Louisiana asked to join Texas and nine other states’ antitrust lawsuit against Google in U.S. District Court in Sherman, Texas (see 2012160059). Louisiana filed the motion (in Pacer) Thursday.
Ohio said a state court should decide if Google is a common carrier before it addresses the state’s second claim that seeks to stop the company from prioritizing its services in search results. “The second cause of action need not be reached if the first cause does not succeed,” plus it would require a large amount of discovery not required by the first count, Attorney General Dave Yost (R) said in a motion Thursday at Ohio Common Pleas Court in Delaware County (case 21 CV H 06 0274).
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.
The 6th U.S. Circuit Court of Appeals will hear oral argument July 29 in an appeal of a lower court's dismissal of Telephone Consumer Protection Act class-action litigation against energy supplier Realgy, said a docket 20-4252 notation Friday (in Pacer). The plaintiff-appellants are challenging the U.S. District Court in Cleveland's acceptance of Realgy's argument that the TCPA was unconstitutional until the Supreme Court in 2015 severed the government-debt exception from the general robocall ban.
The Senate voted 52-46 Thursday to invoke cloture on U.S. Court of Appeals for District of Columbia Circuit judge nominee Ketanji Brown Jackson, setting up a final Monday confirmation vote. Brown Jackson would replace now-Attorney General Merrick Garland if confirmed. The Judiciary Committee advanced Brown Jackson 13-9 last month (see 2105170072). Senate Majority Leader Chuck Schumer, D-N.Y., also set a Monday vote on Democratic FTC nominee Lina Khan (see 2106100069).
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.
Akin Gump lawyers for the Section 301 sample case plaintiffs, HMTX Industries and Jasco Products, asked the U.S. Court of International Trade to hear oral argument on the preliminary injunction they seek to freeze the liquidation of unliquidated customs entries from China with Lists 3 and 4A tariff exposure. “This unprecedented litigation concerns billions of dollars, over 3,800 separate lawsuits, and an even larger number of individual plaintiffs,” said Friday's motion (in Pacer). They filed for the injunction April 23 after the government refused to stipulate plaintiffs will be entitled to refunds of liquidated entries if they win the litigation and the court declares the tariffs unlawful (see 2104250002). DOJ opposes the injunction and stands by its refusal of the stipulation due to the “uncertainty” of the case law on refund relief (see 2105160001).
Belkin International added its name Thursday to the massive Section 301 litigation at the U.S. Court of International Trade, seeking to vacate the Lists 3 and 4A tariffs and get the duties refunded on allegations the tariffs are unlawful under the 1974 Trade Act and 1946 Administrative Procedure Act. Foxconn-owned Belkin imports 69 categories of consumer tech accessories and other goods from China with List 3 tariff exposure and 26 categories with exposure to List 4, said its complaint (in Pacer). Belkin joins the growing list of cases being stayed without assignment to the court’s three-judge panel presiding over the HMTX-Jasco sample 301 case under the April 28 administrative order signed by Chief Judge Mark Barnett (see 2104290002). Akin Gump attorneys for HMTX-Jasco also represent Belkin.
The Supreme Court narrowed the scope of what's a computer crime under the Computer Fraud and Abuse Act, in Van Buren v. U.S., (see 2011300067). By 6-3 Thursday, the court overturned a 2017 conviction against former Georgia police officer Nathan Van Buren. He used his police computer to access a law enforcement database to obtain data about a license plate number owned by a potential undercover officer, in exchange for thousands of dollars. In an opinion delivered by Justice Amy Coney Barrett, the majority ruled Van Buren didn’t violate CFAA: “This provision covers those who obtain information from particular areas in the computer -- such as files, folders, or databases -- to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.” Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented. Van Buren “had permission to retrieve license-plate information from a government database, but only for law enforcement purposes,” Thomas wrote. Van Buren exceeded “authorized access” in violation of the statute, Thomas added. Van Buren’s attorney Jeffrey Fisher emailed: “We’re very pleased with the Court’s opinion and are happy that the CFAA is now restricted to its proper reach.” DOJ didn't comment. SCOTUS recognized "the terribly written CFAA crossed the line by criminalizing everyday activities like using your work computer to read the news or send personal emails,” said Sen. Ron Wyden, D-Ore., in a statement. “Today's ruling helps rectify the damage caused by that reactionary law.” The American Civil Liberties Union also backed the majority opinion.