Practice Pointer: Oral Argument in Pacific Bell v. linkLine Communications
on Nov 19, 2008 at 11:02 am
One of the more interesting orders on Mondayâ€™s order list came in No. 07-512, Pacific
The answer can be found in AAIâ€™s motion for divided argument.Â AAI explains that although the question presented in linkLine is whether Section 2 of the Sherman Act permits a â€œprice squeezeâ€ claim when the defendant has no duty to deal, â€œrespondents have essentially conceded the question and abandoned their price-squeeze claim.Â They argue that the judgment below should be vacated and that they be permitted to amend their complaint to further develop their allegations that petitioners engaged in predatory pricing at the retail level.â€Â AAI contends that if the case is not dismissed as moot (a step that AAI had urged the Court to take in its amicus brief), it â€œshould be permitted to participate in oral argument because . . . the judgment of the Ninth Circuit will be undefended.â€Â Â Such a result is particularly undesirable, AAI further explains, because the United States is likely to argue that â€œa price squeeze should be eliminated as an independent antitrust offenseâ€ â€“ an issue that AAI â€œhas vigorously contested . . . in its briefâ€ but which respondents did not address.
More broadly, the disposition of AAIâ€™s motion may serve as a useful practice pointer for other private amici seeking argument time.Â Although this case may be an extreme example in that the respondents have conceded that the judgment below can be vacated, it demonstrates that the best chance for private amici to get argument time may lie in identifying a gap that, for whatever reason, would otherwise be left unaddressed at oral argument; offering a â€œunique perspectiveâ€ (which works for the U.S. and, generally, the states) is usually not enough.