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as the Personnel Director of Cambria County.
Jay Roberts, individually and as Sheriff of Cambria County, Appellant.
Nos. 91-3351, 91-3352, 91-3374 and 91-3377.
Dennis J. Clark (argued), Plunkett & Cooney, P.C., Pittsburgh, Pa., for Jay Roberts, appellant in No. 91-3351.
Thomas A. Livingston (argued), Pittsburgh, Pa., for Joseph Roberts, appellant in 91-3352.
Alex E. Echard, Mount Pleasant, Pa., for County of Cambria, Cambria County Salary Bd., Ron Stephenson, T.T. Metzger, Jr., Cambria County Bd. of Comm'rs, Robert McCormick, Cambria County Controller, Laurel Crest Manor and Jeffrey Saintz, Personnel Director, appellants in No. 91-3374.
Calvin John Webb, II (argued), Dino S. Persio, Smorto, Persio, Zadzilko, Sibert, Webb & Milliron, Ebensburg, Pa., for Thomas Burns, appellant in No. 91-3377.
Williams C. Andrews, Lee V. Price, Michael L. Brungo (argued), Maiello, Andrews & Price, Pittsburgh, Pa., for appellees John Mutsko, Roy Plummer, Louis Beaujon and Evelyn Ardini.
David R. Johnson, Thomason, Rhodes & Cowie, Pittsburgh, Pa., for appellee Wendell P. Davis.
Before SLOVITER, Chief Judge, SCIRICA and NYGAARD, Circuit Judges.
This appeal presents the question whether county officials have qualified immunity against claims by deputy sheriffs and a state-employed paramedic who allege they were dismissed by the officials solely for their political activity in violation of their rights under the First Amendment. The defendants' motion for summary judgment on the grounds, inter alia, of qualified immunity, was denied by the district court. On interlocutory review of the district court's order, we address only the issue of qualified immunity.
Defendant Jay Roberts was elected Sheriff of Cambria County, Pennsylvania, in December 1985. It is undisputed that on January 2, 1986, the Cambria County Salary Board, which consisted of defendants County Commissioners Joseph Roberts, Ron Stephenson, T.T. Metzger, Jr., County Controller Robert McCormick, and former Acting Sheriff Thomas Burns, voted to remove deputy sheriffs Eugene Burns, John Mutsko and Roy Plummer from the payroll of Cambria County, along with Ron Snyder, a clerk-investigator in the County Public Defender's Office, at the direction of Sheriff-elect Roberts.1 Upon taking office on January 6, 1986, Sheriff Roberts officially revoked their employment and did not call plaintiff Beaujon, who was a part-time, per diem, employee of the sheriff's office, to work again. Plaintiff Evelyn Ardini was fired in December 1985, by defendants Wendell Davis and Jeffrey Saintz from her job as a paramedic and coordinator of patient transportation for Laurel Crest Manor, a Cambria County Agency.
The plaintiffs alleged in their complaint that the dismissals were in retaliation for their failure to support Jay Roberts in the sheriff's election and/or their support of candidates who opposed him. Ardini, whose supervisor, William Tomallo, also ran against Jay Roberts in the election, testified in deposition that she was asked by Jay Roberts and his father Joseph Roberts to give them a list of the persons who telephoned Tomallo so they could know who Tomallo's political backers were, and when she didn't come up with the list she was fired. The plaintiffs seek, inter alia, compensatory damages, punitive damages, and reinstatement.
At the same time, the court denied the defendants' motion for summary judgment as to the remaining plaintiffs' claim that the defendants had violated their rights under the First Amendment. Burns v. County of Cambria, 764 F.Supp. 1031 (W.D.Pa.1991). The court found that the right of public employees not to be discharged in retaliation for exercising their rights under the First Amendment was clearly established. Id. at 1036. The court found that there was a material issue of fact as to whether the plaintiffs' political activities were substantial or motivating factors for their discharge. Id. at 1037. Finally, in considering the qualified immunity defense of the two Roberts defendants, the court held that they were not entitled to qualified immunity as a matter of law. Id.
