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CAAF heard oral argument in 36 cases in the 2017 term, resulting in 34 authored opinions of the court and 2 summary dispositions. The court also issued one per curiam decision without hearing oral argument (dismissing the writ-appeal petition in Gray). Summaries of each case, with links to CAAFlog case pages, are on the October 2017 Term page.
That number of oral arguments is about average for the court over the past decade. It’s a significant decrease from the 42 arguments heard last term, but a significant increase from the 28 arguments heard the term before.
CAAF also had a very moderate summary disposition docket. By my count the court issued summary dispositions in 32 cases – a number that is about average (and includes the two summary dispositions in argued cases: Gonzalez-Gomez and Burris).
Chief Judge Stucky wrote 9.
Judge Maggs joined the court in the middle of the term, allowing him to participate in only 11 of the 34 authored opinions. Senior Judges Effron, Cox, and Erdmann all participated in cases heard this term prior to Judge Maggs joining the court. None authored a lead opinion, but Senior Judge Effron authored a concurring opinion in 1 case (Robinson (AR)) and a dissenting opinion in 1 case (Eppes), and Senior Judge Cox authored a dissenting opinion in 1 case (Jacobsen).
I score the Government divisions as the winner in 21 of the 36 cases heard at oral argument. Those wins, however, include Bailey (where CAAF remanded for a new review of the sentence), Simpson (where CAAF answered the certified question in the negative but found other reasons to affirm the CCA’s decision in part), and Hennis (where CAAF heard oral argument on – and found it lacks authority to grant – a defense motion for resources).
Of the 34 authored opinions of the term, 22 were unanimous (no separate opinions). The Government divisions prevailed in 14 (64%) of those 22 unanimous opinions.
An additional 3 cases involved only separate concurring opinions, for a total of 25 authored opinions with no dissents (74% of the total of 34 authored opinions). The Government divisions prevailed in 16 (64%) of those 25.
Chief Judge Stucky dissented 3 times and wrote 3 dissenting opinions.
Judge Ryan dissented 2 times and wrote 1 dissenting opinion.
Judge Ohlson dissented 3 times and wrote 3 dissenting opinions.
Judge Sparks dissented 1 time but did not write separately.
Senior Judge Effron dissented 1 time and wrote 1 dissenting opinion.
Senior Judge Cox dissented 1 time and wrote 1 dissenting opinion.
6 cases drew just 1 dissenting vote (Jacobsen, Harpole, Robinson (AF), Eppes, Barker, and Hardy), and 3 cases drew 2 dissenting votes (Short, Jerkins, and Barry). The dissenting opinion in Barry, however, is a little unusual. Authored by Judge Ryan and joined by Judge Maggs, the opinion is styled as a dissent but agrees with the majority that the conviction must be reversed. Accordingly, it gets special attention in the remainder of these stats.
Chief Judge Stucky dissented 3 times, siding with the Government division in 2 of the 3.
Judge Ryan dissented 2 times, siding with the defense in both.
Judge Ohlson dissented 3 times, siding with the Government division in 2 of the 3.
Judge Sparks dissented 1 time, siding with the Government division.
Senior Judge Effron dissented 1 time, siding with the Government division.
Senior Judge Cox dissented 1 time, siding with the defense.
Judge Sparks wrote for the court in 6 cases, drawing 1 dissent (and 1 concurring opinion).
Judge Maggs wrote for the court in 3 cases, drawing 1 dissent (and 2 concurring opinions).
Judge Ryan wrote for the court in 7 cases, drawing 2 dissents.
Chief Judge Stucky wrote for the court in 9 cases, drawing 3 dissents.
If there’s an award for the most dissents, Chief Judge Stucky wins it for the second year in a row. But two years ago (in the 2015 Term) then-Judge Stucky dissented the most but was the least likely to draw dissents when he wrote for the court.
Chief Judge Stucky wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 out of 34 cases with authored opinions (91%). Chief Judge Stucky voted for the Government division in 21 (62%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories. 1 of those dissents, however, was in Barker, where Judge Stucky agreed that the Government division should win but he dissented because he would find the issue waived (he also dissented in Harpole, where the defense won).
Judge Ryan wrote a total of 9 opinions this term: 7 opinions of the court, 1 concurring opinion, and 1 dissenting opinion. She was with the majority in 33 (97%) out of 34 cases with authored opinions (including Barry, even though she dissented, because of the relief she would have granted). Judge Ryan voted for the Government division in 22 (65%) of those 34 cases, and dissented in none of the Government divisions’ 21 victories (her only dissent was in Jerkins, where she disagreed with the relief the court granted to the defense).
Judge Ohlson wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 (91%) out of 34 cases with authored opinions. Judge Ohlson voted for the Government division in 20 (59%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories (Hardy and Short) (he also dissented from the defense victory in Jerkins).
Judge Sparks wrote a total of 6 opinions this term: 6 opinions of the court, 0 concurring opinions, and 0 dissenting opinions. He was with the majority in 32 (97%) out of 33 cases with authored opinions (he recused himself from Barry). Judge Sparks voted for the Government division in 20 (61%) of those 33 cases, dissenting in 1 of the Government divisions’ 21 victories (Short).
Judge Maggs participated in only 11 of the 34 cases with authored opinions. He wrote a total of 4 opinions this term: 3 opinions of the court, 1 concurring opinion, and 0 dissenting opinions. He was with the majority in all 11 cases (including Barry, even though he joined Judge Ryan’s dissenting opinion, because of the relief he would have granted). Judge Maggs voted for the Government division in 7 (64%) of those 11 cases, dissenting from none of the Government divisions’ victories in which he participated.
Civilian defense counsel argued 11 of the 36 cases (31%) argued at CAAF this term: (Guardado, Riesbeck, Honea, Mangahas, Jerkins, Condon, Carpenter, Eppes, Kelly, Hardy, and Burris). That includes Mr. Mizer’s argument in Honea, even though Mr. Mizer argued the case in his official capacity as a civilian employee of the Air Force Defense Appellate Division.
Of those 11 arguments by civilian counsel, the defense won in 7 (64%).
In cases argued by military appellate defense counsel, the defense won in 8 out of 25 (32%).
On the Government division side one civilian attorney argued and won one case (Bailey).
1 was a Navy Corps case (Barry).
1 was a Coast Guard case (Harpole).
Coast Guard Appellate Defense: 1 out of 2 (50%).
Army Appellate Defense: 4 out of 12 (33%).
Navy-Marine Corps Appellate Defense: 1 out of 3 (33%).
Air Force Appellate Defense: 2 out of 8 (25%).
CAAF heard oral argument in 3 cases with issues certified by a Judge Advocate General: Jacobsen, Katso, and Simpson. Of those 3 cases, 2 were from the Army and 1 was from the Air Force.
The Government division won two out of the three.
CAAF also issued summary dispositions in two cases with certified issues: Gould (Army) and Hale (Marine Corps). In both cases CAAF rejected the certified issues.
CAAF specified issues for oral argument in 3 cases: Condon, Robinson (AR), and Riesbeck. The specified issues were dispositive in all three cases.
14 (39%) were from the Air Force CCA.
16 (44%) were from the Army CCA.
3 (8%) were from the Coast Guard CCA.
3 (8%) were from the Navy-Marine Corps CCA.
One of those 36 arguments, however, was the motion in Hennis that didn’t involve direct review of a CCA’s decision.
The Air Force CCA was reversed in 5 out of 14 cases (36%).
The Army CCA was reversed in 8 out of 15 cases (53%) (includes a partial reversal in Simpson).
The Coast Guard CCA was reversed in 3 out of 3 cases (100%) (includes partial reversals in Harpole and Bailey).
The Navy-Marine Corps CCA was reversed in 1 out of 3 cases (33%).
5 were from the Air Force CCA (3 Hills trailers and 1 Commisso trailer).
5 were from the Army CCA (3 Hills trailers and 1 Burris trailer).
1 was from the Navy-Marine Corps CCA (Tinsley).
Note: I scored the following summary dispositions as reversing a CCA: Tinsley, Robertson, Rice, Campbell, Frank, Brown, Thompson, Moynihan, Hoffmann, Marcum, and Hughes. Perhaps the list could be longer. One case not on my list is McGinn, where CAAF reversed the Army CCA’s finding of waiver but otherwise affirmed the CCA’s decision. Another case not on my list is Preston, where CAAF reversed an Air Force CCA ruling on a motion for reconsideration filed in connection with a petition for a new trial. I had to draw the line somewhere.
CAAF considered 18 petitions for extraordinary relief during the 2017 term. All were denied in one form or another.
Two of the 18 are particularly noteworthy: Gray and Roberts.
The government agrees with petitioner that, under this Court’s decision in United States v. Denedo, 556 U.S. 904 (2009), the military courts have subject-matter jurisdiction to entertain such requests for coram nobis relief and that the CAAF erred in concluding othe[r]wise.
Br. at 12. SCOTUS denied the petition but the SG’s concession (probably) keeps Denedo alive.
* Although styled as a petition for extraordinary relief in the nature of a writ of error coram nobis, this is a request for a new trial in which the statutory period for filing such claims has expired.
CAAF’s decision affirmed the similar action of the Army CCA (analyzed here).
CAAF begins the 2018 term with 19 cases on its docket. Those include one capital appeal (Hennis) that was docketed last year and in which CAAF’s review is mandatory. It also includes one case remanded by the Supreme Court (Briggs), and two certified cases (Cooper and Perkins).
The court already heard oral argument in two cases in the 2018 term: Eugene and Criswell. The arguments were heard before the official start of the term as part of CAAF’s Project Outreach.
Other notable cases include CAAF’s grant of review (with no briefing ordered) in a Navy case (Greening) that involves successive prosecutions and the separate sovereigns doctrine. The Supreme Court is reconsidering the doctrine in Gamble v. United States, No. 17-646 (link to docket page). The doctrine is also at issue in Hennis.
CAAF also granted review in another Navy case (Forbes) where the appellant pleaded guilty to sexual assault by causing bodily harm for failing to inform his sexual partners of his HIV-positive status. That case might cause CAAF to reconsider its ultimate holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015).
And the long running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq, will be reviewed by CAAF for a third time.
