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Dead Reckoning posted:The entire text of Vs' argument was that some people misuse a right, and therefore no one should have it. It's stupid and facile and reactionary. Still not establishing that arbitration is fundamental, as opposed to something allowed by law in a limited capacity. Just because he phrased it a certain way doesn't change this. "He said "right" therefore arbitration is just like free speech" is entirely bullshit. Harold Fjord fucked around with this message at 18:34 on Apr 26, 2019 |
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Apr 26, 2019 18:31
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Dead Reckoning posted:The entire text of Vs' argument was that some people misuse a right, and therefore no one should have it. It's stupid and facile and reactionary. A regulation is being abused by bad faith actors to deny the less powerful their own legal rights? Nothing to be done I guess  The FAA in it's current incarnation undermines public faith in the ability of our judicial system to resolve conflicts between companies and employees / clients because it shields the companies from all forms of litigation. The agreements aren't being entered into by parties of relatively equal power and sophistication. It's a potentially worthwhile statute that has been twisted into a weapon to avoid deserved legal consequence and should be done away with imo Kawasaki Nun fucked around with this message at 18:37 on Apr 26, 2019 |
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Apr 26, 2019 18:33
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Discendo Vox posted:ooh ooh I can answer the reason for this- it's international contracts where the forum battle would become insane and the uncertainty associated would drive commerce to a halt, or where some forums that could potentially be selected are totally unequipped for the subject of dispute. There's also trade secret/market pricing rationales, though those are more squiffy. Arbitration clauses still have issues in the sophisticated international corporate area, but some work is being done on those issues that might start to address them in like a decade or so. But it's way more reasonable/feasible in that context. Lookit me learning a thing, thanks Nevvy Z posted:Still not establishing that arbitration is a Right, as opposed to something allowed by law. Just because he phrased it that way does not actually make it so. Yeah there is no more right to arbitration than there is right to mediation. Less, since the court rules generally require at least an attempt to mediate. Given DV's argument I think at minimum the right to opt out of arbitration and access a real actual court should be non-waivable up to the point of the actual arbitration hearing. Anyone wants to opt out of arbitration at any point before that, they have a right to access the actual court system. The only right relevant here is the right to due process in a court of law.
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Apr 26, 2019 18:36
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There’s also the right to create binding contracts, which is what’s conflicting with the right to due process here. Since we already agree that there are certain rights that one cannot sign away in a binding contract, though, DR's statement is still patently ridiculous non-sequitur.
Stickman fucked around with this message at 19:56 on Apr 26, 2019 |
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Apr 26, 2019 18:46
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Stickman posted:Since we already agree that there are certain rights that one cannot sign away in a binding contract, Is there any particularly specific jurisprudence on this? Obviously you can’t sell yourself into slavery as the canonical example, but in plenty of circumstances you can restrict your own right to speak, probably to own firearms - can’t agree to vote for a specific candidate, and presumably you can’t promise not to vote, but for example could you promise affirmatively to vote? Etc etc, is there a standard test for what you can’t voluntarily abrogate.
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Apr 26, 2019 19:03
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Flappy Bert posted:Is there any particularly specific jurisprudence on this? Obviously you can’t sell yourself into slavery as the canonical example, but in plenty of circumstances you can restrict your own right to speak, probably to own firearms - can’t agree to vote for a specific candidate, and presumably you can’t promise not to vote, but for example could you promise affirmatively to vote? Etc etc, is there a standard test for what you can’t voluntarily abrogate. I'd argue that "the right to access the court system" -- which is what you're waiving in arbitration -- is at least as fundamental as the right to vote, not be a slave, etc. The somewhat too-cute answer here would be that natural persons have a non-waivable right to access the court system but corporations do not.
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Apr 26, 2019 19:22
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Discendo Vox posted:ooh ooh I can answer the reason for this- it's international contracts where the forum battle would become insane and the uncertainty associated would drive commerce to a halt, or where some forums that could potentially be selected are totally unequipped for the subject of dispute. There's also trade secret/market pricing rationales, though those are more squiffy. Arbitration clauses still have issues in the sophisticated international corporate area, but some work is being done on those issues that might start to address them in like a decade or so. But it's way more reasonable/feasible in that context. I don’t really want to ban commercial arbitration, but to play devil’s advocate here I don’t understand why the need for clarity about what forum and law will govern a disputed requires arbitration in a world where courts generally enforce both forum selection and choice of law clauses.
