There’s statutory authority in 28 USC 1254, cited in recent case law, for the losing side in the Section 301 litigation to appeal the decision of the three-judge panel at the U.S. Court of International Trade directly to the Supreme Court without stopping first at the Court of Appeals for the Federal Circuit, several trade lawyers told us. “Technically, an appeal in the Federal Circuit needs to be filed, but before the Federal Circuit hears or even takes up the case, 28 USC 1254 allows the appellant to file a petition for certiorari to the Supreme Court,” said one attorney, typifying others. “The practical effect is that at the appellants’ option they can petition for certiorari at the Supreme Court before the Federal Circuit takes the case.” The plaintiffs’ steering committee in the Section 301 litigation ultimately “will decide on strategy regarding an appeal of any adverse decision from the CIT,” emailed Sandler Travis trade expert David Cohen Wednesday. “Way too early to make that call, but I also note the Sup Ct. only hears an extremely low percentage of cases it is requested to take on.” Cohen told a Sandler Travis webinar Tuesday his firm thinks it’s “highly likely” the losing side in the Section 301 litigation will appeal (see 2106150080).

Chief Judge Mark Barnett of the U.S. Court of International Trade gave both sides in the Section 301 litigation less than 72 hours to ponder tough questions he and others on the three-judge panel want answered during oral argument Thursday on the plaintiffs’ motion for a preliminary injunction to freeze liquidation of unliquidated customs entries from China with Lists 3 or 4A tariff exposure (see 2106100001). Barnett asked (in Pacer) Akin Gump lawyers for sample-case plaintiffs HMTX Industries and Jasco Products to square their argument that the court has the authority to order remedies through reliquidation or money judgment with their obligation to show they likely would suffer irreparable harm without an injunction, “as articulated” in the Supreme Court’s 2008 Winter v. Natural Resources Defense Council opinion. The court in that case vacated a lower court’s injunction barring the Navy from using sonar in training exercises off the coast of Southern California due to the possibility it could harm marine mammals. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” wrote the court. If the purpose of preliminary injunctive relief is “to prevent the loss of something which cannot be remedied by a money judgment,” Barnett asked the government, doesn't DOJ’s argument that the court can’t order reliquidation or a money judgment “strongly support a finding of irreparable harm” for the plaintiffs seeking the injunction? Oral argument is scheduled for 10 a.m. Thursday. The public can listen through a dial-in audio feed.

Privacy watchdogs may enforce breaches even if they're not the lead authority -- under certain conditions -- the European Court of Justice ruled Tuesday. ECJ's decision prompted cheers from consumer groups and a cautious response from Facebook and the tech sector. The case arose when the Belgian Privacy Commission tried to stop Facebook Ireland, Facebook Inc. and Facebook Belgium from allegedly collecting personal information on the browsing behavior of account holders and non-users via cookies, social plug-ins and pixels. In 2018, a Brussels court held that it had jurisdiction and that Facebook wasn't adequately informing Belgian users about its data collection. The court ordered the social media giant to stop gathering the information in Belgium. The company appealed; that court said its jurisdiction covered only Facebook Belgium, not Facebook Ireland or Facebook Inc. The appeals court asked the ECJ to determine whether Belgium's data protection authority had the required standing to bring the proceedings, given that general data protection regulation created a "one-stop shop" for enforcement actions, and that only the Irish Data Protection Commission had jurisdiction because it's the controller for Facebook personal data in the EU. The ECJ held that a national data protection authority has the power to pursue alleged GDPR violations involving cross-border data processing even though it's not the lead supervisory authority and that it's not necessary that the controller of such personal data have a main establishment in that country. However, the ECJ said the non-lead authority can enforce only if it complies with rules governing the relationship between itself and the lead authority. The one-stop shop mechanism "requires close, sincere and effective cooperation" between authorities to ensure consistent application of the rules, the court said. Facebook said it's pleased the court "upheld the value and principles of the one-stop shop mechanism, and highlighted its importance" in ensuring uniform application of the GDPR. "While the Court has upheld the one-stop shop principle ... it has also opened the back door for all national data protection enforcers to start multiple proceedings against companies," said the Computer & Communications Industry Association, adding that this risks compliance becoming more fragmented and uncertain. "Given the existing bottlenecks in the GDPR cross-border enforcement system, all national authorities must be able, under certain conditions, to proactively take matters into their own hands, said the European Consumer Organisation.

