On June 18, 2007, the Eighth Circuit of the United States Court of Appeals overturned a preliminary antisuit injunction enjoining Tokyo Kikai Seisakusho, Ltd. ("TKS") from filing under the Japanese Special Measures Law. Constantine Cannon partner Doug Rosenthal assisted the Japanese government's amicus brief in support of TKS.

In December, 2003, a district court found TKS to be in violation of the Antidumping Act of 1916. This Act was declared in violation of international trade law by the Appellate Body of the WTO. In consequence, the United States Government repealed the 1916 Act, but only prospectively. Thus, notwithstanding the rejection of the applicable U.S. Statute that was the basis for a finding of liability, the repeal did not affect the district court's judgment. Disappointed, the Japanese government enacted the Special Measures Law, a clawback statute authorizing Japanese corporations to sue in Japanese courts for recovery of the full amount of any judgment awarded in any jurisdiction under the 1916 Act. TKS waited to exhaust all appeals for the 2003 judgment until it notified Goss International ("Goss") of its intent to file suit under the Special Measures Law. Goss filed a motion for preliminary antisuit injunction, which was granted by the district court.

In reversing the district court, the Eighth Circuit noted that since the antidumping litigation concluded, the request for injunctive relief was not for the prevention of interdictory jurisdiction by Japanese courts. The court also noted that in cases involving parallel litigation in foreign countries, once one court reaches a final judgment, the role of comity for antisuit injunction purposes essentially is moot because there is no longer tension with the foreign country over concurrent jurisdiction. Goss is likely to pursue further litigation.

Constantine Cannon announces that partner Seth Greenstein and associate Mitch Stoltz won a summary judgment for Static Control Components, against claims of copyright infringement filed by Lexmark International.

Lexmark, a computer printer maker, placed a computer chip on its toner cartridges in an effort to block competition from third party cartridge remanufacturers. Our client reverse engineered the chip and made a replacement chip for the remanufacturers. In December 2002, Lexmark sued Static Control for copyright infringement and violation of the Digital Millennium Copyright Act ("DMCA"), claiming that the chips contained a small computer program that Static Control copied, and that Static Control circumvented technologies that prevented access to Lexmark's copyrighted software. In February 2003, after a hearing on the merits, the district court granted Lexmark a preliminary injunction on both claims.

In October 2004, the Sixth Circuit reversed the injunction and found that Lexmark had not proved a likelihood of success on the merits either that its computer programs were copyrightable, or that Static Control's use of the program to make replacement cartridges work with Lexmark printers was not a permissible fair use under copyright law. (The Sixth Circuit also found that Lexmark had no claim under the DMCA as a matter of law, and in light of the opinion Lexmark voluntarily agreed to take summary judgment against those claims.) On April 19, the court granted our motion for summary judgment against Lexmark's copyright claims, finding that the Lexmark software programs lacked originality and therefore were not protected by copyright; and that Static Control used the Lexmark program code to make its chips work with the Lexmark printers, which was a fair use.

Transport Express, Inc. and the Intermodal Carriers Conference, American Trucking Associations v. Sinotrans Container Lines Co.; Ltd., Docket No. 06-10, Federal Maritime Commission

On February 16, 2007, the Federal Maritime Commission gave final approval to a settlement in this case. The Firm represented Transport Express, a trucking firm transporting cargo containers to and from the Ports of Long Beach and Los Angeles, and the trade association representing truckers in the ocean container trade, in an action against an ocean common carrier. The complaint alleged that Sinotrans had violated the Shipping Act of 1984 by terminating Transport Express's container interchange rights in response to Transport Express's correct assertion that Sinotrans had violated provisions of an industry-wide agreement governing the interchange of cargo containers. The settlement required Sinotrans to reinstate Transport Express's interchange rights and pay it damages, as well as to provide partial reimbursement of the complainants' legal fees. Significantly, the settlement prohibited Sinotrans from terminating the interchange rights of any trucking company in response to an assertion of its rights under the container interchange agreement. This is the first time the FMC has entered an order giving truckers an enforcement mechanism under the Shipping Act regarding claims of unlawful conduct by an ocean carrier.

The Sixth Circuit Court of Appeals has affirmed the $35 million judgment that Constantine Cannon won for Seton Company in federal district court in 2005.

Read Opinion in Seton Company v. Lear Corporation

The Firm represents its partner Douglas E. Rosenthal in a lawsuit filed in the Superior Court for the District of Columbia. Mr. Rosenthal alleges that his former law firm, Sonnenschein, Hath & Rosenthal LLP, failed to properly recognize and compensate him for work performed by Mr. Rosenthal in connection with the successful settlement of a lawsuit against the government of Libya brought by some of the family members of those murdered in the bombing of Pan Am Flight 103 over Lockerbie, Scotland in 1988. Similarly, the complaint alleges that Mr. Rosenthal failed to be properly recognized and compensated by Sonnenschein for his role in originating and supervising work performed for his long-standing client, Sun Microsystems, Inc.

