Articles Posted in Appellate

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We have entered a Supreme-Court-Justice-Nomination season. These are always interesting times for lawyers, politicians, and real people.

There are only nine Justices on the Supreme Court, so whenever there is an opening, it is a big deal. Appointments are for life, or until a Justice wants to leave, for whatever reason (or impeachment, but we haven’t had to worry about that lately). So the nomination seasons are whenever they are.

For lawyers, it is the rare time when the rest of the country cares about what they care about. Thus, news talk shows and articles are full of attorney quotes, ideas, and predictions about, first, who they think the nominee will be; and second, after the name is known, whether that person is qualified.

A Supreme Court Justice, as a job, is not an easy one. Sure, it comes with some perks like lifetime appointment, cool robes, and the right to interrupt attorneys whenever you want. But it is a lot of pressure because you are making decisions in a wide variety of legal subjects, covering constitutional, statutory, and even federal common law, each of which may create upheavals for huge groups of people.

As a Justice, you can’t afford the time to become and stay an expert in every area of law, but you (and your Justice colleagues) are making decisions that set the parameters for all legal fields, even over experts in those fields. Some may say that this is a feature not a bug. But, from the perspective of the individual Justice, it creates an enormous responsibility to think through everything you do. You can’t just take an opinion off.

Because of the impact and responsibility of a Supreme Court Justice, this isn’t a job for anyone. You have to love the law and want to contribute positively to it—in a way that might even seem a little obsessive.

So let’s talk about qualifications: At least since I’ve been following it, it is unusual to see a nominee for the US Supreme Court that isn’t qualified to work on the Court. That is, the qualifications of the men and women that Presidents of both parties have nominated over the last couple of decades have been impressive and adequate for the extremely high standards of the Court. That includes DC Circuit Judge Merrick Garland.

But, unfortunately, the word “qualifications” has become a word that every side, at one time or another, has lifted to mean “I think will do what I want on the rare controversial case that could likely go either way on the law,” or some other interest-focused meaning.

That is because most people, especially people on television, don’t like to just say, honestly, that they support or oppose a particular nominee for pure reasons of self or philosophical interest. Instead, they filter out their own biases by using the word “qualified” or “not-qualified,” or “extremist” or some other mismatched word. The reasons for this probably range from cognitive dissonance to political marketing.

President Donald Trump Nominates Judge Neil Gorsuch to the US Supreme Court

Thanks for sticking around through that long-winded introduction. I added the context I wanted to add, so I can now speak (well, write) more transparently.

Judge Gorsuch is a federal appellate judge on the Tenth Circuit Court of Appeals (which hears appeals from district courts in Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming). He has a BA from Columbia, graduated from Harvard Law in 1991 (exactly one decade before I did), and has a Doctor of Philosophy Degree in Law from Oxford. He clerked on the DC Circuit with Judge David B. Sentelle, then clerked on the United States Supreme Court with both Justices Byron White and Anthony Kennedy. He later worked with the Department of Justice and for many years at a strong law firm.

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Supreme Court amicus briefAn amicus curiae brief is filed by a non-party—usually in an appellate court like the US Supreme Court—that seeks to educate the court by offering facts, analysis, or a perspective that the party briefing doesn’t present. The term amicus curiae means “friend of the court,” and that is exactly what the parties that file these briefs are. They aren’t objective, but they are—without pay—helping out the court, like a friend might. Well, sort of.

Entities filing amicus briefs do so for a reason and that reason isn’t typically just court friendliness. In fact, as we will discuss below, there are many good reasons for someone to file an amicus brief.

Along with antitrust and commercial litigation, I’ve been an appellate litigator my entire career. I started out by clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis), then moved on to Gibson Dunn’s appellate group in Washington DC. So, as you might imagine, I’ve participated in many appellate matters. And without question some of my favorite briefs to write are amicus briefs. I’ve filed many of them over the years.

Indeed, at Bona Law, we have already filed five amicus briefs (US Supreme Court, Fourth Circuit, Eighth Circuit, Tenth Circuit and the Minnesota Supreme Court).

From the attorney’s perspective what I really like about amicus briefs is that they invite opportunities for creativity. The briefs for the parties before the court include necessary but less exciting information like procedural history, standard of review, etc. Then, of course, they must address certain necessary arguments. Even still, there is room for creativity and a good appellate lawyer will take a thoughtful approach to a case in a way that the trial lawyer that knows the case too well may not.