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Apr 26, 2019 19:30
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Hieronymous Alloy posted:I'd argue that "the right to access the court system" -- which is what you're waiving in arbitration -- is at least as fundamental as the right to vote, not be a slave, etc. I mean it's basically a violation of the fundamental principle of the rule of law that in many cases you can't get a job or buy and use a product unless you waive your access to the legal system. If you view the rule of law and everyone's equal access to recourse through the justice system as a fundamental part of a democratic society on par with the right to vote, then imposing binding arbitration as non-negotiable boilerplate in things like employment contracts and EULAs is absolutely imposing the loss of a fundamental right. Of course, it's not like the rule of law has ever been equally applied before now, so you can criticize this from a practical standpoint, but then again it's not like the right to vote has ever been equally applied either, and that's still seen as pretty fundamental to the system.
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Apr 26, 2019 19:55
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vyelkin posted:I mean it's basically a violation of the fundamental principle of the rule of law that in many cases you can't get a job or buy and use a product unless you waive your access to the legal system. If you view the rule of law and everyone's equal access to recourse through the justice system as a fundamental part of a democratic society on par with the right to vote, then imposing binding arbitration as non-negotiable boilerplate in things like employment contracts and EULAs, is absolutely imposing the loss of a fundamental right. Yeah, exactly. A number of "fundamental rights" are aspirational more than they are actual, and voting is a good example of that.
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Apr 26, 2019 19:57
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Hieronymous Alloy posted:Given DV's argument I think at minimum the right to opt out of arbitration and access a real actual court should be non-waivable up to the point of the actual arbitration hearing. Anyone wants to opt out of arbitration at any point before that, they have a right to access the actual court system. The only right relevant here is the right to due process in a court of law. Which isn't to say that courts/arbitration (aka private conflict resolution courts, as far as I can tell) shouldn't be able to fairly settle disputes, just that its not a fundamental right. ilkhan fucked around with this message at 20:26 on Apr 26, 2019 |
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Apr 26, 2019 20:22
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ilkhan posted:There's no right to due process of law in a conflict between two private parties. The "binding" part of a "binding contract" is backed by the force of law. Either party has the right to invoke that force of law through a civil suit, to which due process rights certainly apply. I'm failing to see how that's not a "right to due process". E: If the conflict between private parties doesn't involve a binding contract or violation of civil/criminal statutes or constitutional rights, then sure. But that's not the sort of situation we're talking about.
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Apr 26, 2019 20:32
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ilkhan posted:There's no right to due process of law in a conflict between two private parties. uhh are you sure about that Like, even Robert Nozick supports the idea that courts should enforce private contracts. Unless I'm misunderstanding you (which is quite possible!) you're verging into some real an-cap wilderness there.
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Apr 26, 2019 20:37
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Ogmius815 posted:I don’t really want to ban commercial arbitration, but to play devil’s advocate here I don’t understand why the need for clarity about what forum and law will govern a disputed requires arbitration in a world where courts generally enforce both forum selection and choice of law clauses. Depends on the court, and depending on the court you might get different results as to forum selection and choice of law. Plus, those clauses often aren't actually that clear to begin with, and their application may be dependent on events that occur later. Certainty via an arbitration clause has value. (None of this means that arbitration via adhesion or the FAA's overbroad interpretation are good things, just that arbitration does have actual value.)
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Apr 26, 2019 20:45
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Dead Reckoning posted:The entire text of Vs' argument was that some people misuse a right, and therefore no one should have it. That is not my argument, because arbitration isn't a human right or a constitutional right. (Talk about facile misunderstandings, when I said they lose the right to make an argument, I did not mean literally they cannot make the argument, I meant that the argument has lost any credibility). It's a statutory "right" that was enacted, but did not have to be enacted, based on arguments that it was in the public interest. The way it was abused is not in the public interest, and my argument is that there is no way to fix it to ensure it is in the public interest (Kagan's dissent discusses how the conservatives on the court have blatantly ignored the language and intent of the bill in order to interpret it however corporations want).
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Apr 26, 2019 21:06
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Discendo Vox posted:Imagine, e.g., being a shipping company and having no guarantee that a loss of American and Chinese freight on a ship registered in Greece to your British holding company bound for, say, Libya, wouldn't wind up with a judgement issued out of a Libya court. Or China. Or America. Or Greece. Or all of the above simultaneously. International commerce would quickly grind to a halt. But...Libya, China, Greece, or the UK aren't subject to US jurisdiction and the FAA isn't binding on their courts 
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Apr 26, 2019 21:09
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VitalSigns posted:But...Libya, China, Greece, or the UK aren't subject to US jurisdiction and the FAA isn't binding on their courts I'm discussing the utility of binding international arbitration in general. Different organizations and conventions can apply, not just the FAA. Ogmius815 posted:I don’t really want to ban commercial arbitration, but to play devil’s advocate here I don’t understand why the need for clarity about what forum and law will govern a disputed requires arbitration in a world where courts generally enforce both forum selection and choice of law clauses. this article provides a very very basic overview, but basically, no, in the international commercial sector, courts from multiple jurisdictions may indeed not respect such clauses- and there's also little clarity about what happens with judgement enforcements. The New York Convention, which covers most of the world, basically ensures that parties and relevant state governments don't gently caress with legal proceedings. I'm not saying any of this to guarantee that international commercial arbitration is good, or that it doesn't have some very severe issues (for example, there's not a consistent "caselaw" involved even within a given arbitration organization, so outcomes can feel unpredictable in some sectors). But it's very different from the abusive, one-sided nature of shrinkwrap statement forced arbitration against the little guy, and if you suddenly did away with it, you'd have to rush to replace a colossal legal scaffold that spans the globe.