Douglas E. Rosenthal Complaint

The Firm represents Funeral Consumer Alliance, Inc. (FCA), a non-profit consumer advocacy group, as well as a nationwide class of casket consumers, in a lawsuit filed in federal court in California. FCA and the casket consumers allege that the three largest funeral home chains in the U.S. -- Service Corporation International, Alderwoods Group, Inc., and Stewart Enterprises, Inc.-- and the dominant manufacturer of caskets, Batesville Casket Company, have boycotted independent casket discounters and fixed the prices of caskets at artificially high levels in violation of state and federal antitrust laws. FCA and casket consumers seek injunctive relief to bar these anti-competitive and anti-consumer practices and seek monetary relief for the overcharges casket consumers have been forced to pay.

May 2, 2005 Press Release
May 2, 2005 Funeral Consumers Alliance Complaint

The Firm was recently retained by Discover, a business unit of Morgan Stanley, to represent it in its lawsuit over damages it sustained as a result of Visa and MasterCard's adoption and enforcement of their exclusionary rules. These rules, which prohibited virtually every major bank in the United States from issuing credit and debit cards over the Discover network, were held to be illegal in United States v. Visa and MasterCard -- a recently concluded case prosecuted by the Antitrust Division of the Department of Justice.

Discover Financial Services Complaint

Mariner's Cove Site B Associates et al v. Travelers Indemnity Company et al, CIV 04-1913 (KMW), United States District Court Southern District of New York

The firm represents the owners and operators of a number of residential buildings in Battery Park City adjacent to the where the World Trade Center stood. As a result of the tragic events of September 11, 2001, these properties sustained losses of tens of millions of dollars in property damage and lost business income. The insurer of the properties, The Travelers Indemnity Company, failed to pay on the vast majority of the claimed losses. The Firm brought an action against The Travelers in the Southern District of New York for breach of the insurance policy and for a declaration of the rights of the insured under the policy.

News America Marketing In-Store, Inc. v. Insignia Systems, Inc. CIV 03-8555, United States District Court Southern District of New York

The Firm provides regular advisory and litigation assistance to News America Marketing Group, a News Corporation company. It currently represents News America in a business tort litigation filed in 2003 against Insignia Systems, Inc. that is pending in the Southern District of New York Among other things, News America has alleged that Insignia has interfered with News America's existing business relationships with eleven retailers throughout the United States, and that it is interfering with an unknown number of retailers and consumer package goods companies with whom News America would be able to do business but for Insignia's conduct. News America is seeking damages and injunctive relief.

Paycom Billing Services, Inc. v. MasterCard International, Inc., CIV 03-6150, United States District Court Eastern District of New York

The Firm represents Paycom, an Internet payment processor, in an antitrust action against MasterCard. In its complaint, Paycom alleges, among other things, that MasterCard has imposed on Internet merchants an anticompetitive chargeback regime under which merchants are liable for any fraud associated with Internet payment transactions. Paycom complains that as a result of MasterCard's chargeback system, consumers of Internet transactions have suffered from more fraud, higher prices and fewer Internet merchants at which to shop. Paycom challenges MasterCard's chargeback system as, among other things, an illegal agreement not to compete among MasterCard and its member banks in violation of Section 1 of the Sherman Act.

Paycom Billing Services complaint

United Magazines Co. v. Murdoch Magazines Distribution, Inc., CIV 00-3367 (PKC), United States District Court Southern District of New York

The Firm represents Murdoch Magazines Distribution, Inc. ("MMDI") (now known as TV Guide Distribution, Inc.), a defendant in a price discrimination action brought by former magazine wholesalers that operated primarly in the midwest. Plaintiffs allege that MMDI and other national distributors of magazines provided more favorable prices, secret discounts and other allowances to competing wholesalers, resulting in plaintiffs' demise. MMDI and the other national distributors counterclaimed against plaintiffs for tens of millions in outstanding accounts receivable when plaintiffs went out of business. After defendants' motions to dismiss were granted and after plaintiffs amended their complaint, the case proceeded to discovery and has now reached the summary judgment stage.

Bartholdi Cable Company, Inc. v. Time Warner Inc., et al., CIV 96-2687, United States District Court Eastern District of New York

The Firm represented Bartholdi Cable Company, formerly known as Liberty Cable Company, Inc., in a monopolization case against Time Warner. Liberty alleged that Time Warner, its affiliates and co-conspirators, stifled competition in the market for the provision of cable television services in the New York City metropolitan area, the most important mass media market in the United States, if not the world. Liberty also alleged that it provided high quality cable television programming services at low cost to subscribers in the New York City metropolitan area, but through a campaign of dirty tricks and other predatory conduct, Time Warner and the Defendants deprived the residents of the New York City metropolitan area of the full benefits of competition offered by Liberty. This case was successfully settled on the eve of the trial.

Click here for news.