But what is great about writing an amicus brief is that you can pick a particular angle and focus on it, while the parties slog through other necessary details. The attorney writing the amicus brief figures out—with the client’s help—the best contribution they can make and just does it, as efficiently and effectively as possible.

Because the amicus brief should not repeat the arguments from the parties, the attorney writing the brief must develop a different approach or delve deeper into an argument that won’t get the attention it deserves from the parties. This is great fun as the attorney can introduce a new perspective to the case, limited not by the arguments below, but by the broader standard of what will help the court.

This means that the law review article that the attorney saw on the subject that hasn’t developed into case law is fair game. So is the empirical study from a group of economists that may reflect on practical implications of the decision confronting the court. Or the attorney might educate a state supreme court about what other states are doing on the issue. Often an association will explain to the court how the issue affects their members.

The point is that amicus briefs present opportunities to develop issues in ways that party briefs rarely do. Indeed, that is partly why they are valuable to courts.

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LIBOR Antitrust MDLThe US Supreme Court just issued its decision in an antitrust case called Ellen Gelboim v. Bank of America Corporation. This case arises out of major multi-district litigation (an MDL) centered on allegations that major banks conspired to manipulate the London InterBank Offered Rate (which you probably know as LIBOR) to lower their interest costs on financial instruments sold to investors.

For purposes of Gelboim, the intricate details of the alleged conspiracy are not relevant, but you should know that it led to over 60 actions filed in federal court against the banks.

That sounds like a lot of cases and you might infer from the large number that the defendants must have done something wrong if so many people are suing them. But that isn’t necessarily true.

What happens is that a government agency announces an investigation (or it leaks) or someone has the idea that there is price-fixing, market-allocation, bid-rigging or some related horizontal per se antitrust violation going on.

There are plaintiff law firms all over the country that specialize in bringing these types of lawsuits and when one appears, you see many more very quickly. They follow each other and an antitrust blizzard ensues. It is, in fact, an extremely competitive market among plaintiff firms. And when a big set of cases develop, the plaintiff lawyers are often fighting each other for bigger pieces of the pie more than they battle defendants’ attorneys.

Fortunately, there is a set of procedures that deal with such a situation—Section 1407. This statute created the Judicial Panel on Multidistrict Litigation (JPML), which may transfer the many related actions “involving one or more common questions of fact” to one district court for coordinated or consolidated pretrial proceedings.

Importantly, as the Supreme Court points out, this does not mean that all of the cases are transferred forever into the one district court. They are just there for pre-trial proceedings. Of course, practically speaking, they rarely leave that court as most of these cases are either dismissed or settled. If not, the statute requires that each individual action “shall be remanded by the panel at or before the conclusion” of the pretrial proceedings to the original district court.

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Baseball Antitrust ExemptionBaseball is special. How do we know that? Is it the fact that it has been declared America’s Pastime? Or is it the feelings we have when we smell the freshly cut grass on a sunny spring day? Or is it the acoustics of a wood bat striking a leather-wrapped baseball? The answer is that  we know that baseball is special because the US Supreme Court has told us so.

Over the course of ninety-two years, the Supreme Court has consistently affirmed and re-affirmed a special exemption from the antitrust laws for the “business of providing public baseball games for profit between clubs of professional baseball.” There is a state action exemption, an insurance exemption, a labor exemption, and a  . . . baseball exemption? That’s right. A baseball exemption from the federal antitrust laws.

The Ninth Circuit—in an opinion courtesy of Judge Alex Kozinski—just applied this exemption in City of San Jose v. Office of the Commissioner of Baseball, which rejected San Jose’s antitrust lawsuit challenging Major League Baseball’s “attempt to stymie” the relocation of the Oakland Athletics to San Jose, California.

Update: On October 6, 2015, the US Supreme Court, without comment, declined to hear this case. Because the Supreme Court rejects the vast majority of petitions for cert., I wouldn’t read too much into this. Of course, if at least four Justices had wanted to revisit the historical exemption, they could have done so.

Why is There a Baseball Exemption from the Antitrust Laws?

In the 1920’s, the Supreme Court decided a case called Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, which held that the Sherman Act didn’t apply to the business of baseball because such “exhibitions” are purely state affairs. As Judge Kozinski explained, the reasoning behind the Supreme Court’s decision reflected the “era’s soon-to-be-outmoded interpretation of the Commerce Clause.” In other words, back in the day, courts didn’t assume that almost every economic activity was within federal jurisdiction.