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Apr 26, 2019 21:32
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Stickman posted:E: If the conflict between private parties doesn't involve a binding contract or violation of civil/criminal statutes or constitutional rights, then sure. But that's not the sort of situation we're talking about.
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Apr 26, 2019 23:03
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Discendo Vox posted:I'm discussing the utility of binding international arbitration in general. Different organizations and conventions can apply, not just the FAA. If they don't respect other choice of venue clauses or other courts, how is arbitration any different, it's just another clause specifying a "venue" and "court" that countries can disregard just as easily
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Apr 26, 2019 23:09
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VitalSigns posted:If they don't respect other choice of venue clauses or other courts, how is arbitration any different, it's just another clause specifying a "venue" and "court" that countries can disregard just as easily The New York Convention and related international agreements. It's, uh, in my post. It applies to governments. Private contract clauses don't.
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Apr 27, 2019 02:46
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Discendo Vox posted:I'm discussing the utility of binding international arbitration in general. Different organizations and conventions can apply, not just the FAA. You don't need arbitration if the WTO has actual courts that are run on more than grift and the whim of an arbiter.
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Apr 27, 2019 04:43
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Evil Fluffy posted:You don't need arbitration if the WTO has actual courts that are run on more than grift and the whim of an arbiter. I'm not too familiar with the WTO (the prior posts were nearing the edges of my familiarity with international trade arbitration), but the only analogous organ I'm aware of is for states, not private parties.
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Apr 27, 2019 05:59
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Hieronymous Alloy posted:I'd argue that "the right to access the court system" -- which is what you're waiving in arbitration -- is at least as fundamental as the right to vote, not be a slave, etc. Yea. Wish there was a way to separate whether a person is a person and not a person.... What are we to do?
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Apr 27, 2019 23:44
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 Opinion! Unanimous opinion about the scope of sovereign immunity for the TVA, which is not that applicable of a case. GARY THACKER, ET UX., PETITIONERS v. TENNESSEE VALLEY AUTHORITY Holding / Majority Opinion: Federal law provides that the Tennessee Valley Authority (TVA), a Government-owned corporation supplying electric power to millions of Americans, “[m]ay sue and be sued in its corporate name.” That provision serves to waive sovereign immunity from suit. Today, we consider how far the waiver goes. We reject the view, adopted below and pressed by the Government, that the TVA remains immune from all tort suits arising from its performance of so-called discretionary functions. The TVA’s sue-and-be-sued clause is broad and contains no such limit. Under the clause—and consistent with our precedents construing similar ones—the TVA is subject to suits challenging any of its commercial activities. The law thus places the TVA in the same position as a private corporation supplying electricity. But the TVA might have immunity from suits contesting one of its governmental activities, of a kind not typically carried out by private parties. We remand this case for consideration of whether that limited immunity could apply here. … [T]he TVA is something of a hybrid, combining traditionally governmental functions with typically commercial ones. On the one hand, the TVA possesses powers and responsibilities reserved to sovereign actors. It may, for example, “exercise the right of eminent domain” and “condemn all property” necessary to carry out its goals. Similarly, it may appoint employees as “law enforcement agents” with powers to investigate crimes and make arrests. But on the other hand, much of what the TVA does could be done—no, is done routinely—by non-governmental parties. Just as the TVA produces and sells electricity in its region, privately owned power companies (e.g., Con Edison, Dominion Energy) do so in theirs. As to those commonplace commercial functions, the emphasis in the oft-used label “public corporation” rests heavily on the latter word. In establishing this mixed entity, Congress decided (as it had for similar government businesses) that the TVA could “sue and be sued in its corporate name.” Without such a clause, the TVA (as an entity of the Federal Government) would have enjoyed sovereign immunity from suit. By instead providing that the TVA could “be sued,” Congress waived at least some of the corporation’s immunity. (Just how much is the question here.) Slightly more than a decade after creating the TVA, Congress enacted the Federal Tort Claims Act of 1946 (FTCA), to waive immunity from tort suits involving agencies across the Government. That statute carved out an exception for claims based on a federal employee’s performance of a “discretionary function.” But Congress specifically excluded from all the FTCA’s provisions—including the discretionary function exception— “[a]ny claim arising from the activities of the [TVA].” This case involves such a claim. See App. 22–33 (Complaint). One summer day, TVA employees embarked on work to replace a power line over the Tennessee River. When a cable they