Monday, May 24, 2010

Supreme Court: Tide Change for Antitrust Plaintiff

Today, the Supreme Court issued a unanimous decision in favor of antitrust plaintiff, American Needle, Inc., a company that had previously manufactured and sold NFL-branded items, and which was challenging the NFL's exclusive licensing agreement with Reebok.  The Court concluded that "the NFL’s licensing activities constitute concerted action that is not categorically beyond the coverage of § 1 [of the Sherman Act]."  As former Solicitor General Paul Clement noted in a panel discussion earlier this month, this breaks a recent eight-case winning streak for antitrust defendants (in the Roberts era):

"By my count, the Roberts Court has had, before this term, eight antitrust cases.  What is striking is that . . . the antitrust plaintiff has lost in all eight cases.  Even more striking, in the main, with really only one exception, these have not been 5-4 cases. . . . [I]n these eight antitrust cases, there have been nine votes total for the antitrust plaintiff and four of those came in a single case.  So, these have been lopsided cases . . . against the antitrust plaintiff."

Expressing skepticism as to the NFL's single-entity claim, Clement also correctly predicted that American Needle may be the case to buck that trend.  "[A]s a lifelong Packers fan," he said, "I don't think a Minnesota Vikings jersey and a Green Bay Packer[s] jersey are close substitutes.  I am not really interested in a Vikings jersey, particularly one with a number four on the back."

Appellate Daily posts previously covered this panel discussion, linked here and here, held at the Sixth Circuit Judicial Conference, on May 5, 2010.