With the close of the United States Supreme Court’s 2017-18 term, we offer this wrap-up, focusing on decisions of special interest from the business and commercial perspective (excluding patent cases): In a much talked-about decision in the antitrust field, the Court held in Ohio v. American Express Co. that American Express’s anti-steering provisions in its merchant contracts, which generally preclude merchants from encouraging customers to use credit cards other than American Express, are not anticompetitive and therefore do not violate Section 1 of the Sherman Act. In so holding, the Court found that credit card networks are two-sided transaction platforms, one side being the merchant and the other side being the merchant’s customer. Thus, when assessing whether the anti-steering agreements are anticompetitive, the effects on both sides of the platform must be considered. The plaintiffs’ proof that American Express had increased its merchant fees over a period of time was insufficient to show an anticompetitive effect because it neglected the customer side of the platform, where consumers have received the benefit of ever-increasing rewards from credit card companies and other improvements in services that those higher merchant fees enable. Bringing an end to a fight that New Jersey had been waging against the NCAA and professional sports leagues since 2012, the Court paved the way for...
Tagged: Rule 23
With the close of the United States Supreme Court’s 2016-17 term, we offer this wrap up of the term’s most important business and commercial cases (excluding patent cases): Kindred Nursing Ctrs, L.P. v. Clark: The Supreme Court continued its full-throated support of arbitration agreements, again rejecting a state supreme court’s effort to apply an ostensibly arbitration-neutral rule of law to invalidate an arbitration agreement. In Kindred, the Kentucky Supreme Court held that an arbitration agreement signed by an attorney-in-fact under a broad power of attorney was invalid because the power of attorney did not expressly give the attorney-in-fact the right to waive the principal’s right to a jury trial. According to the Kentucky Supreme Court, to grant an attorney-in-fact the authority to waive a “fundamental constitutional right,” a power of attorney must grant that authority expressly and unambiguously. Because the right to access the courts and the right to a jury trial are such “fundamental constitutional rights” and because the power of attorney did not expressly and unambiguously waive them, the attorney-in-fact was not authorized to agree to arbitrate the principal’s claims, and no enforceable arbitration agreement was created. The Supreme Court found that the Kentucky Supreme Court’s facially arbitration-neutral rule—that the authority to waive “fundamental constitutional rights” must be expressed unambiguously in a power...
With the close of the United States Supreme Court’s 2015-16 term, we offer this wrap up of the Court’s term, focusing on decisions of special interest from the business and commercial perspective (excluding patent cases): Upon being granted a discharge from a Bankruptcy Court, a bankrupt’s debts are discharged unless a particular debt falls within one of the Bankruptcy Code’s statutory exclusions. One of those exclusions is for debts arising from “false pretenses, a false representation, or actual fraud.” Husky Int’l Elecs., Inc. v. Ritz asked whether a debt arising from a fraudulent transfer made for the purpose of frustrating a creditor, but accomplished without making a false representation, is subject to this exclusion.
With the close of the United States Supreme Court’s 2013-14 term, we offer this wrap-up of the Court’s term, focusing on the Court’s most important business and commercial cases (excluding intellectual property opinions): Halliburton Co. v. Erica P. John Fund: The Court upheld the fraud-on-the-market theory first set forth in Basic Inc. v. Levinson, which allows investors to satisfy the reliance element of a section 10b-5 securities fraud claim by invoking a presumption that the price at which stock is purchased in an efficient market reflects all public, material information — including material misstatements.
A recent Seventh Circuit decision, authored by Judge Richard Posner, could have an impact on future class action litigations. In Butler, et al. v. Sears, Roebuck & Co.,—a lawsuit involving product defects that allegedly cause mold buildup in washing machines sold by Sears between 2001 and 2004—the Seventh Circuit sought to clarify “predominance,” a concept that, in the context of class action litigation, has been shrouded by ambiguity. In its opinion, the Seventh Circuit explained that “[p]redominance is a question of efficiency.” Put simply, predominance asks whether it is “more efficient . . . to decide some issues on a class basis or all issues in separate trials?”
In Marcus v. BMW of N. Am, LLC, et al., the Third Circuit vacated an order certifying a class of owners and lessees of various model-year BMW vehicles equipped with run-flat tires, finding the class definition impermissibly vague, the proposed class not ascertainable, and otherwise rejecting certification on numerosity and predominance grounds. Although the Court remanded for further proceedings, it will likely be very difficult for the plaintiff to have a class certified in light of the Court’s directives for the necessary proof.
Second Circuit Rejects “Novel” Argument That Putative Class Action Plaintiff Has Article III Standing to Sue “Juridically Linked” Defendants Who Did Not Cause Her Any “Injury-In-Fact”
In Mahon v. Ticor Title Ins. Co., the Second Circuit held that a putative class action plaintiff must allege that each defendant injured her to satisfy Article III’s standing requirement. In so holding, the court explained that a putative class action plaintiff cannot use FED. R. CIV. P. 23’s “juridical link” doctrine to bootstrap the alleged injuries of absent, would-be class members and create Article III standing where none otherwise exists.
Third Circuit Rejects Volkswagen Class Settlement for Fundamental Intra-Class Conflict in Consumer Fraud Class Action
In a precedential opinion issued on May 31, 2012, the Third Circuit in Dewey v. Volkswagen AG, et al., reversed an order granting final approval of a nationwide class action settlement on the ground that the class representative plaintiffs could not adequately represent the interests of the entire class, as required by Fed. R. Civ. P. 23(a)(4).
In Stolt-Nielsen S.A. v. Animal Feeds International Corp., the United States Supreme Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” As the parties in Stolt-Nielsen stipulated that their arbitration “agreement was ‘silent’ in the sense that they had not reached any agreement on the issue of class arbitration,” the Court ruled that the arbitrator could not infer the parties’ consent to class arbitration solely from the fact of their agreement to arbitrate, or failure to preclude it.
Third Circuit Holds that Injunctive-Relief-Only Class Cannot Be Certified Where Plaintiffs Based the Threat of Future Harm on Irrational Consumer Behavior
In McNair v. Synapse, a precedential opinion, the Third Circuit held that former customers could not certify an injunctive-relief-only class asserting consumer fraud claims against defendant Synapse, Inc., the largest marketer of magazine subscriptions in the United States, because they lacked Article III standing. In short, the Third Circuit concluded that plaintiffs could not show a likelihood of future injury based on their claim that they might be deceived by the same conduct twice.