were using failed, the power line fell into the water. The TVA informed the Coast Guard, which announced that it was closing part of the river; and the TVA itself positioned two patrol boats near the downed line. But several hours later, just as the TVA workers began to raise the line, petitioner Gary Thacker drove his boat into the area at high speed. The boat and line collided, seriously injuring Thacker and killing a passenger. Thacker sued for negligence, alleging that the TVA had failed to “exercise reasonable care” in “assembl[ing] and install[ing] power lines” and in “warning boaters” like him “of the hazards it created.” The TVA moved to dismiss the suit, claiming sovereign immunity. The District Court granted the motion. It reasoned that the TVA, no less than other government agencies, is entitled to immunity from any suit based on an employee’s exercise of discretionary functions. And it thought that the TVA’s actions surrounding the boating accident were discretionary because “they involve[d] some judgment and choice.” Ibid. The Court of Appeals for the Eleventh Circuit affirmed on the same ground. According to the circuit court, the TVA has immunity for discretionary functions even when they are part of the “TVA’s commercial, power-generating activities.” … We granted certiorari to decide whether the waiver of sovereign immunity in TVA’s sue-and-be-sued clause is subject to a discretionary function exception, of the kind in the FTCA. We hold it is not. Nothing in the statute establishing the TVA (again, the TVA Act for short) expressly recognizes immunity for discretionary functions. As noted above, that law provides simply that the TVA “[m]ay sue and be sued.” Such a sue-and-be-sued clause serves to waive sovereign immunity otherwise belonging to an agency of the Federal Government. By the TVA Act’s terms, that waiver is subject to “[e]xcept[ions] as “specifically provided in” the statute itself. But the TVA Act contains no exceptions relevant to tort claims, let alone one turning on whether the challenged conduct is discretionary. … But that is not quite the end of the story because in Federal Housing Administration v. Burr, 309 U. S. 242 (1940), this Court recognized that a sue-and-be-sued clause might contain “implied exceptions.” ...In particular, Burr stated, a court should take that route if one of the following circumstances is “clearly shown”: either the “type[] of suit [at issue is] not consistent with the statutory or constitutional scheme” or the restriction is “necessary to avoid grave interference with the performance of a governmental function.” … At the outset, we balk at using Burr to provide a government entity excluded from the FTCA with a replica of that statute’s discretionary function exception. Congress made a considered decision not to apply the FTCA to the TVA (even as Congress applied that legislation to some other public corporations, see 28 U. S. C. §2679(a)). The Government effectively asks us to negate that legislative choice. Or otherwise put, it asks us to let the FTCA in through the back door, when Congress has locked the front one. ... Burr and its progeny thus require a far more refined analysis than the Government offers here. The reasons those decisions give to recognize a restriction on a sue-and-be-sued clause do not justify the wholesale incorporation of the discretionary function exception. As explained above, the “constitutional scheme” has nothing to say about lawsuits challenging a public corporation’s discretionary activity—except to leave their fate to Congress. For its part, Congress has not said in enacting sue-and-be-sued clauses that it wants to prohibit all such suits—quite the contrary. And no concern for “governmental functions” can immunize discretionary activities that are commercial in kind. When the TVA or similar body operates in the marketplace as private companies do, it is as liable as they are for choices and judgments. The possibility of immunity arises only when a suit challenges governmental activities—the kinds of functions private parties typically do not perform. And even then, an entity with a sue-and-be-sued clause may receive immunity only if it is “clearly shown” that prohibiting the “type[] of suit [at issue] is necessary to avoid grave interference” with a governmental function’s performance. That is a high bar. All that remains is to decide this case in accord with what we have said so far. But as we often note at this point, “we are a court of review, not of first view.” In wrongly relying on the discretionary function exception, the courts below never addressed the issues we have found relevant in deciding whether this suit may go forward. … We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Lineup: Kagan, unanimous. https://www.supremecourt.gov/opinions/18pdf/17-1201_j426.pdf [internal citations inconsistently omitted throughout]
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May 1, 2019 02:47
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The Supreme Court is asking the Solicitor General if it should grant cert on Oracle v. Google: https://www.reuters.com/article/us-usa-court-google-oracle-idUSKCN1S51CQ
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May 2, 2019 07:26
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I know can of worms and etc but I really wish we could properly bill these large corps for the time they suck up in our justice system slugging out this stuff.
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May 2, 2019 07:38
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Corporate taxes? (More of them!)
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May 2, 2019 09:06
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Javid posted:I know can of worms and etc but I really wish we could properly bill these large corps for the time they suck up in our justice system slugging out this stuff.