Also returning to CAAF is Tucker, which questions whether negligence is a sufficient mens rea for a violation of Article 134.
CAAF heard oral argument in 6 cases with issues certified by one of the Judge Advocates General (Muwwakkil, Quick, Katso, Piolunek, Morita, and Buford). The court resolved another 3 certified cases by summary disposition (Huey, Soto, and Bowser). In total the court acted in 9 cases with certified issues this term.
Of those 9 cases, 7 (78%) were from the Air Force. That’s a slight decrease from last term’s 82%, but still gives me reason to recall my post about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two certified cases this term were from the Army (Muwwakkil) and the Marines (Quick).
The Government won in 4 of the 9 certifications (44%): Katso, Piolunek, Buford, and Huey (resolved summarily as a Piolunek trailer that mooted the certified issue). Notably, Piolunek involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision. The certified issue in Piolunek was also summarily rejected by CAAF as presenting a question of fact that the court lacks jurisdiction to consider.
The court specified issues for oral argument in two cases (Gilbreath and Arness), a Marine Corps case and an Air Force case. The specified issues were dispositive in both cases.
13 were from the Air Force CCA.
15 were from the Army CCA.
8 were from the Navy-Marine Corps CCA.
The Air Force CCA was reversed in 8 out of 13 cases (62%).
The Army CCA was reversed in 6 out of 16 cases (38%).
The Navy-Marine Corps CCA was reversed in 4 out of 8 cases (50%).
Civilian defense counsel argued 6 of the 37 cases (16%) argued at CAAF this term: Gutierrez, Morita, Newton, Piolunek, Plant, and Sullivan. Of these, the Government won in 3 (50%).
In cases argued by military defense counsel, the Government won in 17 out of 31 (55%).
2 were Air Force cases (Jones and Morita Nettles).
7 were Army cases (Adams, Bennitt, Blouin, Keefauver, Muwwakkil, Peters, and Stellato).
3 were Marine Corps cases (Gilbreath, Quick, and Vargas).
2 were Navy cases (Simmermacher and Woods).
Air Force Appellate Defense: 2 out of 9 (22%).
Army Appellate Defense: 7 out of 14 (50%).
Navy-Marine Corps Appellate Defense: 5 out of 8 (63%).
Coast Guard Appellate Defense: N/A (only Coast Guard case argued by a civilian).
Chief Judge Baker wrote a total of 16 opinions this term: 8 opinions of the court, 3 concurring opinions, and 5 dissenting opinions. He was with the majority in 30 out of 37 cases (81%). He voted for the Government in 23 out of 37 cases (62%), dissenting from 2 of the Government’s 20 victories and concurring in 2 of them.
Judge Stucky wrote a total of 16 opinions this term: 7 opinions of the court, 5 concurring opinions, and 4 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 19 out of 37 cases (51%), dissenting from 3 of the Government’s 20 victories and concurring in 2 of them.
Judge Erdmann wrote a total of 11 opinions this term: 7 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 15 out of 37 cases (41%), dissenting from 5 of the Government’s 20 victories and concurring in 2 of them.
Judge Ryan wrote a total of 10 opinions this term: 7 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. She was with the majority in 33 out of 37 cases (89%). She voted for the Government in 24 out of 37 cases (65%), dissenting from none of the Government’s 20 victories and concurring in 1 of them.
Judge Ohlson wrote a total of 10 opinions: 8 opinions of the court and 2 dissenting opinions. He was in the majority in 33 out of 36 cases (92%). He voted for the Government in 18 out of 36 cases (50%), dissenting from 2 of the Government’s 20 victories. Of note, he recused himself from one case (that the Government won).
Senior Judge Cox participated in 1 case this term, siding with the Government in CAAF’s unanimous decision in Newton.
Of the 37 authored opinions of the term, 14 were unanimous (no separate opinions). The Government prevailed in 7 of these 14. An additional 9 cases involved only separate concurring opinions, for a total of 23 cases with no dissents (62% of the total of 37 cases). Of these 23 cases with no dissents, the Government prevailed in 13 (57%).
Chief Judge Baker dissented 7 times and wrote 5 dissenting opinions.
Judge Erdmann dissented 5 times and wrote 2 dissenting opinions.
Judge Stucky dissented 5 times and wrote 4 dissenting opinions.
Judge Ryan dissented 4 times and wrote 2 dissenting opinion.
Judge Ohlson dissented 3 times and wrote 2 dissenting opinions.
Chief Judge Baker sided with the Government in 5 out of 7 dissents (71%).
Judge Stucky sided with the Government in 4 out of 5 dissents (80%).
Judge Ryan sided with the Government in 4 out of 4 dissents (100%).
Judge Ohlson sided with the Government in 2 out of 3 dissents (67%).
* Corrected. I originally wrote this backwards; that Judge Erdmann sided with the Government in all of his dissents.
Senior Judge Cox participated in one case (Newton), which was decided in a unanimous decision.
Of the 14 cases with dissents, only 4 cases involved lone dissenters. Of these 4 cases, Chief Judge Baker was the lone dissenter in 2 (Vargas and Bannitt), siding with the Government in both. Judge Erdmann was the lone dissenter in 1 (Sullivan), siding with the Defense. Judge Ohlson was the lone dissenter in 1 (Katso), siding with the Defense.
Chief Judge Baker wrote for the court in 8 cases, of which only 1 (13%) had dissenters. That was Judges Stucky and Ryan (both writing separately) in Peters.
Judge Stucky wrote for the court in 7 cases, of which 1 (14%) had dissenters. Judge Ohlson dissented in McFadden, joined by Chief Judge Baker.
Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in one case (Bennitt) and Judge Ohlson dissented in the other (Katso).
Judge Erdmann wrote for the court in 7 cases, of which 4 (57%) had dissenters. Judge Stucky joined by Judge Ohlson dissented in 1 case (Quick), and Chief Judge Baker dissented in the other 3 cases (Blouin, Adams, and Vargas) joined by Judge Ryan in 2 (Blouin and Adams).
Judge Ohlson wrote for the court in 8 cases, of which 6 (75%) had dissenters. Judge Erdmann dissented in 5 cases (Akbar, Buford, Schloff, Torres, and Sullivan), Judge Stucky dissented in 3 cases (Buford, Schloff, and Torres), Chief Judge Baker dissented in 2 cases (Akbar and Plant), and Judge Ryan dissented in 1 case (Plant).
Interestingly, just like last year, while Chief Judge Baker dissented more than any other judge (7 in total – authoring separate opinions in 5), he was least likely to draw dissents when he wrote for the court.
CAAF heard oral argument in 37 cases this term and issued 37 authored opinions of the court. Summaries of each case, with links to CAAFlog case pages, are available on the September 2014 Term page.
The court also issued summary dispositions in 46 cases, including 6 cases involving the appointment of Mr. Lawrence Soybel to the Air Force CCA (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)), and 7 cases involving the brief revival of the ultimate offense doctrine at the Army CCA (see United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan. 6, 2015) (CAAFlog case page)).
Chief Judge Baker wrote 8.
Notably, Chief Judge Baker’s appointment to CAAF expired on July 31 and Judge Erdmann is now the Chief Judge of CAAF. However, for these stats, I will identify them as Chief Judge Baker and Judge Erdmann.
Readers may recall that in the 2013 term CAAF did not hear oral argument or issue an authored opinion in any Navy cases.
The court had a less active extraordinary writ docket in the 2014 term than in the 2013 term (when it considered 23 petitions). In the 2014 term the court considered 19 petitions (12 writ-appeals, 4 habeas petitions, 1 petition for mandamus, 1 petition for relief pendente lite, and 1 petition filed under the All Writs Act and dismissed for lack of jurisdiction). It denied all of them.
Calling winners and losers can be tough, but I’m calling 20 (54%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Phillips, Piren, Castillo, Newton, McFadden, Buford, Piolunek, Olson, Norman, Torres, Castillo, Carter, Ward, Katso, McIntosh, Murphy, Schloff, Arness, Akbar, and Sullivan.
CAAF oral argument schedule for the September 2014 term originally included one more oral argument day, on June 9, 2015. However, Chief Judge Baker made a comment at the end of Tuesday’s oral arguments that implied that the court would not hear any more cases this term, and the court’s website no longer shows a June 9 date.
CAAF heard oral argument in 4 cases with issues certified by one of the Judge Advocates General under the authority granted in Article 67(a)(2) (Finch, Hines, McPherson, and Wilson). But that only tells part of the story, as the court resolved another 7 certified cases by summary disposition (Arriaga, Burns, Lindgren, McDowell, McIntyre, Seton, and Sickels). In total the court decided 11 cases with certified issues this term.
Of those 11 cases, 9 (82%) were from the Air Force. That’s in part due to the Air Force certification binge earlier this spring that prompted me to write about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two cases were from the Army.
The Government won in only 2 out of the 11 certifications (18%): Hines (an Army case where the court unanimously sided with the Government) and Finch (an Air Force case where the court was sharply divided). Both of those cases were heard at oral argument. Notably, Finch involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision.
The court specified issues for oral argument in two cases (Moon and Moss), both from the Army. The specified issues were dispositive in both cases.
15 were from the Air Force CCA.
14 were from the Army CCA.
The Air Force CCA was reversed in 6 out of 15 cases (40%).
The Army CCA was reversed in 6 out of 14 cases (43%).
Civilian counsel argued only 4 out of the 32 cases (12.5%) argued at CAAF this term (down from 6 out of 36 last year – 17%): Leahr, MacDonald, Merritt, and Winckelmann. Of these, the Government won in 2 (50%).
In cases argued by military defense counsel, the Government won 17 out of 28 (61%).
7 were Air Force cases (Elespuru, Janssen, Knapp, McPherson, Paul, Wicks, and Wilson).
4 were Army cases (Davenport, Flesher, Moon, and Warner).
Air Force Appellate Defense: 7 out of 15 (47%).
Army Appellate Defense: 4 out of 14 (29%).
Coast Guard Appellate Defense: 0 out of 1 (0%).
Navy-Marine Corps Appellate Defense: 0 out of 2 (0%).
Last year’s numbers are here.
Unlike the voting blocs post of years past, this year I’m going to consider each judge individually.