The husband of a former Amazon finance employee was sentenced to 26 months in federal prison for insider trading of Amazon stock, said DOJ Thursday. Viky Bohra, 37, of Bothell, Washington, pleaded guilty to using inside information he got from his wife to place trades in Amazon stock, netting himself a $1.43 million profit, said prosecutors. By relying on “material, nonpublic information provided” by his wife, Bohra “misappropriated the confidential information of Amazon relating to its internal financial condition” and converted it to his “own use and benefit,” says his Nov. 5 plea agreement (in Pacer, case 2:20-cr-00165). He illegally traded during the "blackout" period before each of Amazon’s quarterly earnings announcements for Q4 in 2015 through Q2 in 2018, it said. DOJ under terms of the plea deal agreed not to prosecute Bohra’s wife, identified in court papers only as "R," his “immediate relative.” Prosecutors didn't identify her Thursday, saying only she no longer works for Amazon. Efforts to reach Bohra’s lawyers Friday were unsuccessful. Amazon didn’t comment.

Apple intentionally inflicted damage on consumers' iPhones through frequent iOS software updates, alleged a complaint (in Pacer) Monday in U.S. District Court in San Jose that seeks class-action status. Three iOS updates released since April rendered iPhones “significantly damaged” by causing processing speeds to “decrease dramatically” and batteries to drain faster, it said. “After hundreds of online complaints on forums, articles on technology blogs and on traditional media websites, and hundreds of complaints on social media, Apple has failed to acknowledge improperly damaging user’s iPhones without disclosure.” The potential class is iPhone owners dating to the iPhone 8 who experienced “reduced functionality” after iOS updates 14.5, 14.5.1 or iOS 14.6. The lawsuit alleged violation of the Consumer Fraud and Abuse Act and similar California statutes and seeks statutory and punitive damages. Apple didn’t comment Tuesday.

Importers filed a daily average of 1.25 new Section 301 cases in the 20 business days since Chief Judge Mark Barnett of the U.S. Court of International Trade signed his April 28 administrative order automatically staying any new complaints without assigning them to the three-judge panel he shares with Judges Claire Kelly and Jennifer Choe-Groves (see 2104290002). Court records show that’s slightly fewer than the 1.45 daily average of cases filed in the 20 days before Barnett’s order, all of which were also stayed but assigned to the panel. There’s no evidence suggesting Barnett’s order is reducing the influx of new Section 301 challenges, nor was that his intent. His rationale, he told an April 26 status conference, was his worry that a future case would create a "conflict" forcing the recusal of one or more of the judges. There’s word that the court took elaborate precautions to avoid possible conflicts, contributing to the five-month delay between the Sept. 10 filing of the first complaint and the Feb. 5 order assigning the massive litigation to the three-judge panel (see 2102050038). Judges’ stock ownership in companies with cases coming before them is a common worry. Lawyers filing complaints before the court need to submit the proper disclosure forms to help the chief judge weed out possible conflicts before assigning cases.

Amazon practiced “anticompetitive restraint” at least until two years ago by barring its third-party sellers through a “price parity provision” (PPP) in its contracts from offering their products on a competing online retail sales platform, alleged District of Columbia Attorney General Karl Racine (D) Tuesday in a D.C. Superior Court antitrust complaint. “Competition and consumers were directly harmed by virtue of higher prices, as well as through the loss of choice, innovation, and competition among online retail sales platforms.” Other e-commerce platforms “were not able to use lower product prices to lure buyers and sellers” to “capture some of Amazon’s dominant market share,” it said. Amazon removed the PPPs in 2019 “under intense scrutiny from Congress and U.S. government regulatory officials” but quickly replaced it with “an effectively-identical substitute,” it alleged. “There is a dangerous probability that Amazon will be successful in achieving its goal of obtaining monopoly power in the online retail sales market (if it has not already done so).” The lawsuit seeks statutory and punitive damages and asks for a “corporate monitor” to enforce any remedies the court may order. The D.C. attorney general "has it exactly backwards," responded an Amazon spokesperson. "Sellers set their own prices for the products they offer in our store. Amazon takes pride in the fact that we offer low prices across the broadest selection, and like any store we reserve the right not to highlight offers to customers that are not priced competitively. The relief the AG seeks would force Amazon to feature higher prices to customers, oddly going against core objectives of antitrust law.” But Public Knowledge hails the complaint because consumers "are paying more than they should for what they buy online as a direct result of Amazon’s conduct," said Policy Counsel Alex Petros. "Third-party sellers should be allowed to contract freely with platforms that offer them the best deal to reach customers -- not limited by Amazon’s self-enriching terms."