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May 2, 2019 15:44
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Legal fees are already taxed, aren't they? Is it a flat rate or are there brackets?
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May 2, 2019 15:49
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ShadowHawk posted:The Supreme Court is asking the Solicitor General if it should grant cert on Oracle v. Google: https://www.reuters.com/article/us-usa-court-google-oracle-idUSKCN1S51CQ god please no just let this case die already
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May 2, 2019 15:50
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haveblue posted:Legal fees are already taxed, aren't they? Is it a flat rate or are there brackets? Here, let me explain the income tax system to you,
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May 2, 2019 16:05
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a 9-0 case wherein the decision is communicated by the justices taking turns farting into the Oracle CEO's face in morse code
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May 2, 2019 21:59
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Javid posted:I know can of worms and etc but I really wish we could properly bill these large corps for the time they suck up in our justice system slugging out this stuff. Corporate taxation technically pays for it. ...or would if major corporations actually paid taxes.
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May 2, 2019 22:51
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Javid posted:I know can of worms and etc but I really wish we could properly bill these large corps for the time they suck up in our justice system slugging out this stuff. You do pay a fee when you file complaints and appeals. It doesn’t cover all the costs associated with handling the case but the courts are a public service not a business...
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May 3, 2019 12:44
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Nissin Cup Nudist posted:god please no Court didn’t decide the fair use issue last time so it’s kinda on them that this is back.
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May 3, 2019 13:46
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For the first time I am aware of, Kavanaugh broke from the conservatives and wrote a 5-4 majority opinion that the liberals joined. The SCOTUS in his opinion ruled that iphone owners can sue Apple under antitrust law for operating a monopoly in their app store. https://www.cnn.com/2019/05/13/tech/apple-app-store-supreme-court/index.html quote:Justice Brett Kavanaugh, in the majority opinion, said that when "retailers engage in unlawful anticompetitive conduct that harms consumers," people buying those companies' products have the right to hold the businesses to account.
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May 13, 2019 17:51
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Rigel posted:For the first time I am aware of, Kavanaugh broke from the conservatives and wrote a 5-4 majority opinion that the liberals joined. I'm immediately suspicious of what this is supposed to be cited by in the future because of a distrust of the Heritage/Federalist Society justices, but as far as I know, Facebook doesn't have an app store. Amazon does but I don't think you could make the same argument against them as you could against Apple or even Google. So, uh, good clean ruling?
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May 13, 2019 18:14
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It’s actually a pretty straightforward opinion, and my guess is the reason Kav and the liberals sided in this case is because they did not touch the merits of the claim.
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May 13, 2019 18:29
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Opinions! APPLE INC. v. PEPPER ET AL. Holding / Majority Opinion: In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where iPhone owners can purchase iPhone applications from Apple. Those “apps” enable iPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. “There’s an app for that” has become part of the 21st-century American lexicon. In this case, however, several consumers contend that Apple charges too much for apps. The consumers argue, in particular, that Apple has monopolized the retail market for the sale of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices. A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumer-plaintiffs in this case may not sue Apple because they supposedly were not “direct purchasers” from Apple under our decision in Illinois Brick Co. v. Illinois, 431 U. S. 720, 745–746 (1977). We disagree. The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws. We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit. … The sole question presented at this early stage of the case is whether these consumers are proper plaintiffs for this kind of antitrust suit—in particular, our precedents ask, whether the consumers were “direct purchasers” from Apple. Illinois Brick, 431 U. S., at 745–746. It is undisputed that the iPhone owners bought the apps directly from Apple. Therefore, under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. … Our decision in Illinois Brick established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers. The facts of Illinois Brick illustrate the rule. Illinois Brick Company manufactured and distributed concrete blocks. Illinois Brick sold the blocks primarily to masonry contractors, and those contractors in turn sold masonry structures to general contractors. Those general contractors in turn sold their services for larger construction projects to the State of Illinois, the ultimate consumer of the blocks. The consumer State of Illinois sued the manufacturer Illinois Brick. The State alleged that Illinois Brick had engaged in a conspiracy to fix the price of concrete blocks. According to the complaint, the State paid more for the concrete blocks than it would have paid absent the price-fixing conspiracy. The monopoly overcharge allegedly flowed all the way down the distribution chain to the ultimate consumer, who was the State of Illinois. This Court ruled that the State could not bring an antitrust action against Illinois Brick, the alleged violator, because the State had not purchased concrete blocks directly from Illinois Brick. The proper plaintiff to bring