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Practice Pointer: Oral Argument in Pacific Bell v. linkLine Communications

One of the more interesting orders on Monday’s order list came in No. 07-512, Pacific Bell v. linkLine Communications, which is set for oral argument on December 8.  On Monday the Court granted the Solicitor General’s motion for divided argument, which was hardly surprising (it would only be news if the Court denied such a motion from the SG).  More unexpected, however, was the next sentence:  “The motion of American Antitrust Institute for leave to participate in oral argument as amicus curiae and for divided argument is granted and the time is to be divided as follows:  15 minutes for respondents, and 15 minutes for amicus curiae American Antitrust Institute.”  Although motions like AAI’s are not uncommon, it’s fairly unusual for the Court to actually grant a private amicus argument time – much less more time than the ten minutes that AAI had requested.  So what gives? 

The answer can be found in AAI’s motion for divided argument.  AAI explains that although the question presented in linkLine is whether Section 2 of the Sherman Act permits a “price squeeze” claim when the defendant has no duty to deal, “respondents have essentially conceded the question and abandoned their price-squeeze claim.  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.”  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 “should be permitted to participate in oral argument because . . . the judgment of the Ninth Circuit will be undefended.”   Such a result is particularly undesirable, AAI further explains, because the United States is likely to argue that “a price squeeze should be eliminated as an independent antitrust offense” – an issue that AAI “has vigorously contested . . . in its brief” but which respondents did not address.

More broadly, the disposition of AAI’s motion may serve as a useful practice pointer for other private amici seeking argument time.  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 “unique perspective” (which works for the U.S. and, generally, the states) is usually not enough.