a U.S. court.

The reason? A U.S. statute — the Foreign Trade Antitrust Improvements Act (FTAIA) – generally exempts from

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.

Inhale, Inc., got a copyright certificate from the U.S. Copyright Office for a hookah that featured a skull-and-crossbones design.

A month later, Inhale sued Starbuzz Tobacco for infringing the copyright.

But Starbuzz's hookah didn't include the osseous symbol that appears often on pirates' Jolly Rogers.

The lack of bony stuff didn't matter, Inhale puffed, due to the