When the Supreme Court agrees to consider a case from the U.S. Court of Appeals for the 9th Circuit or any other court, at least one party is expected to rise in defense of the decision below. If it's the 9th Circuit, the Court usually strikes down the decision anyway, but it has at least heard one voice in support of what the 9th Circuit had to say.
But not today. The Court heard arguments in an antitrust case Pacific Bell Telephone Co. v. LinkLine Communications, and among the four lawyers who argued, not one supported the 9th Circuit decision that Pacific Bell was asking the Court to overturn. As one veteran lawyer in the audience said afterward, "I've been to many arguments in my life, and this is the first time I have heard no one speak in support of affirmance of the judgment below."
Chief Justice John Roberts Jr. remarked on the odd circumstance at the beginning of the hour, telling Pacific Bell's lawyer Aaron Panner, "You are probably feeling pretty good about your chances since your opponent has given up, right?" Panner is a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel. But at the time Roberts made the comment, the fourth lawyer scheduled to argue -- Richard Brunell of the American Antitrust Institute -- was expected to support the 9th Circuit at least as a fallback position. As it turned out, even that support did not materialize.
Without getting too deep in antitrust weeds, here's how the case breaks down. LinkLine and other independent Internet service providers sued PacificBell claiming, among other things, a "price squeeze" violation under the Sherman Act in the sale of DSL services. In other words, LinkLine claimed that PacBell was charging too much at wholesale for LinkLine and others to buy the service, while charging PacBell's own retail customers too little -- thereby making it impossible for LinkLine to compete at the retail level.
While this antitrust doctrine has lost its luster in recent years, the 9th Circuit ruled for LinkLine and allowed its suit to proceed. PacBell appealed, asserting that price squeeze claims are precluded by recent precedent. The solicitor general agreed with PacBell, but the more consumer-oriented Federal Trade Commission refused to go along, issuing its own statement on the case.
After the Court granted review in the case, LinkLine switched gears, abandoning the price squeeze claim, recasting it as a predatory pricing case, and urging the justices to vacate and remand the case to the 9th Circuit -- not to affirm the ruling, as parties who win in the court below usually favor. When this happens, if the Court still wants to decide the issue, it will sometimes appoint a lawyer on its own to defend the judgment below.
That's where the American Antitrust Institute came in. It filed a motion seeking divided argument time -- which the Court almost never agrees to when requested by a nongovernment trade or advocacy group. But in his motion Brunell said, "If the Court does not dismiss the writ, the judgment of the 9th Circuit should be affirmed." Because of the briefing thus far, he added, "the judgment of the 9th Circuit will be undefended" unless the Court gave him argument time.
Today, during his 15 minutes at the lectern, Brunell urged instead that the 9th Circuit ruling be vacated and remanded to the district court to decide whether LinkLine's complaint should be amended. Brunell ably explained various antitrust doctrines, but never gave the full-throated defense of the lower court decision that justices usually expect. The justices did not seem to mind that much; the case was well argued by all four lawyers -- Panner, Brunell, Deanne Maynard of the solicitor general's office, and Maxwell Blecher of Los Angeles' Blecher & Collins who represented LinkLine. The justices seemed engaged and eager to say something about price squeeze claims. Though it's hard to predict exactly what they'll say, they are very unlikely to ignore all four lawyers before them and uphold the 9th Circuit. No surprise there.
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