High Court Will Not Review Antitrust, False Advertising Rulings

This posting was written by Darius Sturmer, Editor of CCH Trade Regulation Reporter.

The U.S. Supreme Court on March 17 denied review of the following trade regulation decisions:

 Antitrust standing. Microsoft Corporation requested review of whether a plaintiff who does not participate in a market where competition was allegedly restrained can suffer an antitrust injury. As a result of the denial of review, a decision of the U.S. Court of Appeals in Richmond, Virginia (2007-2 Trade Cases ¶75,901), holding that a developer of business software applications had standing to sue Microsoft for allegedly engaging in anticompetitive conduct in the PC operating system market, will remain standing. The petiton is Microsoft Corporation v. Novell, Inc., Docket No. 07-924, filed January 9, 2008.

 Termination of physician staff privileges. A physician whose staff privileges had been terminated asked for Supreme Court review of a ruling by the U.S. Court of Appeals in Philadelphia (2007-2 Trade Cases ¶75,905), affirming dismissal of his antitrust claims against two hospitals, several health systems, and numerous other persons and entities. The petition questioned (1) whether state action applies to private conduct undertaken pursuant to mandatory government statues; (2) whether the Civil Rights Act protects against discrimination by natural origin; and (3) whether the issuance of judicial opinions as “non-precedential” violates the Constitutional guarantee of equal protection of the laws. The petition is Untracht v. Fikri, Docket No. 07-932, filed January 11, 2008.

 Lanham Act false advertising. A fast food franchisee asked the Supreme Court to review the question of whether a company suffering a competitive injury caused by the false advertising of its primary competitor could nevertheless lack prudential standing to bring Lanham Act, Section 43(a) false advertising claims against the competitor. Left standing was a holding by the U.S. Court of Appeals in Atlanta (2007-1 Trade Cases ¶75,751) that the franchisee lacked standing because the causal chain linking the competitor’s misrepresentations to the franchisee’s injuries was too tenuous. The petition is Phoenix of Broward, Inc. v. McDonald’s Corp., Docket No. 07-659, filed November 19, 2007.