The “When” of Chevron: The Missed Opportunity of County of Maui

SAMUEL ESTREICHER, DANIEL FOLSOM

NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.

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The Unnecessary Protection of Qualified Immunity

JOANNA C. SCHWARTZ, SETH STOUGHTON

UCLA law professor Joanna C. Schwartz and South Carolina law professor Seth W. Stoughton address some of the arguments commonly asserted to support qualified immunity, the doctrine that shields police officers from civil liability for constitutional violations. Schwartz and Stoughton argue that eliminating qualified immunity should not affect police decision-making and that existing Supreme Court doctrine gives police officers plenty of leeway to make mistakes without violating the Constitution. Because qualified immunity applies only to unreasonable actions by police officers, eliminating or substantially restricting it should not a chilling effect on police officers’ ability or willingness to respond to critical incidents.

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In re: Processed Egg Products Antitrust Litigation

Court: US Court of Appeals for the Third Circuit

Docket: 19-1088

Opinion Date: June 22, 2020

Judge: Jordan

Areas of Law: Agriculture Law, Antitrust & Trade Regulation

In a purported class action, egg purchasers claimed that egg producers conspired to inflate prices by early slaughtering of hens and similar supply-reducing steps; creation of an animal welfare certification program that was actually designed to reduce the egg supply; and coordinated exports of eggs, all as part of a single overarching conspiracy that was anti-competitive per se and unlawful under the Sherman Act, 15 U.S.C. 1. The defendants countered that the court should look at each alleged stratagem of the conspiracy separately and determine whether to apply the per se standard for antitrust liability or the more commonly-applied rule of reason. In summary judgment briefing, the parties focused on the Certification Program, which the court evaluated under the rule of reason. The case proceeded to trial with all three stratagems being evaluated under that standard. Following the jury’s verdict, the court entered judgment for the defendants. The Third Circuit affirmed. Courts can consider the different components of an alleged conspiracy separately when determining which mode of antitrust analysis to apply. The Certification Program was not an express horizontal agreement to reduce the supply of eggs, much less to fix prices and it is not clear that the Program would “have manifestly anticompetitive effects and lack any redeeming virtue.” It was properly analyzed under the rule of reason.

Black Bear Sports Group, Inc. v. Amateur Hockey Association of Illinois, Inc.

Court: US Court of Appeals for the Seventh Circuit

Dockets: 19-2450, 19-2076

Opinion Date: June 22, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Antitrust & Trade Regulation, Entertainment & Sports Law

U.S. organized amateur hockey leagues come under the purview of USA Hockey, Inc., which is subject to the Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. 220501–43. USA Hockey delegates most of its authority to state and regional affiliates. Since 1975, the Association has governed the sport in Illinois. Black Bear, which owns Illinois skating rinks, filed suit under the Sherman Antitrust Act, 15 U.S.C. 2, alleging that the Association is monopolizing the sport. Black Bear does not claim to have paid monopoly prices, nor does it seek an order dissolving the Association and allowing free competition. It asked the district judge to order the Association to admit it as a member and permit it to sponsor a club and to pay damages for business losses suffered until these things occur. The Seventh Circuit affirmed the dismissal of the suit for lack of jurisdiction. The Sherman Act cannot be used to regulate cartels’ membership and profit-sharing. Members and potential members can enforce (or contest) its rules as a matter of state law, though a private group receives considerable leeway in the interpretation and application of those rules.

Pike v. Texas EMC Management, LLC

Court: Supreme Court of Texas

Docket: 17-0557

Opinion Date: June 19, 2020

Judge: Busby

Areas of Law: Antitrust & Trade Regulation, Business Law

This case case arising out of the breakup of a limited partnership created to produce and market a new cement product the Supreme Court reversed in part the judgment of the court of appeals largely affirming the judgment of the trial court in favor of the limited partnership and a technology-supplying partner, holding that Plaintiffs failed to present legally sufficient evidence of damages and that the technology-supplying partner was not entitled to a permanent injunction for misappropriation of trade secrets. The partnership, its general partner, and the limited partner that supplied the cement-making technology sued the limited partners responsible for funding, the general manager of the partnership, and the companies that foreclosed on and purchased the partnership's assets. Defendants asserted counterclaims. The court of appeals largely affirmed. The Supreme Court reversed in part and affirmed in part, holding (1) the damage awards were not supported by legally sufficient evidence; (2) the technology-supplying partner was not entitled to a permanent injunction for misappropriation of trade secrets; and (3) the company that purchased the partnership's assets and promissory note did not prove it was entitled to judgment as a matter of law on its counterclaim for the partnership's failure to pay a deficiency balance on the note.