Thirty-years later in Toolson v. New York Yankees, Inc., the Supreme Court affirmed Federal Baseball on different grounds. The Court recognized that the Commerce Clause reasoning no longer applied, but observed that despite the Federal Baseball governing law that the federal antitrust laws don’t apply to baseball, Congress hasn’t legislated to the contrary. So it left the baseball exemption.

Finally, in 1972, the Supreme Court decided the Classic Antitrust Case of Curt Flood v. Kuhn, which is the famous baseball exemption case. The Court specifically addressed baseball’s reserve clause, which essentially prohibited free agency. When a player’s contract ended, the team still retained the player’s rights. Once again, the Supreme Court upheld the baseball exemption based upon Congress’ inaction.

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NC Dental PictureThe US Supreme Court does not review many antitrust cases. So when they do, it is kind of a big deal for antitrust attorneys around the world.

On Tuesday, the Supreme Court heard oral arguments in North Carolina Board of Dental Examiners v. FTC, which addressed the scope of state-action immunity from antitrust liability. More specifically, the Court is reviewing whether a state licensing board must satisfy both prongs of what is known as the Midcal test to avoid antitrust scrutiny.

The first element, which everyone agrees applies, requires the defendant entity to show that the State “clearly articulated and affirmatively expressed” the challenged anticompetitive act as state policy. The Supreme Court is deciding whether state licensing boards are subject to the second element as well: whether the policy is “actively supervised by the State itself.” Municipalities and other local governments have a free pass from this second element, but private people and entities must satisfy the active supervision requirement.

So what is the big deal? If an entity—state or private—can show that state-action immunity doesn’t apply, it can violate the antitrust laws at will. It can grab consumer surplus for itself; it can exclude competition; it can behave under different rules than everyone else. And monopoly is quite profitable.

In NC Board of Dental Examiners v. FTC, a state-sanctioned dental board—composed of six licensed dentists, one licensed dental hygienist, and one public member—engaged in actions to exclude non-dentist teeth-whitening services. As you might recall, Bona Law filed an amicus brief in this case. You can learn about the case and our amicus brief here. Among other points, we argued that the Supreme Court should analyze the case as the Court outlined in American Needle, by reference to whether the units of competition—the independent decision-makers—are private. They are. We also advocated that the Supreme Court apply an active state supervision requirement with some teeth.

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By Jarod Bona and Aaron Gott

We filed an amicus curiae brief with the U.S. Supreme Court on behalf of We All Help Patients, Inc. in North Carolina State Board of Dental Examiners v. FTC, a federal antitrust case challenging anticompetitive conduct by professional-licensing boards.

Let us tell you a little bit about this interesting case.

The Antitrust Case

The North Carolina Board of Dental Examiners is composed of six licensed dentists, one licensed dental hygienist, and one “public member.” Dentists make a lot of money by offering teeth-whitening services. So when non-dentists started providing teeth-whitening services at a far lower cost, dentists started complaining to the Board about the lower-priced competitors.

Naturally, a Board made up of self-interested private parties had an incentive to do something about it. They began sending cease-and-desist letters to non-dentist teeth whiteners and even went so far as to ask shopping malls to not lease kiosks to teeth whiteners. It wasn’t clear, of course, that North Carolina law limited teeth-whitening services to dentists.

The Board’s actions were, in fact, a conspiracy to restrain trade. The members were competitors that acted in agreement to exclude other competitors. The conspiracy question was not at issue with the US Supreme Court.

The Federal Trade Commission, which has long advocated for “free and unfettered competition as the rule of trade” to protect consumers and economic liberty, issued an administrative complaint against the State Board and ultimately held that the Board engaged in anticompetitive conduct and the state-action immunity doctrine did not apply. The case made its way up through the Fourth Circuit—which agreed with the FTC—and finally to the U.S. Supreme Court.

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We are proud to announce that we filed an amicus curiae brief with the Minnesota Supreme Court on behalf of the Minnesota Vacation Rental Association last week in Dean et al. v. City of Winona, a case concerning municipal power and the right to rent out one’s residential property.

Four property owners represented by the Institute for Justice Minnesota Chapter challenged a City of Winona, Minnesota ordinance that caps the number of rental licenses per residential block to thirty percent (“the thirty-percent rule”). In other words, if you live in one of Winona’s low-density residential districts, your right to rent your home is subject to your neighbors’ exercise of theirs.