Chief Judge Baker wrote a total of 20 opinions this term: 7 opinions of the court, 4 concurring opinions, and 9 dissenting opinions. He was in the majority in 22 out of 32 cases (69%), concurring in 4 cases. He voted for the Government in 23 out of 32 cases (72%), dissenting from 3 of the Government’s 19 (16%) victories and concurring in 2 of them.
Judge Erdmann wrote a total of 5 opinions this term, all of them opinions of the court. He was in the majority in 30 out of 32 cases (94%), joining the opinion of the court in all of them. He voted for the Government in 17 out of 32 cases (53%), dissenting from 2 of the Government’s 19 victories (10.5%) (his only 2 dissents).
Judge Stucky wrote a total of 14 opinions this term: 9 opinions of the court, 3 concurring opinions, and 2 dissenting opinions. He was in the majority in 30 out of 32 cases (94%), concurring in 3 of them. He voted for the Government in 17 out of 32 cases (53%), dissenting from 2 of the Government’s 19 victories (10.5%) (his only 2 dissents) and concurring in 2 of them.
Judge Ryan wrote a total of 11 opinions this term: 7 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. She was in the majority in 28 out of 32 cases (87.5%), concurring in 1 of them. She voted for the Government in 19 out of 32 cases (59%), dissenting from 2 of the Government’s 19 victories (10.5%) and concurring in 1 of them.
Judge Ohlson joined the court a few months into the term, and he participated in only 23 of the court’s 32 cases with authored opinions. Judge Ohlson wrote a total of 7 opinions: 4 opinions of the court and 3 dissenting opinions. He was in the majority in 20 out of 23 cases (87%), concurring in one of them. He voted for the Government in 12 out of 23 cases (52%). But Judge Ohlson participated in only 13 of the Government’s 19 victories, dissenting from 2 (15% of the 13) and concurring in 1.
Senior Judge Effron participated in 8 of the court’s 32 cases with authored opinions this term (25%). He wrote 1 dissenting opinion. He was in the majority in 6 out of 8 cases (75%), concurring in none. He voted for the Government in 4 out of 8 cases (50%), and dissented from 2 Government victories.
Senior Judge Cox participated in 1 case this term, voting for the Defense and joining Chief Judge Baker’s opinion of the court in Wicks.
Of the 32 authored opinions of the term, 12 were unanimous (no separate opinions). The Government prevailed in 9 of these 12. An additional 6 cases involved only separate concurring opinions, for a total of 18 cases with no dissents (56% of the total of 32 cases). Of these 18 cases, the Government prevailed in 12 (66%).
Chief Judge Baker dissented 10 times and wrote 9 dissenting opinions.
Judge Ryan dissented 4 times and wrote 3 dissenting opinions.
Judge Ohlson dissented 3 times and wrote dissenting opinions in all 3 cases.
Judge Stucky dissented 2 times and wrote dissenting opinions in both cases.
Senior Judge Effron dissented 2 times and wrote a dissenting opinion in 1 case.
Judge Erdmann dissented 2 times but wrote dissenting separate opinions.
Chief Judge Baker sided with the Government in 7 out of 10 dissents (70%).
Judge Ryan sided with the Government in 2 out of 4 dissents (50%).
Judge Ohlson sided with the Government in 1 out of 3 dissents (33%).
Judge Stucky sided with the Government in neither of his 2 dissents (0%).
Senior Judge Effron sided with the Government in neither of his 2 dissents (0%).
Judge Erdmann sided with the Government in neither of his 2 dissents (0%).
These numbers count the dissents by Judges Stucky and Ryan in Treat as siding with the Defense.
Of the 14 cases with dissents, only 5 cases involved lone dissenters. Of these 5 cases, Chief Judge Baker was the lone dissenter in 4 (Warner, Wilson, McPherson, and Davenport), siding with the Government in each case. Judge Ohlson was the lone dissenter in 1 (Frey), siding with the Defense. No other judge was a lone dissenter.
Chief Judge Baker wrote for the court in 7 cases, of which only 1 (14%) had a dissenter. That was Judge Ohlson in Frey.
Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in both of these cases and wrote separately in both. Judge Ohlson dissentedt in 1, joining the Chief Judge’s opinion.
Judge Erdmann wrote for the court in 5 cases, of which 2 (40%) had dissenters. Senior Judge Effron dissented in both cases, writing 1 separate opinion. Chief Judge Baker dissented in 1 case and wrote a separate opinion. Judge Ryan also dissented in 1 case and wrote separately.
Judge Ohlson wrote for the court in 4 cases, of which 2 (50%) had dissenters. Judge Ryan dissented in both cases, writing separately in both. Chief Judge Baker and Judge Stucky each dissented in 1 case, and each wrote a separate opinion.
Judge Stucky wrote for the court in 9 cases, of which 7 (78%) had dissenters. Chief Judge Baker dissented in all 7, writing a separate opinion in 6. Judge Ohlson dissented in 2, writing separate opinions in both. Judges Erdmann and Ryan each dissented in 1, but neither wrote separately.
Looking at last year’s dissent stats, I note that last year Chief Judge Baker was tied with Judge Stucky for most number of dissents (7 each) and Chief Judge Baker was the most likely to draw dissents when he wrote for the court (5 out of 8 – 62.5%). But this year, while Chief Judge Baker dissented more than any other judge (10 in total – authoring separate opinions in 9), he was least likely to draw dissents when he wrote for the court.
CAAF heard oral argument in 32 cases this term and issued 32 authored opinions of the court.
The court also issued summary dispositions in 67 cases, including 11 cases involving the comments of Marine Corps military judge Lieutenant Colonel Palmer (discussed here) and 16 cases involving the appointment of Mr. Lawrence Soybel to the Air Force Court of Criminal Appeals (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)).
Chief Judge Baker wrote 7.
Judge Ohlson joined the court mid-term (discussed here), and Senior Judges Effron and Cox both participated in cases argued before Judge Ohlson’s confirmation. Senior Judge Effron participated in 8 cases and Senior Judge Cox participated in 1 case. Neither Senior Judge authored a majority opinion, however Senior Judge Effron did author a dissenting opinion (in Finch).
CAAF did issue summary dispositions in 3 Navy cases, deciding all 3 in favor of the Government. Of these 3 summary dispositions, 2 involved administrative issues (correcting the promulgating order in one case (York) and sealing an exhibit in the other (Mora)), and the third (Short) involved a question of the completeness of the record.
The court had a fairly active extraordinary writ docket, with 23 petitions (19 writ-appeals, 2 habeas petitions, and 2 petitions for mandamus). CAAF denied all of these petitions except for one: United States v. Arness, No. No. 14-8014/AF (an Air Force case in which it ordered that briefs be filed (discussed here)).
Calling winners and losers can be tough, but I’m calling 19 (59%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Cimball Sharpton, Danylo, Davis, Finch, Frey, Gutierrez, Hines, Hornback, Jones, Kearns, Leahr, Lee, Mead, Moss, Passut, Payne, Talkington, Treat, and Winckelmann.
Note: These calculations include Judges Ryan and Stucky as siding with the Defense in Treat (CAAFlog case page), and Chief Judge Baker and Senior Judge Effron as siding with the Defense in Moss (CAAFlog case page). That said, Treat could be read as a unanimous win for the Government (as all five judges would have affirmed the conviction), and Moss could be read as a loss for both sides (as even the dissenters didn’t indicate how they would have decided the granted issues).
Compared to last year’s overview, the Government won a greater percentage of cases decided in authored opinions this year (59%) than last year (50%) (last year’s number excludes the 3 ex writ cases). If keeping a case away from CAAF is considered a win for the Government (a fair characterization I think), then the Navy had a perfect record and retained its position as the service that won the most (last year the Navy won 4 out of 5 cases – 80%). In contrast, the Air Force went from the second greatest percentage of wins last year (5 out of 8 – 62.5%) to the service that won the least this year (7 out of 15 – 47%).
CAAF has heard oral argument in 21 cases so far this term (23 if we include Davis and Paul, both argued on March 4) and issued 10 authored opinions (in chronological order): Mead, Merritt, Warner, Winckelmann, Payne, Passut, Knapp, Moss, Wicks, and Hines.
Of these 10, the court’s decision was with the Government in 5, against the Government in 4, and against both in 1 (Moss, where the court dismissed the appeal over the argument of both parties). Only 1 was a certified case (Hines), resulting in a unanimous win for the Government. 3 of the 10 decisions drew dissents (Warner, Knapp, and Moss), all authored by Chief Judge Baker. He was alone in Warner, joined by Senior Judge Effron in Moss, and joined by Judge Ryan in Knapp. But an equal 3 cases were decided unanimously (meaning without any separate opinion).
Speaking of Senior Judge Effron, he participated in 7 of the authored decisions (Mead, Merritt, Warner, Winckelmann, Payne, Passut, and Moss) as well as the oral argument in Finch (decision still pending), while Senior Judge Cox participated in just 1 case (Wicks), before Judge Ohlson’s confirmation in October.
CAAF also issued 36 summary dispositions so far this term, of which 11 involved the comments of a Marine Corps military judge and 15 involved the appointment of Mr. Soybel to the AFCCA (see Janssen). Of the other 10 summary dispositions, 3 were in certified cases (Arriaga and Lindgren from the Air Force, and Sickels from the Army) and all 3 were decided against the Government. Chief Judge Baker dissented from 2 of those decisions (Arriaga and Lindgren) and also from the granted case of McKim-Burwell.
Finally, I’m tracking 34 active cases on the court’s master docket. This number includes 8 Janssen trailers, 2 other apparent trailers (no briefs ordered in Moon and Winn), and the mandatory review of the capital sentence in Akbar (to be argued next term). Of the remaining 23 cases, 13 have already been argued, and 10 remain to be argued. There are 6 scheduled oral argument days remaining in the term (including a project outreach argument on April 9).


A state cannot burden the right of access to this Court, nor does the power of the state extend to regulating proceedings in this Court.
A state court has not, nor can a statute of the state give it, the power to assess as against one party to a suit in this Court a sum for attorneys' fees for services rendered in this Court as against another party to the suit when such assessment is not authorized by the law of the United States or by the rules of this Court.