that claim against Illinois Brick, the Court stated, would be an entity that had purchased directly from Illinois Brick. The bright-line rule of Illinois Brick, as articulated in that case and as we reiterated in UtiliCorp, means that indirect purchasers who are two or more steps removed from the antitrust violator in a distribution chain may not sue. By contrast, direct purchasers—that is, those who are “the immediate buyers from the alleged antitrust violators”—may sue. For example, if manufacturer A sells to retailer B, and retailer B sells to consumer C, then C may not sue A. But B may sue A if A is an antitrust violator. And C may sue B if B is an antitrust violator. That is the straightforward rule of Illinois Brick. In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. … All of that seems simple enough. But Apple argues strenuously against that seemingly simple conclusion, and we address its arguments carefully. For this kind of retailer case, Apple’s theory is that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not that party sells the good or service directly to the complaining party. Apple says that its theory accords with the economics of the transaction. Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple. We see three main problems with Apple’s “who sets the price” theory. First, Apple’s theory contradicts statutory text and precedent. As we explained above, the text of §4 broadly affords injured parties a right to sue under the antitrust laws. And our precedent in Illinois Brick established a bright-line rule where direct purchasers such as the consumers here may sue antitrust violators from whom they purchased a good or service. … Second, in addition to deviating from statutory text and precedent, Apple’s proposed rule is not persuasive economically or legally. Apple’s effort to transform Illinois Brick from a direct-purchaser rule to a “who sets the price” rule would draw an arbitrary and unprincipled line among retailers based on retailers’ financial arrangements with their manufacturers or suppliers. … Third, if accepted, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. … We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit. It is so ordered. Lineup: Kavanaugh, joined by Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Gorsuch, joined by Roberts, Thomas, and Alito. Other Opinions: Dissent (Gorsuch): More than 40 years ago, in Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977), this Court held that an antitrust plaintiff can’t sue a defendant for overcharging someone else who might (or might not) have passed on all (or some) of the overcharge to him. Illinois Brick held that these convoluted “pass on” theories of damages violate traditional principles of proximate causation and that the right plaintiff to bring suit is the one on whom the overcharge immediately and surely fell. Yet today the Court lets a pass-on case proceed. It does so by recasting Illinois Brick as a rule forbidding only suits where the plaintiff does not contract directly with the defendant. This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity. That’s not how antitrust law is supposed to work, and it’s an uncharitable way of treating a precedent which— whatever its flaws—is far more sensible than the rule the Court installs in its place. To understand Illinois Brick, it helps to start with the case that paved the way for that decision: Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968). Hanover sued United, a company that supplied machinery dissenting Hanover used to make shoes. Hanover alleged that United’s illegal monopoly in the shoe-making-machinery market had allowed it to charge supracompetitive prices. As damages, Hanover sought to recover the amount it had overpaid United for machinery. United replied that Hanover hadn’t been damaged at all because, United asserted, Hanover had not absorbed the supposedly “illegal overcharge” but had “passed the cost on to its customers” by raising the prices it charged for shoes….This Court rejected that [passing on] defense. … Illinois Brick was just the other side of the coin. With Hanover Shoe having held that an antitrust defendant could not rely on a pass-on theory to avoid damages, Illinois Brick addressed whether an antitrust plaintiff could rely on a pass-on theory to recover damages….Better again, the Court decided, to adhere to traditional rules of proximate causation and allow only the first affected customers—the building contractors—to sue for the monopoly rents they had directly paid. … The lawsuit before us depends on just the sort of pass-on theory that Illinois Brick forbids. The plaintiffs bought apps from third-party app developers (or manufacturers) in Apple’s retail Internet App Store, at prices set by the developers. The lawsuit alleges that Apple is a monopolist retailer and that the 30% commission it charges developers for the right to sell through its platform represents an anticompetitive price. The problem is that the 30% commission falls initially on the developers. So if the commission is in fact a monopolistic overcharge, the developers are the parties who are directly injured by it. … Seizing on Illinois Brick’s use of the shorthand phrase “direct purchasers” to describe the parties immediately injured by the monopoly overcharge in that case, the Court (re)characterizes Illinois Brick as a rule that anyone who purchases goods directly from an alleged antitrust violator can sue, while anyone who doesn’t, can’t. Under this revisionist version of Illinois Brick, the dispositive question becomes whether an “intermediary in the distribution chain” stands between the plaintiff and the defendant. And because the plaintiff app purchasers in this case happen to have purchased apps directly from Apple, the Court reasons, they may sue. This exalts form over substance. https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf COCHISE CONSULTANCY, INC., ET AL. v. UNITED STATES EX REL. HUNT Holding / Majority Opinion: The False Claims Act contains two limitations periods that apply to a “civil action under section 3730”—that is, an action asserting that a person presented false claims to the United States Government. 