Male Amazon Web Services executives “felt free” to treat executive Cindy Warner, a gay woman in her late 50s, “with open contempt, insults, and hostility” after the company’s Professional Services operation hired her in April 2019 to grow cloud enterprise revenue through clients Novartis and Cisco, she alleged (in Pacer) Wednesday in U.S. District Court in Riverside, California. Amazon terminated Wagner April 28 in a “blatantly retaliatory move,” two weeks after learning she had hired lawyers to pursue “legal claims of discrimination” against the company, said her complaint. “The openly discriminatory language and other conduct by Amazon’s white male executives show that much of their worst behavior and abuse is targeted at female coworkers and subordinates.” Wagner said she will file a charge with the U.S. Equal Employment Opportunity Commission. Her complaint seeks punitive and compensatory damages, plus declaratory judgment that Amazon violated federal and California discrimination laws. Amazon didn’t respond to questions Thursday.

Sony Interactive Entertainment and parent Sony Group are forcing owners of the PlayStation 5 Digital Edition to buy digital copies of games for the console exclusively through the PlayStation Store and not through the competitive retail channels that sold content on physical Blu-rays for previous PlayStation console generations and continue doing so for the standard PS5, alleged a complaint (in Pacer) in U.S. District Court in San Francisco that seeks class-action status. The PS5 DE, $399, lacks the 4K Ultra HD Blu-ray-compatible disc drive of the standard PS5 priced for $100 more. Game discs for the standard PS5 are readily available for sale at Amazon, Best Buy, Target and Walmart, but both console versions are sold out nearly everywhere as Sony struggles to meet unexpectedly strong demand (see 2104280003). “Sony eliminated competition in the PS5 video game distribution market by refusing to allow retail outlets to sell digital copies" of videogames for the PS5 DE, said the complaint Friday. “This conduct is anticompetitive and violates federal antitrust law.” Consumers are forced to buy games through the Sony-owned and operated PlayStation Store app that’s preloaded on the PS5 DE, said the suit. Sony disallows other apps that enable consumers to play videogames on the PS5 DE, and doesn’t let digital download codes sold by retailers to be redeemed through the PlayStation Store, it said. The lack of a “truly competitive environment” has reduced the “output and supply” of PS5 games “because developers are barred from selling these games at prices below Sony’s mandated and inflated 30% marked-up price” at the PlayStation Store, it said. The suit identifies the potential class as all U.S. consumers who bought a game digitally through the PS5 DE’s PlayStation Store app from the console’s Nov. 12 launch to the present. It seeks treble damages, plus an injunction “permanently enjoining Sony from continuing the unlawful conduct alleged here.” Sony didn’t comment Monday.

Four of the biggest Trade Act Section 301 litigation plaintiffs are among the first to get their cases automatically stayed and unassigned to the U.S. Court of International Trade’s three-judge panel, under an April 28 administrative order signed by Chief Judge Mark Barnett (see 2104290002). LG Energy Solution sued (in Pacer) Tuesday to get the List 4A tariffs on Chinese imports vacated, as did Cisco (in Pacer) Monday, while complaints from Chrysler parent FCA (in Pacer) Monday and Tesla (in Pacer) Friday seek to have the Lists 3 and 4A tariffs overturned. Though the court stayed the roughly 3,700 complaints after designating the first-filed HMTX-Jasco litigation as the sample case in the massive litigation, it continued assigning new cases to the three-judge panel Barnett shares with Judges Claire Kelly and Jennifer Choe-Groves. But Barnett expressed worry during an April 26 status conference that a future case would create a conflict requiring one or more of the judges to recuse themselves. Ironies abound in the case LG Energy Solution filed against the government. LG and rival electric-vehicle battery manufacturer SK Innovation were embroiled in a trade secrets fight at the International Trade Commission, when U.S. Trade Representative Katherine Tai helped broker a compromise that settled the dispute in mid-April (see 2104150058). Yet LG’s Section 301 complaint names Tai as a defendant because her agency continues to supervise the tariffs on Chinese imports originally imposed in the Trump administration under her predecessor, Robert Lighthizer. Akin Gump, which represents HMTX-Jasco in the sample case, filed on LG’s behalf.