A writ of error from this Court to review the judgment of a state court and the supersedeas authorized by the Judiciary Act are federal, and not state, acts.
A state court, when so authorized by the laws of the state, has the power to award actual damages for business losses which are suffered by reason of the acts sought to be controlled or enjoined in the suit after the allowance by this Court of a writ of error and supersedeas, including reasonable attorneys' fees in the proceedings in the state court. Quaere whether the state court can award punitive damages.
The existence of the right to sue on a supersedeas bond does not imply an exclusion of the right to sue under an existing general and applicable law for proper and reasonable damages.
A classification which is based on the distinction between that which is ordinary and that which is extraordinary is reasonable and not repugnant to the equal protection provision of the Fourteenth Amendment which only restrains acts regulating judicial procedure so transcending the limits of classification as to cause them to conflict with the fundamental conceptions of just and equal legislation.
A state statute imposing reasonable attorneys' fees in actual mandamus proceedings against the party refusing to obey a peremptory writ is not repugnant to the equal protection clause of the Fourteenth Amendment either because it does not apply to other proceedings or because it is not reciprocal. The classification is not unreasonable, and so held as to the statute to that effect of Kansas involved in this case and as herein applied.
"The court has authority to render judgment in favor of the plaintiff for any damage it has sustained. Gen.Stat. 1901, § 5193. The plaintiff is given ten days in which to file a claim for damages, stating separately the character and amount of each item. The defendant is given ten days after notice of the filing of the claim in which to except to any items which it may deem not recoverable. The court will then pass upon the exceptions if any be taken, and make orders respecting a hearing."
legal services "if this case is taken to the Supreme Court of the United States whatever such services may be worth." A few days after this claim was filed, on December 24, 1906, a writ of error was issued from this Court to the judgment in mandamus, and a bond to operate as a supersedeas was approved. About two years thereafter, on January 11, 1909, the case was decided in this Court and the judgment below was affirmed. 211 U. S. 211 U.S. 612.
After the mandate went down, leave was given to file an amended claim for damages, and on the same day a Commissioner was appointed to hear the testimony concerning it and report. The amended claim was filed. It was divided into three general classes: first, damages asserted to have arisen from loss of business, etc.; second, damages claimed as the result of the expenses and outlay for the suit; third, cost incurred or anticipated, occasioned by the hearing of the claim. The first, that is, the business losses, was embraced in separate items substantially following the order of the original claim; that is, it was based on alleged loss of output, increased cost of operation, etc., etc. The amounts of many of these items were larger, as they covered the time from the discontinuance of the service up to the filing of the amended claim. The aggregate of the claim was $18,921.90, as compared with $4,907.39, made at the time of the first claim. The second, the expenses of the suit, was greatly changed. Leaving out two insignificant items, as amended the claim was in substance follows.
"For the reasonable value of the services of Waters & Waters to bring this action and to attend to the same in the supreme court of the State of Kansas, the sum of $2,500.00. "
"Tenth. For the reasonable value of the services of Waters & Waters in this case in the Supreme Court of the United states, the sum of $40,000.00."
"Eleventh. For cash paid out for printed briefs in the state and United States Supreme Court, the sum of $93.50."
"Twelfth. For the reasonable value of the professional services of John F. Switzer, attorney at law, employed to assist Waters & Waters in the Supreme Court of the United states, the plaintiff, in the best judgment of the partners composing said firm, deeming it necessary, after considering the momentous and far-reaching controversy made, urged, and argued in the Supreme Court of the United States, and which controversy it could not avoid, the sum of $3,000.00."
"Thirteenth. For the reasonable value of the professional services of the firm of Rossington & Smith, attorneys at law, also employed to present the case of the plaintiff in the Supreme Court of the United states, the plaintiff, in the best judgment of the partners composing said firm, deeming it necessary, after considering the momentous and far-reaching controversy made, urged, and contended for in the Supreme Court of the United States, and which controversy it could not avoid, the sum of $30,000.00."
"Fourteenth. For the railroad fare, hotel bills, and reasonable expenses of W. H. Rossington and J. G. Waters in attending on the United States Supreme Court in April, 1908, the sum of $250 each, and making a total of $500.00. "
"Fifteenth. For the railroad fare, hotel bills, and reasonable expenses of Charles Blood Smith and J. G. Waters in attending on the Supreme Court in October, 1908, the sum of $480.60."
"Sixteenth. For the costs due the plaintiff in the Supreme Court of the United states, the sum of $148.25."
The 17th, 18th, and 19th items embraced small items of traveling and other expenses of the parties and some of their attorneys. In the items of court expenses the difference between the original claim was substantially this, that the claim had grown from about $2,800 for attorneys' fees in the state court when the original claim in damages was filed to a sum in excess of $75,000, all of which increase resulted from charges made for professional services rendered in this Court in connection with the trial of the case. The remaining items of the third class related to expenses incurred under the reference to the Commissioner before whom the case was pending, with a reservation of the right to make future charges for such purpose when the reference was completed.
is deprived of all jurisdiction to consider or determine any such question or element of damage in a proceeding of this kind, and because, further, the Supreme Court of the United States, in affirming the judgment of this court . . . allowed to said plaintiffs, on account of attorneys' fees, the sum of $20.00, and assessed the same against the said defendant. . . ."
"I find that no agreement has ever been had between the mill company and any of the attorneys as to the amount of their compensation; that neither of the attorneys has at any time entered on his books a charge against the mill company for services rendered. nor have they informed the mill company of the amount intended to be charged, nor have they determined in their own minds any definite amount intended to be charged."
"I find that the attorneys will claim the full amount, and will accept whatever amount that shall be determined by this court in this proceeding to be a reasonable compensation for their services in the case and allowed as part of the damages."
"I further find that it is mutually understood between the mill company and the attorneys named, that whatever amount is recovered in this proceeding on account of fees and expenses of counsel will be paid by the mill company to and accepted by the attorneys as a full discharge of the liability to them."
Both parties excepted to the report of the Commissioner on various grounds, and after a hearing the supreme court sustained his action and affirmed his report. 85 Kan. 214.
question here for decision. But first we notice a motion to dismiss for want of jurisdiction. It is difficult to grasp the ground upon which it rests. In one aspect, it would seem to assert that there is no jurisdiction because the federal rights which were passed upon below were correctly decided. But this obviously goes to the merits. In the only other possible aspect, it would seem that the motion proceeds upon the theory that the federal rights which were decided below were so obviously rightly decided that the contention of error concerning them is too frivolous to sustain jurisdiction -- a view which is supported by a statement in the argument for the motion that, of course, there would be jurisdiction if it appeared that the judgment below "under the color and sanctity of the law inflicted exceptional and unjust exactions." But, taking the most favorable view for the motion and assuming that it proceeds upon the only ground upon which it can possibly be said to rest -- that is, the frivolousness of the errors relied upon, we pass from its consideration, since upon such hypothesis we think, on the face of the record, the contention is so clearly unsound as to require no further notice.
denial of any power whatever in the court below to deal with the subject, while the other two contentions at best, challenge power but relatively or partially.
First. The question of the power of the court to make the allowance for professional services rendered in this Court on the former writ of error.
Court of the United States."
"Upon this objection I conclude:"
"1. That the jurisdiction of this court in mandamus is the creation of the Constitution and the statutes of the State of Kansas."
"2. That this court is the sole judge of what that Constitution and those statutes provide."
"3. That the jurisdiction of this court in mandamus over persons within its jurisdiction cannot be affected by act of Congress."
"4. That the Judiciary Act does not and was not intended to affect the jurisdiction of this court."
"5. That the jurisdiction of this court in mandamus attaches upon the issuance of the alternative writ, and the subject matter of the proceeding being the awarding a peremptory mandamus, that jurisdiction continues unabated not only until the writ is awarded, but also until the writ is issued and obedience to it enforced."
"6. That the alternative writ is a command of the performance of specified and prescribed duties, and return to the writ is a refusal to perform the duties prescribed; the judgment awarding a peremptory mandamus is a conclusive adjudication that such refusal was wrongful, and the act of the court compelling compliance with the command of the alternative writ."
and the expenses reasonably and necessarily incurred in compelling compliance with the command of the alternative writ."
"8. That the allowance of the writ of error did not operate to remove the suit from the supreme court of the state into the Supreme Court of the United States; its only effect was to bring up the record for purposes of review."
"9. The allowance of the writ of error did not operate as a supersedeas; the taking the supersedeas bond brought about the supersedeas. The taking the bond, and the supersedeas itself, insofar as it can be conceived of as a substantial act, was the action of the Supreme Court of Kansas."
We observe in passing, that the views concerning the Judiciary Act and the effect of the writ of error from this Court and the relevant statutes of the United States which were expounded in this passage are not required to be reviewed, because they are not necessarily involved in the decision below, since that decision did not rest upon them, but was based upon the operative effect of the state statute, and hence the views expressed as to the United States statutes in the passage quoted must have been adopted simply because they were considered to be illustrative of the principle by which the state statute was made to control. We therefore without in the slightest degree admitting their correctness even for argument's sake, pass the conclusions as to the statutes of the United States, expressed in the passages of the report, and shall not recur to them except insofar as, under the principle of noscitur a sociis, we may find it convenient to do so as illustrating the fundamental and destructive error embodied in the conclusion of the court as to the operative power of the state statute.
Supreme Court of the United States a sum for attorneys' fees for services rendered in that court as against another party to the suit, although such assessment, as we have seen, was not authorized by the law of the United States, but was in conflict with the settled rule in the Supreme Court of the United States? It seems superfluous to put the question, since its very statement conveys of necessity a negative answer. For how, on the face of the question, consistently with the most elementary principles of our constitutional system of government, can it be possibly assumed that a state statute could be made operative in the Supreme Court of the United States to the disregard of its settled rule of procedure and of the principles which had guided its conduct from the beginning, directly sustained by express rule adopted under the sanction of Congress?
a writ of error in this Court. By this method, it makes the suit expensive. . . . It was just this situation that the Legislature of Kansas intended to correct. . . ."
