Month: July 2017

On November 29, 2016, the Supreme Court decided Bravo-Fernandez v. United States. A jury convicted petitioners Juan Bravo-Fernandez and Hector Martínez-Maldonado of bribery in violation of 18 U. S. C. §666 but acquitted them of conspiring to violate §666 and traveling in interstate commerce to violate §666. The jury’s verdicts were therefore irreconcilably inconsistent, and the petitioners’ convictions were later vacated on appeal because of error in the judge’s instructions unrelated to this inconsistency. On remand, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charg­es, arguing that the issue-preclusion component of the Double Jeopardy Clause barred the Government from retrying them on those charges. The District Court denied the motions, and the First Circuit affirmed. -- The question before the Supreme Court was whether the eventual invalidation of petitioners’ §666 convictions undermined the United States v. Powell instruction that issue preclusion does not apply when the same jury returns logically inconsistent verdicts. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the First Circuit. In an opinion by Justice Ginsburg, the Court held that the issue-preclusion component of the double jeopardy clause, which bars a second contest of an issue of fact or law raised and necessarily resolved by a prior judgment, does not bar the government from retrying defendants after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency. Justice Thomas filed a concurring opinion. -- And now, to discuss the case, we have Paul Crane, who is Assistant Professor of Law at the University of Richmond School of Law.

On May 30, 2017, the Supreme Court decided Impression Products, Inc. v. Lexmark International, Inc. Lexmark International, Inc. (Lexmark), which owns many patents for its printer toner cartridges, allows customers to buy its cartridges through a “Return Program,” which is administered under a combination single-use patent and contract license. Customers purchasing cartridges through the Return Program are given a discount in exchange for agreeing to use each cartridge once before returning it to Lexmark. All of the domestically-sold cartridges at issue here and some of those sold abroad were subject to the Return Program. Impression Products, Inc. (Impression) acquired some Lexmark cartridges abroad--after a third party physically changed the cartridges to enable their re-use--in order to resell them in the United States. Lexmark then sued, alleging that Impression had infringed on Lexmark’s patents because Impression acted without authorization from Lexmark to resell and reuse the cartridges. Impression contended that its resale of the cartridges was not an infringement because Lexmark, in transferring the title by selling the cartridges initially, granted the requisite authority. The district court granted Impression’s motion to dismiss as it related to the domestically sold cartridges but denied it as to the foreign-sold cartridges. The U.S. Court of Appeals for the Federal Circuit reversed the district court’s judgment as to the domestically sold cartridges but affirmed dismissal regarding the cartridges sold abroad. -- There were two questions before the Supreme Court: (1) whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. -- By a vote of 7-1, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that (1) Lexmark exhausted its patent rights in toner cartridges sold in the United States through its "Return Program"; and (2) Lexmark cannot sue Impression Products for patent infringement with respect to cartridges Lexmark sold abroad, which Impression Products acquired from purchasers and imported into the United States, because an authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan. Justice Ginsburg filed an opinion concurring in part and dissenting in part. Justice Gorsuch took no part in the consideration or decision of the case. -- And now, to discuss the case, we have Adam Mossoff, who is Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University.

On June 12, 2017, the Supreme Court decided Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case. -- The question before the Supreme Court was whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. -- By a vote of 8-0, the Court reversed the decision of the Ninth Circuit and remanded the case. In an opinion by Justice Ginsburg, the Court held that Federal courts of appeals lack jurisdiction under 28 U. S. C. §1291 to review an order denying class certification (or, as in this case, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in the judgment, in which the Chief Justice and Justice Alito joined. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Theodore H. Frank, who is Senior Attorney and Director of the Center for Class Action Fairness at the Competitive Enterprise Institute.

In today's episode, we discuss the recent controversy over Donald Trump, Jr.'s contact with Russian officials during the 2016 election. We begin, however, with a follow-up from Dave (and others) who asked us about doxxing. In our main segment, the guys break the law of conspiracy to discuss whether Donald Trump Jr.'s conduct is potentially criminal.  (Spoiler:  Yes.) Next, fan favorite segment "Are You A Cop?" returns with a question about taxation without representation. Finally, we end with an all-new Thomas Takes the Bar Exam Question #32 about Section 1983 claims and acting under "color of law."  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  But you can come join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017!  Get your tickets now! Show Notes & Links

1. You can read Sarah Jeong's excellent article, "Stop Diluting the Defintion of Dox," here.
2. This is 18 U.S. Code § 371, the federal conspiracy statute.
3. And here is a link to the Cockrum, Comer & Schoenberg complaint.

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