31 U. S. C. §3731(b). The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period. This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are “civil action[s] under section 3730” and that the limitations periods in §3731(b) apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit cannot be deemed the official of the United States. We agree, and therefore affirm. … At issue here is the Act’s statute of limitations, which provides: “(b) A civil action under section 3730 may not be brought— “(1) more than 6 years after the date on which the violation of section 3729 is committed, or “(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, “whichever occurs last.” §3731(b) On November 27, 2013, respondent Billy Joe Hunt filed a complaint alleging that petitioners—two defense contractors (collectively, Cochise)—defrauded the Government by submitting false claims for payment under a subcontract to provide security services in Iraq “from some time prior to January 2006 until early 2007.” App. 43a. A little less than three years before bringing his complaint, Hunt was interviewed by federal agents about his role in an unrelated contracting fraud in Iraq. Hunt claims to have revealed Cochise’s allegedly fraudulent scheme during this November 30, 2010, interview. The United States declined to intervene in Hunt’s action, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt conceded that the 6-year limitations period in §3731(b)(1) had elapsed before he filed suit on November 27, 2013. But Hunt argued that his complaint was timely under §3731(b)(2) because it was filed within 3 years of the interview in which he informed federal agents about the alleged fraud (and within 10 years after the violation occurred). The District Court dismissed the action. It considered three potential interpretations of §3731(b). Under the first interpretation, §3731(b)(2) does not apply to a relator-initiated action in which the Government elects not to intervene, so any such action must be filed within six years after the violation. Under the second interpretation, §3731(b)(2) applies in non-intervened actions, and the limitations period begins when the relator knew or should have known the relevant facts. Under the third interpretation, §3731(b)(2) applies in non-intervened actions, and the limitations period begins when “the official of the United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts. The District Court rejected the third interpretation and declined to choose between the first two because it found that Hunt’s complaint would be untimely under either. The Court of Appeals reversed and remanded, adopting the third interpretation. … The first question before us is whether the limitations period in §3731(b)(2) is available in a relator-initiated suit in which the Government has declined to intervene. If so, the second question is whether the relator in such a case should be considered “the official of the United States” whose knowledge triggers §3731(b)(2)’s 3-year limitations period. Section 3731(b) sets forth two limitations periods that apply to “civil action[s] under section 3730.” Both Government-initiated suits under §3730(a) and relator-initiated suits under §3730(b) are “civil action[s] under section 3730.” Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits. … Cochise’s fallback argument is that the relator in a non-intervened suit should be considered “the official of the United States charged with responsibility to act in the circumstances,” meaning that §3731(b)(2)’s 3-year limitations period would start when the relator knew or should have known about the fraud. But the statute provides no support for reading “the official of the United States” to encompass a private relator. First, a private relator is not an “official of the United States” in the ordinary sense of that phrase….Second, the statute refers to “the” official “charged with responsibility to act in the circumstances.” …[P]rivate relators are not “charged with responsibility to act” in the sense contemplated by §3731(b), as they are not required to investigate or prosecute a False Claims Act action. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Lineup: Thomas, unanimous. https://www.supremecourt.gov/opinions/18pdf/18-315_1b8e.pdf FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT Holding / Majority Opinion: This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U. S. 410 (1979). … Petitioner Franchise Tax Board of California (Board), the state agency responsible for assessing personal income tax, suspected that Hyatt’s move [from California to Nevada] was a sham. Thus, in 1993, the Board launched an audit to determine whether Hyatt underpaid his 1991 and 1992 state income taxes by misrepresenting his residency. In the course of the audit, employees of the Board traveled to Nevada to conduct interviews with Hyatt’s estranged family members and shared his personal information with business contacts. In total, the Board sent more than 100 letters and demands for information to third parties. The Board ultimately concluded that Hyatt had not moved to Nevada until April 1992 and owed California more than $10 million in back taxes, interest, and penalties. Hyatt protested the audit before the Board, which upheld the audit after an 11-year administrative proceeding. The appeal of that decision remains pending before the California Office of Tax Appeals. In 1998, Hyatt sued the Board in Nevada state court for torts he alleged the agency committed during the audit. After the trial court denied in part the Board’s motion for summary judgment, the Board petitioned the Nevada Supreme Court for a writ of mandamus ordering dismissal on the ground that the State of California was immune from suit. The Board argued that, under the Full Faith and Credit Clause, Nevada courts must apply California’s statute immunizing the Board from liability for all injuries caused by its tax collection. ... We granted, for a third time, the Board’s petition for certiorari, 585 U. S. ___ (2018). The sole question presented is whether Nevada v. Hall should be overruled. … Hall held that the Constitution does not bar private suits against a State in the courts of another State. The opinion conceded that States were immune from such actions at the time of the founding, but it nonetheless concluded that nothing “implicit in the Constitution” requires States “to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted.” … Hall’s determination that the Constitution does not contemplate sovereign immunity for each State in a sister State’s courts misreads the historical record and misapprehends the “implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.” ... [A]t the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitution’s use of the term “States” reflects both of these kinds of traditional immunity. And the States retained these aspects of sovereignty, “except as altered by the plan of the Convention or certain constitutional Amendments.” … One constitutional provision that abrogated certain aspects of this traditional immunity was Article III, which provided a neutral federal forum in which the States agreed to be amenable to suits brought by other States.