And the far-reaching operation of the principle by which the state statute could alone have been made to produce the result attributed to it by the court below is illustrated by the legal conclusions of the operation and effect of the statutes of the United States stated in the report of the Commissioner, which was adopted by the court as expressed in the passage which we have previously quoted. This is the case, since the views thus sanctioned are necessarily illustrative of the mental atmosphere by which alone it could have been possible to conceive that the state power extended to regulate the proceedings in the Supreme Court of the United States to the disregard of the express provisions of the act of Congress. A view which is not an overstatement when it is observed that, among other things, the conclusion which was below sustained was that the writ of error from this Court and the supersedeas authorized by the act of Congress were not federal, but purely state, acts. And moreover, it was concluded that the exertion by the Supreme Court of the United States under the Constitution and laws of the United States of the power to bring up a case from the state court in order to review it and to grant a supersedeas in order to make that right effective, operated to leave the state court in possession of the case and only to move the record, hence creating a residuum of state power which, as to such case, gave authority to the state court to regulate, certainly as to attorneys' fees, the proceedings in the Supreme Court of the United States.
232 U. S. 318, a statute of the State of Oklahoma which burdened or impeded the right of free access to the courts of the United States was held to be repugnant to the Constitution, and the destructive effect of such legislation upon our institutions was pointed out. And light on the subject is afforded by a consideration of the ruling in Tullock v. Mulvane, 184 U. S. 497. See also Home Ins. Co. v. Morse, 20 Wall. 445, 87 U. S. 453; Clark v. Bever, 139 U. S. 96, 139 U. S. 102-103.
Second. The power of the court below to award damages for the business losses which were suffered after the allowance of the writ of error and the supersedeas.
The contention is that the power did not exist, since the effect of the writ of error and the supersedeas was to remove the case to this Court, and therefore deprive the court below of the right to consider any act causing damage done after the prosecution of the writ of error and the supersedeas. But, conceding in the fullest degree the asserted effect of the supersedeas, that effect ceased with the affirmance of the judgment by this Court, and therefore necessarily opened the way for the court below to consider and determine how far the alleged illegal conduct of the railway company had entailed damages and consequent responsibility. Conceding further that the bond for supersedeas embraced such acts and the resulting damages therefrom, and therefore there was a right to sue on the bond, again the deduction is a non sequitur, because the right to resort to the bond did not imply an exclusion of the right to sue under the general law to recover damages if the election was made to follow that course. Of course, as there is nothing in this case even suggesting that the award of damages for acts done pending the writ of error in this Court was so excessive as to justify the extreme inference that punishment for invoking the right to resort to this Court was inflicted, we need not consider the rule which would be applicable in such a contingency.
Third. The power of the court below to award damages for attorneys' fees for services rendered in the state court.
and the right, on the other hand, to bring into play judgment and discretion as prerequisites to the performance of an act of a different character, and the distinction which justifies the classification made by the statute also answers the argument that the equal protection clause of the Fourteenth Amendment is violated because the allowance of attorneys' fees was not reciprocal. Missouri, K. & T. R. v. Cade, 233 U. S. 642. The ruling in the case last cited also serves to demonstrate the want of merit in the contention that the question here presented is governed by Gulf, C. & S.F. Ry. v. Ellis, 165 U. S. 150.
Again we deem it necessary to observe that the opinion here expressed is confined to the case before us. We do not, therefore, imply that the reasoning here applied would be controlling in a case where, although the name "mandamus" was preserved, in substance and effect the distinction between that writ in an accurate sense and ordinary procedure would have disappeared.
It follows from what we have said that error was committed in the court below in allowing the items of damages for attorneys' fees, traveling expenses, etc., in the Supreme Court of the United States, and that, from a federal point of view, there was no error in the judgment below to the extent that it awarded the damages complained and allowed a claim for attorneys' fees for services rendered in the state court. And, to give effect to these conclusions, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.


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In the past few years, the debate on the interplay between competition law and intellectual property rights (IP) in India has continued to draw attention. In addition to dealing with questions of jurisdiction and addressing disputes dealing with fair, reasonable and non-discriminatory (FRAND) terms, the Competition Commission of India (CCI) has increasingly focused its attention on issues such as the impact of standard-setting on competition law; and the use (or abuse) of IP-related judicial processes by dominant enterprises to stifle competition.
The general prohibition on anticompetitive agreements2 and abuse of dominance3 under the Indian Competition Act, 2002 (the Competition Act) applies equally to IP-related business practices as it would to non-IP-related conduct. The only reference to IP rights in the Competition Act is by way of an express carveout that recognises the right of any person to impose reasonable and necessary conditions for protecting IP rights, specifically conferred under certain identified Indian IP statutes.4 This carveout does not, however, extend to unilateral conduct, thereby exposing IP holders to the risk of scrutiny under the abuse-of-dominance provision (Section 4) of the Competition Act.
In this chapter, we provide (1) a brief overview of the year in review; (2) issues surrounding antitrust and licensing in India; (3) the international debate surrounding the standard-selection process and the manner in which the CCI and Competition Appellate Tribunal (COMPAT) have interpreted competition claims arising out of standards while issuing prima facie orders;5 (4) the circumstances under which transfer of IP could be viewed as a transfer of assets under the merger control provisions (Section 5) of the Competition Act;6 and (5) finally we discuss, under 'other abuses', the emerging jurisprudence involving IP-related vexatious litigation leading to abuse-of-dominance claims before the CCI.
The emerging discourse surrounding IP-linked antitrust issues in India is invariably tied to the application of the disciplines contained in Section 3 of the Competition Act (which deals with anticompetitive agreements) and Section 4 of the Competition Act (which deals with abuse of dominance).
The debate on IP-related antitrust issues in India came to the fore in 2014 when the CCI examined7 whether the practice of several domestic and multinational passenger vehicle manufacturers (PVMs) of selling spare parts and diagnostic kits only through authorised dealers resulted in 'denial of market access'8 to independent repairers and after-sales service providers, or constituted a 'refusal to deal'.9 Without examining the larger question of the primacy of IP holders' right to use and commercialise an IP-protected technology the way they deem appropriate, the CCI summarily held that PVMs' decision not to supply spare parts and diagnostic kits to third-party or non-authorised dealers and after-sales repair and service providers results in denial of market access, and IP rights do not offer any protection from a finding of infringement under Section 4 of the Competition Act.10 Consequently, the CCI has opened the door for 'compulsory licensing' of IP protected technology to third parties, should it establish that the owner of the IP-protected technology is in a dominant position in a relevant market.
On appeal by certain PVMs, the COMPAT agreed with the CCI's findings that PVMs' decision not to supply spare parts and diagnostic kits to third-party or non-authorised dealers amounted to refusal to deal.13 Further, the COMPAT dismissed the arguments of the PVMs that restrictions requiring supply of spare parts and diagnostic tools only through authorised dealers were 'reasonable' restrictions to protect their IP and that the PVMs were simply trying to prevent the circulation of counterfeit spare parts in the aftermarkets. In this regard, the COMPAT observed that circulation of counterfeit parts would be curbed if the restrictions imposed by PVMs on sale of genuine spare parts in the aftermarkets were removed.
While coming to its decision, the COMPAT also observed that the PVMs did not have valid IP rights because (1) the PVMs' copyright protection did not subsist under the copyright laws in India, as the article to which the copyrighted drawings pertained had been produced more than 50 times by an industrial process,14 and (2) the PVMs were not able to prove that the right under a patent registered by a parent outside India is available in India.
More recently, the Madras High Court,16 in a decision that could be more immediately relevant to competition cases initiated at the behest of IP implementers against the potentially anticompetitive practices of IP owners, has ruled that the scheme of the Competition Act empowers the CCI to consider settlement agreements between the complainants and defendants.
The potential repercussion of this judgment of the Madras High Court on settlement in IP cases is discussed in the subsequent paragraphs.
Antitrust concerns associated with IP licensing arrangements are relatively low on the CCI's enforcement agenda. Where the CCI has dealt with complaints arising out of the unfairness or restrictions of licensing terms, it has done so fairly simplistically, without dealing, in any significant manner, with the interplay of IP and antitrust or balancing IP rights with the public interest.
Notably, the Competition Act provides a limited carveout allowing IP owners to impose restrictions, including restrictions accompanying their licensing arrangements that are reasonable and necessary to prevent the infringement of their existing IP rights.
Unlike in the United States and the EU, where refusal to deal is usually examined as unilateral conduct, in India, refusal to deal can also be scrutinised as an anticompetitive vertical restraint. Thus, a refusal to grant a licence altogether or imposition of unreasonably restrictive licensing terms can be examined as a potentially anticompetitive refusal to deal. For instance, in the Auto Parts case, the CCI viewed the car companies' refusal to license their diagnostic (software) tools and repair manuals to independent repairers and workshops as an anticompetitive refusal to deal.
A 'refusal to license' can equally be scrutinised as an abuse of dominance under Section 4 of the Competition Act, to the extent that the refusal results in a denial of market access,23 restricts the production of goods or services,24 or restricts the technical or scientific development relating to goods or services.25 For instance, in the Auto Parts case, apart from holding the car companies liable for anticompetitive vertical restraints, the CCI also held that the car companies' refusal to license the diagnostic tools to independent repairers and workshops was an abuse of their dominance.
In turn, Monsanto Technology LLC (Monsanto) filed a suit for infringement of patent, trademark and passing off before the Delhi High Court against the Nuziveedu group (sublicensee of Monsanto's BT cotton technology). The Nuziveedu group refused to pay the licence fee in terms of the agreements with Monsanto, claiming that Monsanto could not claim any more than the 'trait value' fixed by the state governments. Recently, a division bench of the Delhi High Court found against Monsanto by stating that plant varieties and seeds cannot be patented under the Indian Patents Act. The observations of the Delhi High Court in this case may have a bearing on the CCI's investigation against MIU. The CCI has dealt with the issue of discriminatory or unfair licensing terms in a few cases. In Atos/Verifone,30 the CCI examined allegations that Verifone, a manufacturer of point of sale (POS) terminals, had imposed unfair and discriminatory conditions in the grant of licences for its software development kits (SDKs), a basic version of which was required to operate POS terminals,31 to value-added service (VAS) providers32 and third-party processors (TPPs)33 such as Atos. In its licensing arrangements with VAS providers, Verifone restricted the licensee from using any third party to develop or assist in developing any software using the licensed software, without first obtaining prior permission from Verifone and disclosing certain confidential information, including the names of its customers. Verifone contended that these restrictions were further to its IP rights pursuant to which it could legitimately restrict the grant of its licence to third parties without its permission. The CCI disagreed with Verifone's plea and viewed the restrictions as simply the means to further Verifone's entry and growth in the VAS market. The CCI also held that Verifone's rationale for not allowing VAS developers to develop payment software (i.e., that it may damage the basic software of the POS terminal that was necessary for its functioning) was inconsistent with Verifone's practices in other countries. The CCI also found the SDK licence agreement imposed 'unfair' disclosure requirements on VAS providers that were driven by Verifone's desire to gain confidential commercial information from VAS providers and enable it to exploit the lucrative VAS market. Based on these findings, the CCI held that Verifone had imposed unfair and discriminatory terms in its SDK licence agreements with VAS providers and imposed a penalty of approximately US$670,000.
