Latest 3 Cases This Week: Federal Trade Commission v. Qualcomm Inc. (9th Cir.), Craft Smith v. EC Design (10th Cir.), SmileDirectClub, LLC v. ...

#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Federal Trade Commission v. Qualcomm Inc.

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-16122

Opinion Date: August 11, 2020

Judge: Consuelo Maria Callahan

Areas of Law: Antitrust & Trade Regulation

The FTC alleged that Qualcomm violated the Sherman Act by unreasonably restraining trade in, and unlawfully monopolizing, the code division multiple access (CDMA) and premium long-term evolution (LTE) cellular modem chip markets. The Ninth Circuit vacated the district court's judgment, and reversed the district court's permanent, worldwide injunction prohibiting several of Qualcomm's core business practices. The panel noted that anticompetitive behavior is illegal under federal antitrust law, but that hypercompetitive behavior is not. The panel explained that its role was to assess whether the FTC has met its burden under the rule of reason to show that Qualcomm's practices have crossed the line to "conduct which unfairly tends to destroy competition itself." The panel concluded that the FTC has not met its burden. The panel held that Qualcomm's practice of licensing its standard essential patents (SEPs) exclusively at the original equipment manufacturers (OEM) level does not amount to anticompetitive conduct in violation of section 2 of the Sherman Act, as Qualcomm is under no antitrust duty to license rival chip suppliers; Qualcomm's patent-licensing royalties and "no license, no chips" policy do not impose an anticompetitive surcharge on rivals' modem chip sales; rather, these aspects of Qualcomm's business model are "chip-supplier neutral" and do not undermine competition in the relevant antitrust markets; Qualcomm's 2011 and 2013 agreements with Apple have not had the actual or practical effect of substantially foreclosing competition in the CDMA modem chip market; and because these agreements were terminated years ago by Apple itself, there is nothing to be enjoined.

Craft Smith v. EC Design

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-4087

Opinion Date: August 11, 2020

Judge: Gregory Alan Phillips

Areas of Law: Antitrust & Trade Regulation, Copyright

Since 2007, EC Design, LLC, sold its popular personal organizer, the LifePlanner. In 2015, Craft Smith, Inc., wanting to enter the personal-organizer market, reached out to EC Design about a possible collaboration. EC Design and Craft Smith couldn't agree to a collaboration. Craft Smith, with input from Michaels Stores, Inc., designed and developed a personal organizer to sell in Michaels stores, leading to this action in Utah federal district court. EC Design claims the Craft Smith and Michaels product infringed on the LifePlanner’s registered compilation copyright and unregistered trade dress. The district court disagreed, granting summary judgment in favor of Craft Smith and Michaels (collectively, the Appellees) on both issues. On the copyright issue, the district court concluded that EC Design did not own a valid copyright in its asserted LifePlanner compilation. On trade dress, the district court held that EC Design had failed to create a genuine issue of material fact over whether the LifePlanner’s trade dress had acquired secondary meaning. Though the Tenth Circuit disagreed with how the district court framed the copyright issue, the Tenth Circuit affirmed because no reasonable juror could conclude that the allegedly infringing aspects of Appellees’ organizer were substantially similar to the protected expression in the LifePlanner compilation. With respect to the trade dress issue, the Tenth Circuit agreed with the district court: EC Design had failed to create a genuine issue of material fact over whether the LifePlanner’s trade dress had acquired secondary meaning. Summary judgment as to both claims was affirmed.

SmileDirectClub, LLC v. Battle

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-12227

Opinion Date: August 11, 2020

Judge: Anderson

Areas of Law: Antitrust & Trade Regulation, Civil Rights, Constitutional Law, Health Law

SmileDirect filed suit against the Georgia Board of Dentistry, including the Board’s members in their individual capacities, alleging inter alia, antitrust, Equal Protection, and Due Process violations related to the amendment of Ga. Bd. of Dentistry R. 150-9-.02. On appeal, the Board members challenged the denial of their motion to dismiss the complaint with respect to the alleged antitrust violations. After determining that it does have appellate jurisdiction under the collateral order doctrine, the Eleventh Circuit affirmed, holding that, based on the facts alleged in SmileDirect's complaint, the Board members are not entitled to state-action immunity under Parker v. Brown, 317 U.S. 341 (1943), at this point in the litigation, and the district court properly denied their motion to dismiss. In this case, the Board members have failed to satisfy the Midcal test by failing to meet the "active supervision" prong of the test and both prongs are necessary to satisfy the test. Furthermore, the court rejected the Board members' argument that ipso facto state-action immunity is available merely because of the Governor's power and duty, and without regard to his actual exercise thereof. The court explained that the Board members have established no more than the mere potential for active supervision on the part of the Governor, and thus they have fallen far short of establishing that the amended rule was "in reality" the action of the Governor.