A customer can't sue two retailers for illegal collusion unless he can show that he suffered actual damages, according an opinion issued this week by the Ninth Circuit. In Gerlinger v. Amazon.com, Inc., plaintiff challenged an agreement under which the book retailer Borders Group, Inc.'s web site directed shoppers to a site hosted by Amazon. The books purchased on that site were sold and shipped by Amazon, and Borders received a commission for each sale.
Plaintiff, a customer of Amazon, claimed that Borders' commitment not to sell books directly on the internet during the term of the agreement amounted to a per se market allocation in violation of federal antitrust law. The Ninth Circuit never addressed the legality of the agreement, instead affirming summary judgment in favor of defendants on the ground that plaintiff could not show that the prices he paid for books increased as a result of the agreement. In fact, Amazon offered evidence that book prices declined after the agreement became effective. Without proof of an "injury-in-fact," the customer could not challenge Borders' agreement to stay out of the on-line market.
Coincidentally, on the same day as the Ninth Circuit's ruling, Borders announced that it was ending its seven-year relationship with Amazon and launching its own e-commerce web site.
The June 2008 issue of Washington Healthcare News includes an article by blog contributor Kathy Feldman, who practices employment law in Ater Wynne's Seattle office. The article addresses employment discrimination, including the six protected classes of employees, and ways to prevent potentially costly claims of discrimination.
The Oregon Supreme Court handed Oregon employers a huge victory today, finding that employees have no private right of action for missed breaks under Oregon wage and hour laws. The Court of Appeals in Gafur v. Legacy Good Samritan Hospital had interpreted BOLI’s administrative rule, OAR 839-020-0050, to require four hours' pay for every three hours and 50 minutes of work. The Supreme Court reversed, finding that BOLI’s rest break requirement is intended to benefit the employees’ physical and mental well-being, not to provide a source of additional income from employers who violate the rule.
With the prevalence of class action wage and hour litigation, the Court of Appeals decision had been a huge concern to employers, many of whom rarely monitor break periods, for reasons including the difficulty of tracking the time and the desire to allow employees more flexibility and responsibility for their time management. Absent close monitoring of employees’ time, any employee could claim that he or she missed a break on any given day and there would be little the employer could do to prove otherwise. Today's ruling eliminates that possibility.
Under Oregon statutory law, at 648.135(1), a person operating under an assumed business name cannot file suit on behalf of that business unless the assumed name is registered with the state. The Oregon Court of Appeals held last week that, even if a party lacked standing to sue because its business name was unregistered, its filing of a registration while the lawsuit is pending can cure the defect.
In Pacific Coast Recovery Service, Inc. v. Janice Jean Johnston, a collection agency appealed from a judgment of dismissal, arguing that the trial court erred in holding that the collection agency lacked standing to maintain an action for breach of contract. The trial court had determined that, because the collection agency's assignor -- the business that had retained the agency to collect the debt -- had not registered its assumed business name under ORS 648.007 at the time the action was filed, the collection agency was precluded from pursuing its lawsuit.
In reversing the trial court, the Court of Appeals held that, because the collection agency's assignor had registered by the time the trial court ruled on the motion to dismiss, the asserted lack of standing had been "cured" before the trial court granted the motion to dismiss. The statutory "cure" will not, however, help plaintiffs where the statute of limitations has expired before registration of the assumed business name. In those circumstances, according to the Court of Appeals, the action will be barred.
Earlier this week a jury ordered Payless Shoesource, Inc. to pay more than $304 million in damages to Adidas America, Inc., for trademark infringement. The federal court jury in Portland found that 267 Payless shoe styles infringe on Adidas' trademarks. The infringing styles included shoes with 2 and 4 stripes, and not just the 3-stripe design long associated with Adidas. The verdict, consisting of $30.6 million in actual damages, $137 million in punitive damages, and $137 million in Payless profits, is believed to be the largest ever in a trademark infringement case.
See coverage of the trial here and here.
In a unanimous opinion with one concurrence, the Oregon Supreme Court yesterday upheld the dismissal of a large class action of smokers who sought injunctive relief for "medical monitoring, smoking cessation and education." Plaintiffs are some 400,000 smokers who have no present symptoms, but sought to have a group of tobacco companies fund a program to cover the cost of CT scans and other diagnostic tests to identify future harm from smoking. Even though they lack of any present injury, plaintiffs contended they could maintain an action for such relief based on the defendant tobacco companies' negligence. The Court disagreed, holding that a common law negligence claim requires a present physical injury: "The complaint does not allege that plaintiff has suffered any present physical harm as a result of defendants' conduct. The complaint alleges only that plaintiff has suffered a 'significantly increased risk of developing lung cancer' in the future." The Court continued:
"Oregon law has long recognized that the fact that a defendant's negligence poses a threat of future physical harm is not sufficient, standing alone, to constitute an actionable injury. As this court has explained, 'the threat of future harm, by itself, is insufficient as an allegation of damage in the context of a negligence claim.' Zehr, 318 Or at 656; see also Bollam v. Fireman's Fund Ins. Co., 302 Or 343, 347, 730 P2d 542 (1986) (holding that "'[t]he threat of future harm, not yet realized, is not enough'") (quoting W. Page Keeton, Prosser & Keeton on Torts 165 (5th ed 1984)). As Prosser explains,
Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff's case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.
Keeton, Prosser & Keeton on Torts at 165 (footnotes omitted). Accordingly, a plaintiff's cause of action does not accrue, and the statute of limitations on that cause of action does not begin to run, until the plaintiff has suffered an "'actual loss.'" Bollam, 302 Or at 347 (quoting Prosser and Keeton on Torts at 165)."
You can find the full opinion here.