The CCI's approach towards excessive pricing claims in the IP licensing context is consistent with its general approach on unfair pricing, where it has chosen to adopt a simple cost-plus approach for determining whether the price has a reasonable relation to the economic value of the product supplied. The CCI's decisions on IP and antitrust issues are being contested before the appellate courts and it will take a while before definite guidance on these issues emerges.
While the approach adopted by the COMPAT seems to suggest that a private standard-setting process involving non-SEPs can indeed be investigated under the Competition Act, it remains to be seen how the CCI will balance, on one hand, the need to protect IP developed jointly for the promotion of minimum cinematic 'quality' standards with, on the other hand, the competing claims that the IP is being misused to keep out 'non-compliant' film distributors and results in an abuse of dominance.
In more recent cases, however, the CCI appears to be increasingly reluctant to view as abusive conduct the use of court proceedings to enforce legitimate IP rights. For instance, recently the CCI, in an initiation order in Biocon v. Roche, considered that Roche had been engaged in a long-drawn-out (and continuing) legal battle involving IP rights before the Delhi High Court and noted that recourse to legal proceedings is a right of every party and, as a general principle, cannot be viewed as being sham litigation except under exceptional circumstances.47 It seems the intensity of the underlying patent battle, as reflected by the time taken in arguments before the High Court, has weighed heavily with the CCI in determining that the patent litigation was not vexatious.
The Madras High Court's observed in The Tamil Nadu Film Exhibitors Association v. Competition Commission of India that the Competition Act permits the parties to settle their dispute, subject to CCI's satisfaction that the settlement would not lead to or help continue any anticompetitive practice in India. This observation opens the door for the CCI to consider the global licence agreement between Micromax and Ericsson and the subsequent request by Micromax to terminate the proceedings against Ericsson while examining the allegations against Ericsson. While the Competition Act is designed to remedy instances of anticompetitive practice affecting the market as a whole and not just the interests of select competitors, the CCI may very well continue to examine the allegations against Ericsson; the very fact that Micromax no longer wishes to pursue its claims against Ericsson may weaken the CCI's case against Ericsson.
To conclude, the CCI has adopted a largely balanced and progressive approach in ensuring that the enforcement of competition law is not at odds with preservation of IPs. In doing so, it has taken cues from decisional practice in other jurisdictions, and has evolved its own jurisprudence on issues such as whether patent litigation is sham, or indeed on the role of private standards in the market. However, much of the future direction of the CCI's decision-making in this area will be determined in appellate review, where the Indian Supreme Court is likely to have the last word. As with many other issues, the enforcement of antitrust law on questions involving IP is likely to continue to evolve in the coming years.
1 Rahul Rai is a partner, Akshat Kulshrestha is a senior associate and Rahul Shukla is an associate at AZB & Partners.
2 Contained in Section 3 of the Competition Act.
3 Contained in Section 4 of the Competition Act.
4 Section 3(1) of the Competition Act prohibits enterprises from entering into agreements that cause or are likely to cause an appreciable adverse effect on competition (AAEC) within India. Section 3(5) of the Competition Act provides that the prohibition on enterprises from entering into agreements that cause an AAEC does not extend to the right of any person to restrain any infringement of, or to impose reasonable conditions as may be necessary for protecting, any of his or her rights that have been or may be conferred upon him or her under (1) the Copyright Act, 1957; (2) the Patents Act, 1970; (3) the Trade and Merchandise Marks Act, 1958 or the Trade Marks Act, 1999; (4) the Geographical Indications of Goods (Registration and Protection) Act, 1999; (5) the Designs Act, 2002; and (6) the Semiconductor Integrated Circuits Layout-Design Act, 2000.
5 Section 26(1) of the Competition Act authorises the CCI to issue orders directing the Director General to investigate a matter, where the CCI is of the prima facie view, upon receipt of information or reference made by the government or a statutory authority, that the provisions of the Competition Act may have been violated.
6 Section 5 of the Act includes an acquisition of asset where the acquirer enterprise or group and the target enterprise exceed the prescribed jurisdictional thresholds.
7 See In re: Shri Shamsher Kataria v. Honda Siel Cars Indian Ltd & Others (case No. 03/2011, 25 August 2014: the Auto Parts case). On an appeal by three vehicle manufacturers, the appellate court upheld the findings of the CCI. The case is currently pending before the Supreme Court.
8 Conduct listed as abusive under Section 4 of the Competition Act.
9 Refusal to deal is identified as a type of vertical restriction in Section 3(4) of the Competition Act. Explanation (d) to Section 3(4) of the Competition Act defines 'refusal to deal' as including any agreement that restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought.
10 Paragraph 20.5.85, page 157 of the Auto Parts case.
11 Taking the example of whether the sale of CT scan machines to hospitals would compromise the IP right of the CT scan machine manufacturer, the CCI concluded that this would not be the case as then all CT scan manufacturers would need to open diagnostic centres for diagnosing patients.
12 See paragraph 20.6.22, page 190 of the Auto Parts case.
13 Shamsher Kataria v. Honda Siel Car & Others (case No. 3 of 2011), and Toyota Kirloskar Motor Private Limited & Ors. v. Competition Commission of India & Others (Appeal No. 60 of 2014).
15 M/s Picasso Animation Private Limited v. M/s. Picasso Digital Media Pvt. Limited (case No. 75 of 2016).
16 The Tamil Nadu Film Exhibitors Association v. Competition Commission of India (Writ Appeal Nos. 1806 and 1807 of 2013).
17 Automobiles Dealers Association, Hathras, UP v. Global Automobiles & Ors. and Pooja Expo India Private Limited (case No. 33 of 2011).
18 Pursuant to Explanation (e) to Section 3(4) of the Competition Act, an IP licensor could impose a price ceiling (i.e., a maximum resale price) but not a price floor (i.e., a minimum resale price).
19 Pursuant to Explanation (c) to Section 3(4) of the Competition Act, 'exclusive distribution agreements' include 'any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods are identified under the Competition Act as a vertical restraint and is prohibited if it results in an AAEC'.
20 Pursuant to Explanation (d) to Section 3(4) of the Competition Act, 'refusal to deal' includes 'any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought'.
21 Pursuant to Explanation (d) to Section 3(4) of the Competition Act, 'exclusive supply agreements' include 'any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person'.
22 Pursuant to Explanation (a) to Section 3(4) of the Competition Act, a 'tie-in' arrangement includes 'any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods'.
23 Section 4(2)(c) of the Competition Act.
24 Section 4(2)(b)(i) of the Competition Act.
25 Since the CCI has held that for a vertical restriction to qualify as an anticompetitive vertical arrangement, market power is necessary, vertical restrictions may equally be examined as unilateral conduct (where the entity imposing the restriction is a dominant entity).
26 Justickets Pvt. Ltd v. Big Tree Entertainment (case No. 8 of 2016).
27 Section 4(2)(a)(ii) of the Competition Act.
28 Case Nos. 37, 38 and 39 of 2016.
29 In addition to the trait value, MIU's licensor entity in India (Mahyo Monsanto Biotech Limited) also charged a significant upfront one-time non-refundable fee of approximately US$75,000.
31 POS terminals along with their core applications are either sold directly to the customers, such as banks and retail outlets, or to the TPPs, who act on behalf of the acquiring banks and also render VAS to develop and integrate applications into POS terminals.
32 VAS providers develop applications including loyalty, bill payment, money transfer, top-up and dynamic currency conversion for integration into POS terminals. Customers of VAS providers, including banks and financial institutions, use these services to customise commission and install and maintain POS terminals at merchant locations.
33 TPPs track the process of payment from the time a card is swiped for payment until a customer receives a printed charge slip at the POS terminal of the merchant.
34 Sony Electronics v. Soundview Technologies Inc, 157 F.Supp. 2d 180 (D.Conn. 2001).
35 A standard, by definition, eliminates alternative technologies. When a patented technology is incorporated in a standard, adoption of the standard eliminates alternatives to patented technology. The value of a patent becomes significantly enhanced after the patent is incorporated in a standard.
36 Broadcom Corp. v. Qualcomm Inc, 501 F.3d 297, 314 (3d Cir. 2007).
37 Patent hold-up refers to a situation where participants chose not to make a complete disclosure of their patents during the standard-selection process, and once the standards were widely adopted, demanded unreasonable royalty. Also see In re Rambus Inc, Dkt. No. 9302 (FTC 2002), In re Union Oil Co of Cal, Dkt. No. 9305 (FTC 2003), In the matter of Dell Computer Corp 121 F.T.C. 616 (1996).
38 Director General is the investigative arm of the CCI and is commonly referred to as 'DG'.
39 Telefonaktiebolaget Lm Ericsson (Publ) v. Competition Commission Of India and Another W.P.(C) Nos. 464/2014 & 1006/2014.
40 In re K Sera Sera Digital Cinema Pvt. Ltd. v. Digital Cinema Initiatives, LLC & Ors. (case No. 30 of 2015).
41 Section 3(5) of the Competition Act provides for an IP protection carveout, by allowing the IP holder to impose reasonable conditions for protection of IP, but this carveout applies only to horizontal and vertical agreements under Section 3 and not to abuse of dominance under Section 4.
