• From the Section Cochairs
• Upcoming Section Event
• Standing Committee Reports
  • Consumer Law Committee
  • Antitrust Law Committee
• Calling all Candidates
• Volunteer and Outreach Opportunities
• Conversation Starter
• Steering Committee

As we start a new calendar year we look forward, as always, to interesting and important section activities. But we also face increasing challenges to our efforts to provide our members with valuable services at a reasonable price. Be assured that your section leadership will work hard throughout the year to continue to provide you with informative programs and the networking opportunities you desire while keeping program and membership costs affordable.

We will begin the new year with a program sponsored by our Consumer Law Committee on restaurant posting of nutrition information and the government’s role in regulating consumer eating habits. This will be the first of many section events that we believe you will find enjoyable and beneficial. We eagerly anticipate meeting and interacting with each of you in 2010.

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Panelists: Sally Greenberg, National Consumers League; J. Justin Wilson, Center for Consumer Freedom; Beth Johnson, National Restaurant Association; Drew Newman, Legislative Counsel for D.C. Councilmember Mary Cheh.

The event is free, but registration is required. Register Now!

12 pm–1:30 pm; D.C. Bar Conference Center, District of Columbia Bar, 1101 K Street N.W., Washington, DC 20005

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The Consumer Law Committee’s event, held on October 27, 2009, at GW Law School in collaboration with GW’s Public Interest and Public Service Law Program, was very well-attended. The panelists debated whether the proposed new Consumer Financial Protection Agency will be a practical and significant force for protecting consumers. If you would like a recording of this event, please let us know and we will send you a copy.

Please join us for our next event, which will be held on January 27, 2010 at the D.C. Bar, and will address the topic, “What Role, If Any, Should the Government Play in Promoting Healthy Eating for the American Public? Menu Labeling Laws and Beyond….” The committee is planning additional events on the topics of private attorney general actions and the possible need for reform of D.C.’s non-judicial mortgage foreclosure law.

The committee welcomes participation by section members and invites your participation and suggestions for programs and activities. Please contact us with any ideas or questions you may have.

Antitrust Law Committee Report
Don Resnikoff and Grace Kwon

The Antitrust Law Committee takes advantage of the local availability of antitrust enforcement officials and antitrust experts to provide educational programs, and keeps members updated about issues that are important to this practice area. Please contact Antitrust Committee Chair Don Resnikoff or Vice Chair Grace Kwon if you would like more information or are interested in becoming involved in any of the committee’s activities. The committee holds regular monthly meetings and invites all interested persons to join. Send an email to Don or Grace and we’ll give you time and place information for our next meeting.

On October 21 the committee presented a luncheon program cosponsored by the ABA. The topic was retail price maintenance. Experienced litigators addressed trial practice issues remaining in the wake of the U.S. Supreme Court’s decision in Leegin. Topics included proof elements of a successful rule–of–reason claim permitted under Leegin, and whether the U.S. Supreme Court has left room for the development of a modified per se rule or use of presumptions. Panelists also discussed proof elements under state laws that repeal or appear to contradict Leegin.

Lloyd Constantine helped stir things up with provocative comments. He suggested that the U.S. Supreme Court's Leegin opinion leaves little room for plaintiffs to succeed, despite the view of some that the Court opinion creates helpful presumptions. Economist George Rozanski offered insights, as did Tyler Baker and Dan Small.

The ABA recorded the retail price maintenance program, which may be accessed on the ABA Web site.

Several interesting programs are in the planning stage, although firm dates have not been set. Among them will be a program on New York state’s antitrust suit against Intel, and another on issues in electronic banking.

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Are you looking for the opportunity to offer just a few hours of help to people who really need it? See Bread for the City to get information about an organization dedicated to serving needy and underrepresented D.C. residents. Section members can make a difference in someone’s life by participating in the D.C. Bar Pro Bono Program’s monthly Advice and Referral Clinic at Bread for the City, the second Saturday of each month, from 9:30 a.m. until 12:30 p.m. Volunteers give quick, on–the–spot advice on a broad base of legal topics and suggest referrals. No follow–up assistance or representation is necessary. The section has committed to furnish one or two volunteers each month. If you are interested in volunteering, contact the section’s Outreach Coordinators, Christine Naglieri and Leonor Velazquez.

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A recent D.C. Superior Court decision permitted a private attorney general action based on D.C. statute law to go forward, although the plaintiff claimed no injury to himself. A recent federal D.C. Circuit opinion dismissed a private attorney general action based on constitutional principles requiring a claim of injury. Was one opinion right and the other wrong? Or is comparison misplaced because of differences in relevant facts and law? Take a look at the cases cited below, and send an e–mail to the editors if you have an opinion you wish to share.

In Grayson v. AT&T Corporation, 980 A.2d 1137 (D.C. 2009), the District of Columbia Court of Appeals held that D.C.’s consumer protection laws permit consumers to sue businesses for an unfair business practice as a “private attorney general” without alleging injury.

The District of Columbia Consumer Protection Procedures Act (CPPA), D.C. Code §§ 28-3901 et seq. (2009 supp.), prohibits various unlawful trade practices. As amended in 2000, D.C. Code § 28-3905(k)(1) provides that “A person, whether acting for the interests of itself, its members, or the general public, may bring an action under this chapter in the Superior Court of the District of Columbia seeking relief from the use by any person of a trade practice in violation of a law of the District of Columbia * * *.”

Plaintiff Grayson sued AT&T, MCI, Sprint, and Verizon on the grounds that their retaining of remaining balances on abandoned prepaid calling cards violates the CPPA. Grayson argued that the amounts should escheat to D.C. government.

A D.C. trial court held that Grayson lacked standing because he claimed no injury and dismissed his action. The D.C. Court of Appeals reversed with regard to his CPPA claim and remanded the case to the trial court for further proceedings. The appellate court said that D.C. statute law is “intended to eliminate the requirement that [the plaintiff] experience an injury” in order to bring suit. Grayson, 980 A.2d at 1155.

The contrasting federal case is in American Society For The Prevention of Cruelty to Animals, et al., v Feld Enterntainment, Inc., (D.C. Cir, 2010), Civ. Action No. 03-2006 (EGS) Judge Sullivan wrote a lengthy opinion denying plaintiff standing to sue on constitutional grounds, despite a federal statute granting a broad right of citizens to sue. Lack of constitutionally required injury to plaintiff was a focus of the opinion. The length of the opinion may be explained by Sullivan's desire to note factual findings that circumvent an earlier appellate decision favoring plaintiff. Further appeal is possible.

The following language from the opinion suggests the Court’s thinking:

As discussed supra, Part I.B., Plaintiffs Rider and API bring this suit pursuant to the citizen–suit provision of the ESA, alleging that FEI’s use of the bullhook and chains on the Asian elephants in its circus performances “harms,” “harasses,” and “wounds” the elephants, and that those “takes” of the elephants, absent a Section 10 permit—which FEI does not have—are in violation of Section 9 of the ESA.10 In its defense, FEI argues, among other things, that plaintiffs lack the standing required to pursue these claims. Based on the following findings of fact and conclusions of law, the Court concludes that plaintiffs have failed to prove the standing required by Article III of the United States Constitution. This Court therefore lacks jurisdiction over plaintiffs’ claims. Because the Court concludes that plaintiffs lack standing, the Court does not—and indeed cannot—reach the merits of plaintiffs’ allegations that FEI “takes” its elephants in violation of Section 9 of the ESA. Accordingly, for the reasons set forth below, judgment will be entered for the defendant.

Judge Sullivan’s opinion is available.

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Newsletter Editors: Mike McNeely and Don Resnikoff

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