Here’s the background:

The City of Winona, Minnesota was unhappy with parking, density, and aesthetic issues in the residential areas near the Winona State University campus. Rather than enforce existing laws against problem residents (students), the City of Winona decided to expropriate its residents’ property rights by restricting the number of homes that could be rented out to 30% of the houses on a given block.

Thus, if six houses comprise your block, owners of only two houses on the block could obtain a license to rent to tenants.

Four homeowners challenged the thirty-percent rule after facing ruinous financial consequences as a result of the rule. One homeowner, who was deployed to Iraq, almost lost his home because the city wouldn’t let him rent it, thus depriving him of rental income to cover the mortgage payment.

Another couple bought a home in Winona for their daughter to live in while she was in college and as an investment that would provide rental income. After their daughter left, the home sat empty on the market because they couldn’t rent it and interested buyers backed out when told of the rental restriction.

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Legal WritingGreat lawyers must write well. But what does that mean? I could give you a list of what you should or shouldn’t do as a legal writer. I think that you might find such an article useful regardless of your skill level because the best writers always strive to improve and the worst writers, well, they need a lot of guidance.

I might write that article one day. But not today. I thought we’d try to go a little deeper than that today.

If you want technical advice, it isn’t hard to find. I highly recommend Bryan Garner’s seminars. I’ve attended many over the years and they are inspirational. And I mean that; I’m not just trying to sound overly cool by telling you how writing seminars inspire me. But he is a great writer turned great speaker who really cares about the written word and you leave the course thinking not only about your writing, but about bettering your writing.

I was lucky to have clerked in Minneapolis for Judge James B. Loken of the Federal Court of Appeals for the Eighth Circuit. Early in our clerkship, he explained to us that he is a professional writer. At first I was surprised to hear that because I thought of novelists, journalists and others as professional writers, but not judges. But he was write; I mean right.

The appellate judge communicates through writing. Indeed, every official act is a written one. To act effectively, the judge must write well. Clarity, persuasiveness, organization, and plain old storytelling must find their way into the judge’s opinions.

Lawyers have the same responsibility. We are professional writers. My legal career has included both an appellate practice and a writing-heavy litigation and antitrust focus. That is, in the big cases, I typically find myself in the writing roles, which is not an accident. So I have spent a lot of time pondering the theoretics of legal writing (or at least what makes it good or bad).

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Supreme CourtI am excited to announce that after a dozen years of big-law practice, I am leaving DLA Piper to start my own law firm—Bona Law PC. I believe that through Bona Law I can offer clients the legal services of the best law firms, but in a much more efficient way. I am headquartered in the San Diego, California area, but expect to continue to practice nationally.

My family, friends, and former co-workers have commented lately that I seem very happy—maybe even giddy. It is true. I am as enthusiastic about the practice of law—and life—as I have ever been. I have a wonderful supportive family and am about to embark on a journey that marries my entrepreneurial spirit with a profession that I love. I feel like I am living the dream.

After years of analyzing other markets for antitrust matters, I finally sat down and analyzed my own. My conclusion is the legal market has structurally changed such that the largest law firms are concentrating more and more on their biggest clients and developing such diseconomies of scale that they are no longer competitive for most businesses. Unless a company can provide these law firms with a minimum volume of work, the firms are unlikely to offer a competitive price for their services.

First, matters with less volume could create conflict issues, which are a significant and costly issue for large law firms. Without sufficient volume, it just isn’t worth it for firms to discount their already high prices.

Second, large law firms have huge fixed overhead—leases, management, marketing departments, etc. Moreover, many (probably most) of them have excess capacity, which means that they are paying a lot of attorneys that aren’t billing as many hours as the firm would like. So volume is a big deal.

This is where I come in.

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Appellate Court BuildingI love writing appellate briefs. It is my favorite activity as an attorney. I like it because I like to build.

(Well, I can’t build anything practical—you can ask my wife about my construction abilities, or lack thereof, when we purchase a new real-estate property that needs work).

But I do like to build arguments and create case theories.

I previously wrote about why you should hire an appellate lawyer.

Here, I discuss the three foundations for every argument on appeal. These can also apply to trial-level arguments, but at the appellate level you can usually build a more complete argument, so I will use the appellate brief as the model.

Of course, what I like about antitrust is that the cases tend to be more complex, which usually invites deeper arguments, even at the trial level (similar to an appellate brief).

My arguments incorporate these three components.

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