42 The case is now pending before the Supreme Court of India.
43 Combination Registration No. C-2016/11/456, AT&T and Time Warner Inc.
44 See ITT Promedia NV v. Commission of the European Communities (case T-111/96), and Professional Real Estsate Investors Inc v. Columbia Pictures Industries, 508 US, 49, 60–61 (1993).
45 M/s Bull Machines Pvt Ltd v. M/s JCB India Ltd & Ors (case No. 105 of 2013).
47 Biocon Limited & Mylan Pharmaceuticals Private Limited v. F Hoffmann-La Roche AG & Ors (case No. 68 of 2016).
48 CCI's prima facie orders are somewhat equivalent to the statement of objects and reasons issued by the European Commission.
49 InPhase Power Technologies Pvt Ltd v. ABB India Ltd (case No. 12 of 2016).

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You have asked for guidance regarding the removal of sheriffs and other public officials from the definition of “local government” in the 2004 amendment to O.C.G.A. § 36‑70‑2(5.2) (Supp. 2004) in House Bill 666.
The responsibility for delivery of local government services is addressed in Article 2 of Chapter 70 of Title 36 of the Code. O.C.G.A. §§ 36‑70‑20 through 36‑70‑28 (2000 and Supp. 2004). Under the provisions governing planning, counties and cities are to develop coordinated and comprehensive plans pursuant to minimum standards and procedures established by the Department of Community Affairs. See O.C.G.A. §§ 36‑70‑1 through 36‑70‑5 (2000 and Supp. 2004); see also 50-8-30. Under Article 2 of Chapter 70, entitled “Service Delivery,” local governments are to “execute an agreement for the implementation of a local government service delivery strategy as set forth in this article by July 1, 1999.” O.C.G.A. § 36‑70‑21. Revisions to the service delivery strategy are to be made “if necessary,” as provided in O.C.G.A. § 36‑70‑28(b)(1)–(6).
(5.2) 'Local government' means any county as defined in paragraph (3) of this Code section or any municipality as defined in paragraph (7) of this Code section. The term does not include any school district of this state nor any sheriff, clerk of the superior court, judge of the probate court, or tax commissioner or the office, personnel, or services provided by such elected officials.
2004 Ga. Laws 585 § 1 (emphasis added) (underscored matter added by 2004 amendment), amending O.C.G.A. § 36‑70‑2(5.2) (effective May 13, 2004).
As I understand from your letter, there has been a disagreement between Hall County and the City of Gainesville regarding whether, by enacting HB 666, the General Assembly meant to remove or omit the costs of the sheriff and the sheriff’s office from tax equity negotiations between cities and counties. We have received and reviewed the analyses from you as counsel for Hall County, from counsel for the Association County Commissioners of Georgia, and from counsel for the Georgia Municipal Association. You conclude in your letter that HB 666 “provides that the operations of the sheriff, clerk of court, probate judge and tax commissioner are not to be included in the deliberations between county commissioners and municipal officials in negotiating county Service Delivery Strategies.” This view is shared by the Association County Commissioners of Georgia.
GMA has learned that county officials engaged in updates to their comprehensive plans and/or service delivery strategies are now attempting to use this amendment to specifically exclude the costs and services of the sheriff’s office from examination under the tax equity provisions of the Service Delivery Strategy Act. Please be advised that HB 666, if signed by the Governor, will not change this requirement. In fact, counties must still address the tax equity issues caused by the cost of services provided primarily for the benefit of unincorporated areas of the county. These costs must be borne by the unincorporated area residents who receive these services.
Publication by GMA dated May 10, 2004, to GMA Member Cities from Jim Higdon, Executive Director.
We received a letter from counsel for GMA which states that the Service Delivery statutes focus not on the services a local government “could” provide, but the ones they “actually do” provide. Letter from Susan Pruett, General Counsel for GMA, dated January 28, 2005, at 2 (hereinafter “GMA letter”). In the letter, GMA’s counsel contends that sheriffs have both “mandated” duties and “discretionary” duties. GMA letter at 1. GMA agrees that the mandated duties, like running the county jail, serving process, transporting prisoners, and providing security for the courthouse, should be funded on a county-wide basis. Id. However, GMA counsel argues that the “patrol function” of the sheriff’s office is “not provided on a county-wide basis in many areas of this state,” and that “city residents should not be required to pay both city ad valorem taxes to fund the law enforcement services of the city police department and pay county ad valorem taxes to pay for law enforcement services of the sheriff’s office provided only to unincorporated area residents.” Id. at 1, 2. As I understand it, counsel for GMA argues that HB 666 does not exclude the costs of the sheriff’s office “from examination under the tax equity provisions” of the Service Delivery statutes because the change to the definition of “local government” in HB 666 did not effect a change of the meaning of the phrase “any service” in O.C.G.A. § 36‑70‑24(3)(A) (Supp. 2004). Id. at 3. As I further understand, the argument is that the phrase “any service” includes the services of the sheriff and the sheriff’s office. The amendment to the term “local government” did not effect a change in the meaning of “any service”; thus, the amendment does not alter the requirement that cities and counties must fully consider the way services are funded to assure that municipal residents are not taxed twice for law enforcement services of both city police and the sheriff’s office. Id. at 2.
Local governments are to develop service delivery strategies that “promote the delivery of local government services in the most efficient, effective, and responsive manner. The strategy shall identify steps which will be taken to remediate or avoid overlapping and unnecessary competition and duplication of service delivery and shall identify the time frame in which such steps shall be taken.” O.C.G.A § 36‑70‑24(1) (Supp. 2004).
GMA objects to paying for services of the sheriffs which it sees as duplicative of municipal law enforcement services. However, the definition of “local governments” in HB 666 expressly excludes sheriffs and the other officials listed and their offices. In construing this statute, “the ordinary signification shall be applied to all words." O.C.G.A. § 1‑3‑1(b). GMA’s view that the phrase “any service” is not synonymous with any “local government service” is not borne out by the plain language of the statute. In O.C.GA. § 36‑70‑24(3)(A) (Supp. 2004), the term “any” modifies “service,” and Chapter 70 of Title 36 concerns the “strategy” for the delivery of services.
The strategy shall ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service. Further, when the county and one or more municipalities jointly fund a county-wide service, the county share of such funding shall be borne by the unincorporated residents, individuals, and property owners that receive the service.
O.C.G.A. § 36‑70‑24(3)(A) (Supp. 2004) (emphasis added).
This is consistent with the analysis of a commentator who stated that “[a] clarifying statute provides that sheriffs, clerks of court, probate judges, and tax commissioners are not included in county-municipal deliberations for formulating county service delivery strategies.” R. Perry Sentell, Jr., Annual Survey of Georgia Law: June 1, 2003 - May 31, 2004, Local Government Law, 56 Mercer L. Rev. 351, 393 (2004) (citing Ga. H.R. Bill 666, Reg. Sess. (2004)) (emphasis added). Thus, whenever the phrase “local government services” or any analogous phrase is used, HB 666 expressly provides that sheriffs, the other listed officials and their offices are “not include[ed].” 2004 Ga. Laws 585 § 1.
(4) An identification of the mechanisms to be utilized to facilitate the implementation of the services and funding responsibilities identified pursuant to paragraphs (2) and (3) of this Code section.
O.C.G.A. § 36‑70‑23 (emphasis added).
(2)(A) The strategy shall provide that water or sewer fees charged to customers located outside the geographic boundaries of a service provider shall not be arbitrarily higher than the fees charged to customers . . . located within the geographic boundaries of the service provider.
Therefore, it is my unofficial opinion that the 2004 amendment to O.C.G.A. § 36‑70‑2(5.2) (Supp. 2004) removes any sheriff, clerk of the superior court, judge of the probate court, or tax commissioner or the office, personnel, or services provided by such elected officials from the definition of “local government” with the result that those officials and the costs of their offices are not to be included in the deliberations of local government officials when formulating agreements between counties and cities regarding the delivery of local government services.


text:
Anushka Sharma analyzes the squeeze-outs effectuated under section 66 of the Companies Act, 2013 and discusses the regulatory framework governing them along with delineating the role played by regulatory bodies such as SEBI in this area. It then understands the position of the minority shareholders in this context by discussing various judicial pronouncements on the issue and highlights the need for safeguarding the interests of the minority shareholders.
This paper aims to discuss the reduction of capital under section 66 in the context of its usage to squeeze out the minority shareholders. In its discussion regarding squeeze-outs, the scope of the paper is limited to the squeeze outs engineered by reduction of capital under section 66. It aims to understand the law governing squeeze outs in India by analyzing various judicial decisions on the issue and follows the Doctrinal approach. In the course of the paper I argue that the Indian courts have sanctioned the squeezing out of minorities via selective reduction of capital as long as the shareholders are being paid a fair price and have preferred to stick to the policy of non-intervention in the internal decisions of the company that are backed by the support of the majority. Part II of the paper briefly discusses the statutory provision governing squeeze-outs by reduction while also discussing the distinction between ‘reduction’ and buy-back using judicial precedents on the subject. Part III maps the evolution of case law regarding squeeze outs in India and also discusses the court’s approach towards contentions raised by the regulatory bodies and their role under the 2013 Act. Part IV contains the observation based on the analysis of the judgements with special focus on the status of the requirement of a Majority of Minority vote in case of squeeze-outs. Part V summarizes the discussion and concludes the paper.
1. S. 66, The Companies Act, 2013.
2. Ss. 100-105,The Companies Act, 1956.
3. S.66, The Companies Act, 2013.
4. Vikramaditya Khanna and Umakanth Varottil, Regulating Squeeze Outs in India: A Comparative Perspective (2014) National University of Singapore Law Working Paper Series, 4, Working Paper Number 009/2014, National University of Singapore (2014).
7. Abhishek Sanyal, Reduction of Capital: The most effective mechanism to engineer a squeeze out, Indian Express, available at https://www.financialexpress.com/industry/reduction-of-capital-the-most-effective-mechanism-to-engineer-a-squeeze-out/794398/, last seen on 14/9/2018.
8. Rajiv Luthra, William Vivian John and Anshul Jain, Minority Squeeze-Out, Luthra and Luthra, available at http://www.luthra.com/admin/article_images/minority-squeeze.pdf, last seen on 13/9/2018.