Defendants Jay Roberts, Joseph Roberts, Thomas Burns, Ron Stephenson, T.T. Metzger, Jr., Robert McCormick, and Jeffrey Saintz have appealed the denial of summary judgment. We consider first the extent to which we can hear their appeal. Under the authority of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the denial of summary judgment on grounds of qualified immunity is appealable under the collateral order doctrine. However, we have held that we will review a claim of qualified immunity only if it was raised in the district court. See Brown v. United States, 851 F.2d 615, 620 (3d Cir.1988) (it would be "within our power ... [but] inappropriate" to address the issue of qualified immunity if the district court has not addressed it "even if the record provided a sufficient basis for its resolution"); see also Chinchello v. Fenton, 805 F.2d 126, 130 (3d Cir.1986).
It is clear from the record that both Sheriff Jay Roberts and Commissioner Joseph Roberts raised the issue of qualified immunity as a basis for their motions for summary judgment. There is no evidence, however, that any of the other defendants did. The defendants claim that they incorporated the Roberts's qualified immunity defense into their own motions for summary judgment at oral argument in May 1990, but fail to point to any particular place in the record to substantiate that claim. Significantly, in a memorandum order continuing the trial pending the interlocutory appeal of the two Roberts defendants, the district court specifically stated that the other defendants had not raised qualified immunity in connection with their summary judgment motions. The court stated "that neither the notes of the Court nor its law clerk, present at argument on the motions, include any such incorporation." App. at 117. The defendants have offered nothing to contradict the district court's finding that such incorporation never took place. Our independent review of the record has also failed to locate any motion or incorporation of qualified immunity by these other defendants.
In an attempt to salvage their appeal, these defendants direct us to other defenses they raised in support of their summary judgment motions. For example, in Burns's motion he argued that the Sheriff had the sole statutory right to revoke the appointments of plaintiffs; Burns also argued that there is no evidence to establish that he engaged in conduct that deprived anyone of rights, privileges, or immunities secured by the Constitution or laws of the United States. Similarly, the other defendants claimed that each of them was powerless to terminate sheriff's deputies.
In order to determine whether these assertions constituted a defense of qualified immunity, we must decide whether defendants were simply "attempt[ing] to show only that [they] did not engage in the conduct of which [the] plaintiff[s] complain[ ]," Chinchello, 805 F.2d at 131 (also known as the "I didn't do it" defense), or whether defendants "can accurately be described as [contending] that [they] violated no clearly established legal norm." Id. Unlike in Chinchello, where the defendant based his summary judgment motion on the "legal proposition that the alleged failure to adequately train ... even if true, did not constitute a breach of clearly established legal norms," id., the claims by the non-Roberts defendants were that they were not responsible for firing the plaintiffs. They did not claim that even if they had fired the plaintiffs, that action would not have violated the plaintiffs' clearly established constitutional rights. Only the latter contention would have invoked the qualified immunity defense. The former statement is simply the "I didn't do it" defense and therefore not cognizable as an assertion of qualified immunity.
Consistent with our prior prudential rulings, we decline to exercise jurisdiction over the appeals of defendants Stephenson, Metzger, McCormick, Burns, and Saintz. We note in passing, however, that the qualified immunity claim of these defendants would not differ in substance from that which we do address hereafter.
There is one other preliminary matter. The rationale for the Supreme Court's holding in Mitchell on the appealability of an order denying a motion for summary judgment on the grounds of qualified immunity was that qualified immunity provides protection not only against liability for money damages but also against standing trial. 472 U.S. at 524-30, 105 S.Ct. at 2814-17. The Court left open the question whether the denial of qualified immunity is also an appealable collateral order when the plaintiff states a claim not only for damages but also for injunctive relief. Id. at 519 n. 5, 105 S.Ct. at 2812 n. 5.
[t]he marginal benefit to a governmental official from an interlocutory review of a ruling that proof of damages should not be heard is so slight that it cannot outweigh the systemic harms from permitting piecemeal interlocutory review of discrete issues in a case which, even against that official, will be ongoing.
Id. at 96. However, we entertained the appeal of one defendant in Prisco who was no longer a public official because the requested injunctive and declaratory relief did not apply to him, and thus decided the relevant issues.
The parties in this case did not raise the Prisco issue, but we must review our own jurisdiction. Therefore, we directed the parties to submit letter briefs addressing the effect of Prisco on our ability to review the appellants' claims.
[a]s a practical matter, a public official who is a defendant in a suit seeking an injunction is not "on trial" at all. The suit seeks relief against him in his official capacity; he need not attend the trial.... If he leaves office during the interim, he leaves the case behind.... The "right not to be tried" pertains to the request for damages alone, for that is the source of the distraction. Moreover, if a request for an injunction prevented appeal on the question of immunity, plaintiffs who wished to harass officials to travail would need only demand equitable relief, defeating the defendants' opportunity to obtain prompt review.
