Kavanaugh v. Gorsuch

An interesting antitrust opinion with a 5-4 split involving Apple pitted the two newest Justices against each other yesterday.  From the New York Times:

The Supreme Court on Monday allowed an enormous antitrust class action against Apple to move forward, saying consumers should be allowed to try to prove that the technology giant had used monopoly power to raise the prices of iPhone apps.

The lawsuit is in its early stages, and it must overcome other legal hurdles. But the case brings the most direct legal challenge in the United States to the clout that Apple has built up through its App Store. And it raises questions about how the company has wielded that power, amid a wave of anti-tech sentiment that has also prompted concerns about the dominance of other tech behemoths such as Facebook and Amazon.

The court’s 5-to-4 vote featured an unusual alignment of justices, with President Trump’s two appointees on opposite sides. Justice Brett M. Kavanaugh, who joined the court in October, wrote the majority opinion, which was also signed by the court’s four more liberal justices. Justice Neil M. Gorsuch, who joined the court in 2017, wrote the dissent.

The class-action lawsuit focuses on the fees that Apple takes on sales in its App Store, which millions of people use every day to download games, messaging apps and other programs. The company charges up to a 30 percent commission to developers who sell their products through its store, bars them from selling their apps elsewhere and plays a role in setting prices. App makers have long complained that the fee and other practices are unfair.

Scotus has more here.

"Kim Kardashian is the hero that criminal justice reform needs"

That's the title of my latest piece in The Hill, which you can read here.  The introduction:

A lot of people talk the talk about criminal justice reform, even though their records on reform are ... shall we say ... not sparkling. There are very few people who walk the criminal justice reform walk. Kim Kardashian is one of those actually working to make change. It shouldn’t be a big surprise that Kardashian has a deep-rooted passion for criminal defense as her dad, Robert, was also a well-known lawyer. 

She’s successfully working with President Trump on commutations and pardons. Kardashian saw a story on Twitter about Alice Marie Johnson and didn’t just retweet it. She did something and made it her mission to help the first-time nonviolent drug offender who was sentenced to life. She met with Johnson and then met with Trump. After 21 years in prison, Johnson was released. Kardashian literally saved her life and was quoted after hearing that Johnson was going to be released: "We cried, maybe, on the phone for, like, three minutes straight. Everyone was just crying." 

She’s funding lawyers who are working on freeing other inmates. There is so much work to be done with our over-incarceration problem because of the old War on Drugs policies, which resulted in thousands of people convicted of low-level drug offenses doing monster prison sentences, including life.  Kardashian is funding lawyers who are working on The Decarceration Collective and other initiatives (like #cut50 with Van Jones), including putting to work the First Step Act, the recent law meant to reform our criminal justice issues. In just the last 90 days, she has helped to free 17 prisoners. It’s truly remarkable work.

“Warning: Unavoidable Acronyms Ahead.”

Ha.  That’s Judge Newsom in this 11th Circuit opinion today:

Flat Creek is a commercial trucking company that transports non-hazardous materials—mainly refrigerated food products. Because it operates in interstate commerce, Flat Creek is subject to Department of Transportation regulations. And because its claim in this case arises against the backdrop of that regulatory framework, we begin with an overview. (Warning: Unavoidable Acronyms Ahead.)

BREAKING -- RAAG SINGHAL BEING VETTED FOR OPEN DISTRICT SLOT

Great news -- Judge Raag Singhal is being vetted for an open district court seat in Ft. Lauderdale.  He currently sits on the Broward state bench (he was appointed by Rick Scott back in 2011 and was re-elected in 2014) and has wide support on both sides of the aisle.  He's a former state prosecutor and private defense lawyer.  Plus, he's a really good guy.  Here's hoping that he gets nominated and confirmed quickly.  After that, there will still be one opening left.  It's unclear whether the JNC will be reconstituted or whether Senators Rubio and Scott will just select someone.

CONGRATULATIONS TO JUDGE SINGHAL!

Judge Ruiz sworn in

There was a really nice informal swearing-in of Judge Ruiz at lunchtime today in Judge Moore's courtroom.  Judge Moreno -- who Judge Ruiz clerked for -- did the honors for a packed courtroom.  Here are some shots:

CONGRATULATIONS TO RUDY RUIZ

Our newest judge for the Southern District of Florida, confirmed 90-8.

Awesome.

Rudy Ruiz will be confirmed shortly

The motion to invoke cloture on Rodolfo Armando Ruiz II was agreed on 89-10.  He will be confirmed by the end of the week.

Judges, get your new set of transfer orders ready.

"Immoral and barbaric"

That was Judge Bob Scola in his recusal order discussing United Health's decision not to cover proton radiation treatment. More:

In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical
experts throughout the country. All the experts opined that if I opted for
radiation treatment, proton radiation was by far the wiser course of action.
Although the Court opted for surgery, rather than radiation, those opinions
still resonant.
Further, a very close friend of the Court was diagnosed with cancer in
2015. He opted to have proton radiation treatment at M.D. Anderson in
Houston. His health care provider, United Healthcare, refused to pay for the
treatment. Fortunately, he had the resources to pay $150,000 for the treatment
and only upon threat of litigation did United Healthcare agree to reimburse
him.
It is undisputed among legitimate medical experts that proton radiation
therapy is not experimental and causes much less collateral damage than
traditional radiation. To deny a patient this treatment, if it is available, is
immoral and barbaric.
The Court’s opinions in this matter prevent it from deciding this case
fairly and impartially.

Thankfully Judge Scola is healthy again. And what an amazing order.