Pacific Bell Telephone Co. v. LinkLine Communications - Oral Argument - December 08, 2008

Pacific Bell Telephone Co. v. LinkLine Communications

Media for Pacific Bell Telephone Co. v. LinkLine Communications

Audio Transcription for Opinion Announcement - February 25, 2009 in Pacific Bell Telephone Co. v. LinkLine Communications

Audio Transcription for Oral Argument - December 08, 2008 in Pacific Bell Telephone Co. v. LinkLine Communications

John G. Roberts, Jr.:

We will hear argument next this morning in Case 07-512, Pacific Bell v. Link Line Communications.

Mr. Panner.

Aaron Panner:

Mr. Chief Justice, and may it please the Court: The Court should reverse the Ninth Circuit's decision because it conflicts with this Court's holding in Trinko and is contrary to principles regarding unilateral pricing decisions as explained in Brooke Group and elsewhere.

John G. Roberts, Jr.:

You are probably feeling pretty good about your chances since your opponent has given up, right?


Aaron Panner:

Well, Your Honor, it's -- it is correct, as this Court observed in Roberts, that the Respondents' agreement that the legal position of the court below is incorrect certainly should provide this Court great comfort in reversing the decision of the Ninth Circuit.

And, indeed, a decision on the merits here is important because the Ninth Circuit's decision is harmful to consumers, deterring beneficial price cuts and sufficient partial vertical integration.

And it--

John G. Roberts, Jr.:

Do you have any question, or should we have, about the Article III status of this aspect of the dispute?

Aaron Panner:

--No, Your Honor.

The parties' agreement on a point of law does not deprive this Court of jurisdiction in any way, and the parties remain adverse in this case.

The Respondents continue to pursue a section 2 claim and the same intent to -- evidently intend to pursue the same relief.

John G. Roberts, Jr.:

Well, you might be right, but, you know, with respect to standing we've held that that is an issue-by-issue inquiry, not a live case broadly conceived.

Aaron Panner:

Well, in Laidlaw the Court said that it was for a particular type of relief that the plaintiff had to establish standing, but that's not at issue here.

The Respondents continue to pursue a section 2 claim and pursue, evidently, the same type of relief based on the same course of conduct.

I'd also like to point out that Respondents, while conceding that the position of the Ninth Circuit was incorrect, have not clearly stated that they would not take advantage of a decision by this Court affirming the Ninth Circuit.

And I think that that's important, because there really would be no reason for these Respondents to say that if for whatever reason the Court decided that the Ninth Circuit was right, that they would not go ahead and take advantage of that--

Ruth Bader Ginsburg:

I thought they asked to have the Ninth Circuit decision vacated.

They didn't ask us to affirm it.

They said: Vacate that decision; it is wrong.

Aaron Panner:

--That is right, Justice Ginsburg, but the point is that if this Court were to disagree -- if the -- for example, it's well established that the Solicitor General's confession of error, for example, or a State attorney general's confession of error does not bind this Court.

Indeed, a party's position with respect to the proper disposition of a case never binds the Court.

So the Court certainly has the power to say, now that the case is properly before it: We think that the Ninth Circuit got it right.

Obviously, we don't think that that's what we think the Court should say; but, given that circumstance, if the Court, for whatever reason, were to affirm the Ninth Circuit, there would be nothing that would bar the Respondents from taking advantage of that.

Even though they have said that that's a legal error, if that were the established law, there would be no reason for them not to pursue it.

And I think that that's relevant, again, to the question whether the parties remain adverse for Article III purposes.

As a jurisdictional issue, the adversity of the parties with respect even to the section 2 claim, even if they intended to pursue a different legal theory, is sufficient.

But the point I am making is simply to illustrate that adversity even with respect to the narrow legal issue remains, even though they are not contesting the proper -- the proper disposition of that legal issue.


Ruth Bader Ginsburg:

When this comes up, we usually, if a -- if a party abandons a position in support of the decision, the court of appeals decision, we have appointed -- as you noted in your brief, we have appointed a friend of the court to represent the position of the circuit.