…The States, in ratifying the Constitution, similarly surrendered a portion of their immunity by consenting to suits brought against them by the United States in federal courts. … The Eleventh Amendment [“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.] confirmed that the Constitution was not meant to “rais[e] up” any suits against the States that were “anomalous and unheard of when the Constitution was adopted.” … Consistent with this understanding of state sovereign immunity, this Court has held that the Constitution bars suits against nonconsenting States in a wide range of cases...Despite this historical evidence that interstate sovereign immunity is preserved in the constitutional design, Hyatt insists that such immunity exists only as a “matter of comity” and can be disregarded by the forum State. … The problem with Hyatt’s argument is that the Constitution affirmatively altered the relationships between the States, so that they no longer relate to each other solely as foreign sovereigns. Each State’s equal dignity and sovereignty under the Constitution implies certain constitutional “limitation[s] on the sovereignty of all of its sister States.” … Nevada v. Hall is irreconcilable with our constitutional structure and with the historical evidence showing a widespread pre-ratification understanding that States retained immunity from private suits, both in their own courts and in other courts. We therefore overrule that decision. Because the Board is thus immune from Hyatt’s suit in Nevada’s courts, the judgment of the Nevada Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered Lineup: Thomas, joined by Roberts, Alito, Gorsuch, and Kavanaugh. Dissent by Breyer, joined by Ginsburg, Sotomayor, and Kagan. Other Opinions: Dissent (Ginsburg): Can a private citizen sue one State in the courts of another? Normally the answer to this question is no, because the State where the suit is brought will choose to grant its sister States immunity. But the question here is whether the Federal Constitution requires each State to grant its sister States immunity, or whether the Constitution instead permits a State to grant or deny its sister States immunity as it chooses. We answered that question 40 years ago in Nevada v. Hall, 440 U. S. 410 (1979). The Court in Hall held that the Constitution took the permissive approach, leaving it up to each State to decide whether to grant or deny its sister States sovereign immunity. Today, the majority takes the contrary approach—the absolute approach—and overrules Hall. I can find no good reason to overrule Hall, however, and I consequently dissent. … The majority disputes both Hall’s historical conclusion regarding state immunity before ratification and its conclusion that the Constitution did not alter that immunity. But I do not find the majority’s arguments convincing. … I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation. … The majority may believe that the distinction between permissive and absolute immunity was too nuanced for the Framers. The Framers might have understood that most nations did in fact allow other nations to assert sovereign immunity in their courts. And they might have stopped there, ignoring the fact that, under international law, a nation had the sovereign power to change its mind. But there is simply nothing in the Constitution or its history to suggest that anyone reasoned in that way. No constitutional language supports that view. Chief Justice Marshall, Justice Story, and the Court itself took a somewhat contrary view without mentioning the matter. And there is no strong reason for treating States differently than foreign nations in this context. Why would the Framers, silently and without any evident reason, have transformed sovereign immunity from a permissive immunity predicated on comity and consent into an absolute immunity that States must accord one another? The Court in Hall could identify no such reason. Nor can I. … In any event, stare decisis requires us to follow Hall, not overrule it. Overruling a case always requires “‘special justification.’” What could that justification be in this case? The majority does not find one. The majority believes that Hall was wrongly decided. But “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” Three dissenters in Hall also believed that Hall was wrong, but they recognized that the Court’s opinion was “plausible.” While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it. … It is one thing to overrule a case when it “def[ies] practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next [spoiler: Breyer means Roe]. I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-1299_8njq.pdf [internal citations inconsistently omitted throughout]
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May 13, 2019 18:39
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Mr. Nice! posted:It’s actually a pretty straightforward opinion, and my guess is the reason Kav and the liberals sided in this case is because they did not touch the merits of the claim. The best part is the majority and the dissent arguing over who's putting form over substance.
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May 13, 2019 18:40
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Gorsuch Apple Dissent posted:The lawsuit before us depends on just the sort of pass-on theory that Illinois Brick forbids. The plaintiffs bought apps from third-party app developers (or manufacturers) in Apple’s retail Internet App Store, at prices set by the developers. The lawsuit alleges that Apple is a monopolist retailer and that the 30% commission it charges developers for the right to sell through its platform represents an anticompetitive price. The problem is that the 30% commission falls initially on the developers. So if the commission is in fact a monopolistic overcharge, the developers are the parties who are directly injured by it.  it's like vogon poetry
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May 13, 2019 19:52
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