The procedure of squeezing out under section 66 involves buying back the shares of the minority shareholders and then cancelling which leads to a consequential reduction of capital. This appears to be quite similar procedurally to a buyback of shares under section 68 (earlier section 77 of the companies act, 1956) of the Companies Act, 2013.18 An argument to that effect was raised by the petitioner in the case of In re: Reckitt Benckiser (India) Ltd19 where it was argued that since the reduction in the given case is essentially a buy back, the requirements of section 77 (Companies Act, 1956) should also be fulfilled and the company should be required to reduce its capital proportionately. However the court held that buy back and reduction operate in two entirely different fields, by placing reliance on Securities and Exchange Board of India v. Sterlite Industries.20 The court stated that by virtue of the wording of section 77 which states ‘notwithstanding anything contained in this act,’ buy back under section 77 and reduction under section 100 (Companies Act, 1956) are two separate provisions, independent to each other.21 Hence, there can be no requirement of the reduction under section 100 to be proportionate22 and it can be ‘in any manner’ (which includes a selective reduction) as provided under the section.23 Another distinction between the two includes that for a buy back there is no requirement of NCLT approval. However the distinction between the two is merely procedural in nature as both of them invariably lead to a reduction in capital.
9. A Ramaiya, Guide to the Companies Act, ch.4, 7 (Vol 1, 18th ed., 2015).
11. S.66, The Companies Act, 2013.
14. Vikramaditya Khanna and Umakanth Varottil, Regulating Squeeze Outs in India: A Comparative Perspective (2014) National University of Singapore Law Working Paper Series, 4, Working Paper Number 009/2014, National University of Singapore (2014).
16. Supra 4, at 16.
17. S. 66(5), The Companies Act, 2013. See also, In Re: Walker & Smith Ltd., (1903) 88 LT 792 (Ch D).
18. Ss. 66, 68, The Companies Act, 2013.
19. In Re: Reckitt Benckiser (India) Ltd, MANU/DE/3902/2011.
20. SEBI v. Sterlite Industries (India) Ltd  45 SCL 475 (Bom).
22. In Re: Reckitt Benckiser (India) Ltd, MANU/DE/3902/2011.
23. S. 66, The Companies Act, 2013.
The matter of reduction of share capital is a domestic concern of the company.
If the majority decides to reduce the share capital and passes a special resolution to that effect, it also has the right to determine the manner of the reduction.
Selective reduction of capital is permitted within the same class of shares, and it is entirely a domestic matter so as to whether the share of each member would be reduced proportionately or whether shares of certain members will be extinguished entirely leaving others untouched.
Court has to ensure that the transaction is fair and equitable and all the creditors have gotten the right to object or have been paid, secured or have consented.
24. British and American Trustee and Finance Corp v. Couper  A.C. 399.
26. Sandvik Asia v. Bharat Kumar Padamsi (2009) 3 Bom CR 57, ¶ 8, See also Kartikey Jain, Pankaj Rathi, Squeeze-out by way of reduction of capital in India: an analysis in the light of the recent decision in Cadbury India case 26(8), International Company and Commercial Law Review, 260, 445(2015).
26. Ramesh B. Desai v. Bipin Vadilal Mehta (2006) 5 SCC 638. See also In Re: Elpro International Ltd 2008 (86) SCL 47 (Bom), ¶ 14.
27. Reckitt Benckiser (India) Ltd. v. Unknown, 122 (2005) DLT 612.
28. Ibid, at ¶ 10.
29. Ibid, at ¶ 31.
30. Reckitt Benckiser (India) Ltd. v. Unknown, 122 (2005) DLT 612, ¶ 33.
31. In Re: Elpro International Ltd 2008 (86) SCL 47 (Bom).
32. Ibid, at ¶ 15.
33. Sandvik Asia v. Bharat Kumar Padamsi  50 SCL 413 (Bom). See also Kartikey Jain, Pankaj Rathi, Squeeze-out by way of reduction of capital in India: an analysis in the light of the recent decision in Cadbury India case 26(8), International Company and Commercial Law Review, 260 (2015).
36. Sandvik Asia v. Bharat Kumar Padamsi, 2009 (3) Bom CR 57.
38. In Re Organon (India) Limited, (2010) 98 CLA 480 (Bom.). See also Kirthana Singh, Squeezing Out Minority Shareholders- An Indian Perspective, Jurip, available at http://jurip.org/wp-content/uploads/2018/01/Kirthana-Singh.pdf, last seen on 14/9/2018.
39. In Re Organon (India) Limited, (2010) 98 CLA 480 (Bom.).
41. Chetan G Cholera v. Rockwool (India) Limited, (2010) 155 Comp Cas 605 (AP).
42. Ibid, at ¶ 30.
44. In re: Reckitt Benckiser Ltd, MANU/DE/3902/2011, ¶ 43.
45. In re: Reckitt Benckiser Ltd, MANU/DE/3902/2011, ¶ 43.
47. In Re: Cadbury India Limited, MANU/MH/2681/2014.
48. Kartikey Jain, Pankaj Rathi, Squeeze-out by way of reduction of capital in India: an analysis in the light of the recent decision in Cadbury India case 26(8), International Company and Commercial Law Review, 260, 445(2015).
50. Securities & Exchange Board of India v. Sterlite Industries, 2003 25 SCL 475 Bom.
54. S. 66(2), The Companies Act, 2013.
55. Supra 4, at 26.
58. S. 66(2), The Companies Act, 2013.
59. Supra 4, at 27.
Another common characteristic in all the above cases regarding a squeeze out via section 66 is the fact that the majority of minority (hereinafter ‘MoM’) has supported the reduction in all these instances. The courts have also laid down the support of ‘overwhelming majority of the minority (non-promoter) shareholders’ as being one of the factors for approving selective reduction of capital which wipes out the minority shareholding. Therefore even though the statute allows for the company to selectively reduce its share capital without any requirement of the approval of the MoM, there hasn’t been an instance so far in which they have opposed the proposed reduction. So can this be understood to mean that in case the MoM does not vote in favour of the proposal they can be allowed to retain their shares in the company? Does the court have the authority to disallow a reduction on this ground when the statute does not prohibit selective reduction?
While this can be a way to look at it, the absence of a MoM vote can also lead to objections from the SEBI against the company, and in light of the Rockwool judgement it might be argued that the courts might in certain instances also be inclined towards disallowing the reduction to safeguard the minority interest. The requirement of the consideration of ‘public interest’ as laid down in Cadbury also comes into play here, which can be used to contend that if an overwhelming majority of the minority has opposed the forced squeeze-out then would be against public interest to let the company to steamroll them. Various scholars have also suggested the usage of the MoM vote to determine the reduction of capital in cases of minority squeeze-outs which would safeguard their interests and would prevent the forcible acquisition of their shares by the promoters.63 Hence, the decision of the court can go either way, and there is a need of judicial clarification on this issue which has not been provided so far.
In my opinion, in order to balance the interests of the company on one hand and to safeguard the minorities on the other, there should be two votes on the issue of reduction of capital. One on the question of whether to reduce the capital or not which should be decided by a special resolution and another in which the manner in which the reduction will be engineered should be put to vote, i.e. whether the shares of all shareholders are to reduced proportionately or a selective reduction which extinguishes the shares of certain members entirely is to be done. On the second question a Majority of Minority should be required to vote in favour of the manner of reduction of capital for it to be valid.
It has also been suggested that in order to protect the interests of minority shareholders there should also be a requirement of the approval of the squeeze-out by Independent Directors whose decision cannot be influenced by the promoters/controllers of the company.64 This will act as an additional safeguard to ensure that the interests of the minority shareholders are not being manipulated for the benefit of the controllers.
60. Somasekhar Sundaresan, Minority Shareholders can be thrown out, Business Standard, available at https://www.business-standard.com/article/economy-policy/minority-shareholders-can-be-thrown-out-109050400001_1.html, last seen on 15/9/ 2018.
61. Mihir Naniwadekar, Andhra Pradesh High Court on Reduction of Capital: More Uncertainity,? India Corp Law Blog, available at https://indiacorplaw.in/2010/09/andhra-pradesh-high-court-on-reduction.html, last seen on 14/9/2018.
62. In re: Reckitt Benckiser Ltd, MANU/DE/3902/2011, See also Wartsila India ltd v. Janak Mathuradas  104 SCL 616 (Bom).
63. Vikramaditya Khanna and Umakanth Varottil, ‘Regulating Squeeze Outs in India: A Comparative Perspective’ (2014) National University of Singapore Law Working Paper Series, Paper 009/2014, 4 https://law.nus.edu.sg/wps/pdfs/009_2014_Umakanth%20Varottil.pdf accessed 15 September 2018. See also Kartikey Jain, Pankaj Rathi, Squeeze-out by way of reduction of capital in India: an analysis in the light of the recent decision in Cadbury India case 26(8), International Company and Commercial Law Review, 260 (2015).
The most feasible method to engineer a squeeze-out in India is via the reduction of share capital under section 66, as has also been illustrated by numerous cases in the recent past. The legal position on the issue is fairly settled, and the courts have had a limited intervention on the issue of squeezing out by way of selective reduction, as long as it has been backed by the support of the majority and the shareholders have been offered a fair price. The statutory provisions as well as the judicial inclination has been to regard the issue of squeezing out as matter as a domestic concern of the company, but there exists a grey area regarding the status of the Majority of Minority vote in this context. It is unclear so as to what will be the court’s approach in case the MoM refuses to support the scheme of reduction, with indications in the recent past of the court giving due consideration to public interest as well as the interests of the minority. The regulatory bodies such as SEBI have an important role to play here as well. As has been pointed out by Mr. Somasekhar Sundaresan, that the issue here is not just of the payment of a fair amount to the shareholders whose shares are being acquired coercively by the company, but is that whether he has a right to hold his shares of which he is a lawful owner, or can he be compelled to divest his property by the promoters.65 Hence, it is required on the part of the courts that due consideration is given to the interests of the minority shareholders while ensuring that they do not encroach upon the domestic matters of the companies, a careful balance must be struck between the two.
ANUSHKA SHARMA is pursuing B.A. LLB (Hons.) at the National University of Juridical Sciences, Kolkata. She may be contacted at sharmaanushka@nujs.edu.

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