Already LLC v. Nike - Oral Argument - November 07, 2012

Already LLC v. Nike

Media for Already LLC v. Nike

Audio Transcription for Opinion Announcement - January 09, 2013 in Already LLC v. Nike

Audio Transcription for Oral Argument - November 07, 2012 in Already LLC v. Nike

John G. Roberts, Jr.:

We'll hear argument first today in Case 11-982, Already, LLC, d/b/a YUMS v. Nike.

Mr. Dabney.

James W. Dabney:

Mr. Chief Justice, and may it please the Court:

The Article III question in this case turns on resolution of two issues: First, whether loss of freedom to operate on the part of a direct competitor qualifies as Article III injury in fact; and second, what party bears the burden of proof of facts that are contended by it to render a claim moot.

The counterclaim in this case seeks to extinguish a source of cost, risk, and official restraint on what footwear products the petitioner can and cannot legally sell.

These are classic forms of injury in fact.

On the burden of proof point, the proponent of a factual contention always bears the burden of proving this, and this is especially true, and the question arises in the context of a claim that a voluntary act has allegedly ousted a Federal court of jurisdiction.

Mootness doctrine protects a party seeking relief from the kind of evasive maneuvering that's happened in this case.

Anthony M. Kennedy:

If -- if I were to write an -- an opinion indicating that there's a chill here because distributors and retailers will see that there's been this suit against the -- your client and they will be reluctant to distribute, would there -- would I just make that up, or is there something I can read to find out -- find that out, or--

James W. Dabney:

Injury in fact is a question of fact, and injury in fact is based on evidence.

Anthony M. Kennedy:

--Well, the evidence here was that they did need investors, and investors were reluctant.

James W. Dabney:

That's correct.

Anthony M. Kennedy:

It wasn't specific evidence, but then I -- anything besides that?

James W. Dabney:

There are three forms of injury in this case.

The first is that the petitioner's cost of operation is increased because the disputed claim was not expunged.

When the petitioner designs and sells new products, it has to go through an incredibly costly process to determine whether or not its next line of shoes might give rise to a plausible claim--

Anthony M. Kennedy:


Is that -- is that in the record?

James W. Dabney:

--It certainly is.

The petitioner says through its president, on page 173 of the Joint Appendix, that he's engaged in new development of new shoe lines, which by definition are outside the scope of the covenant document.

Anthony M. Kennedy:

When you said it's incredibly costly to do this and so forth, is that in the record?

James W. Dabney:

That specific statement is not in the record.

Anthony M. Kennedy:

I mean, it makes sense, but I -- I'm a little reluctant to take judicial notice of the shoe business.

I mean--

James W. Dabney:

Your Honor, I'm glad you brought that up, because under the mootness doctrine, the burden of proof on that and every other fact relevant to mootness fell on the respondent.

Under this Court's precedents, the respondent in this case, in order to oust the district court of jurisdiction, had to show two things to a high degree of probability: The first thing the respondent had to show is that it was absolutely clear that the petitioner could not reasonably be expected to bring--

Stephen G. Breyer:

You're right, that's the standard.

And so you said that -- I mean, I feel perhaps more calmly about this than I might feel is warranted, but the -- the question is, is there anything here that you -- so you said by definition, we're going to produce some new shoes, which new shoes are not -- do not have the appearance of any current and/or previous footwear product designs and any colorable imitations thereof.

So I would like you to refer me to the record where your president of your client or somebody else says we are intending to produce some new shoes that fall outside that definition, and of course, I will look at that.

Because your opponent says we can find no reasonable likelihood that they are going to produce anything or they have any present intent of showing, of producing something that falls outside that definition.