Id. at 1153-54; see also Marx v. Gumbinner, 855 F.2d 783, 787 (11th Cir.1988) (emphasizing difference from government official's perspective between standing trial on claim for money damages and for injunctive relief); DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 717-18 (10th Cir.1988) (noting that government officials are at risk of personal liability and punitive damages, and may incur expense of hiring private counsel). Accord DiMartini v. Ferrin, 889 F.2d 922, 924-25 (9th Cir.1989), amended on other grounds, 906 F.2d 465 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2796, 115 L.Ed.2d 970 (1991); Giacalone v. Abrams, 850 F.2d 79, 84-85 (2d Cir.1988); Young v. Lynch, 846 F.2d 960, 961-63 (4th Cir.1988); Drake v. Scott, 812 F.2d 395, 398 (8th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); Kennedy v. City of Cleveland, 797 F.2d 297, 305-06 (6th Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1188-90 (1st Cir.1986).
Despite our own dissatisfaction with the Prisco rule, as a panel of three judges we are bound to follow our circuit's precedent. See Internal Operating Procedures, United States Court of Appeals for the Third Circuit, Rule 9.1. A recent opinion from this court voiced similar concerns, but also felt bound to apply Prisco. See Schrob v. Catterson, 967 F.2d 929, 940 (3d Cir.1992). It follows that because Sheriff Jay Roberts would remain a defendant in his official capacity to plaintiffs' claims for reinstatement, we do not have appellate jurisdiction at this time to review the denial of his qualified immunity defense.
It was, however, brought to our attention through counsel's letter briefs that Commissioner and Salary Board Member Joseph Roberts retired on January 6, 1992 and is no longer a Cambria County Official. Thus, like former Attorney General William French Smith, who was a defendant in Prisco but had ceased to be a public official, Commissioner Roberts is a defendant "only for the purpose of obtaining money damages from him," Prisco, 851 F.2d at 97, and can appeal from the order denying his motion for summary judgment on qualified immunity grounds. His, therefore, is the only appeal properly before us. We note, however, as we did concerning the appeals of the defendants who did not raise qualified immunity to support their motions for summary judgment in the district court, Jay Roberts's contentions do not differ in substance from those of Joseph Roberts, so that our continued adherence to Prisco will not prevent us from considering the qualified immunity defense.
As to Joseph Roberts's appeal, we exercise plenary review over the "purely legal" question presented. Lee v. Mihalich, 847 F.2d 66, 67 (3d Cir.1988).III.
government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Id. at 818, 102 S.Ct. at 2738.
Justice Brennan's plurality opinion in Elrod found a "presumptive prohibition" against patronage dismissals6 and put the burden on the defendant to demonstrate that party affiliation "further[ed] some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights." Id. at 360-63, 96 S.Ct. at 2683-84.
445 U.S. at 518, 100 S.Ct. at 1295.
unless the government can demonstrate "an overriding interest," "of vital importance," requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.
445 U.S. at 515-16, 100 S.Ct. at 1293 (citations omitted) (quoting Elrod, 427 U.S. at 368, 362, 96 S.Ct. at 2684); see also Zold, 935 F.2d at 635 ("The burden of proof is on the defendant to demonstrate 'an overriding interest' in order to validate an encroachment on an employee's First Amendment rights." (quoting Elrod, 427 U.S. at 368, 96 S.Ct. at 2687)).
In Branti the issue was whether assistant public defenders could be fired by an incoming Public Defender solely for their political party affiliation. The Court found that assistant public defenders did not fit into the category of those for whom party affiliation may be relevant since their responsibility was to represent individuals against the State. Premising their job tenure on party affiliation, the Court found, would undermine, not promote, their job performance. Branti, 445 U.S. at 519-20, 100 S.Ct. at 1295-96.
The defendant has a "substantial burden of demonstrating that political affiliation is an appropriate requirement for the effective performance of the deputy [sheriff]." Zold, 935 F.2d at 640. We look foremost at the "function of the public office in question." Brown v. Trench, 787 F.2d 167, 168 (3d Cir.1986); see also Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) (en banc) (threshold inquiry of whether position relates to " 'partisan political interests' " followed by inquiry into "particular responsibilities of the position" (quoting Branti, 445 U.S. at 519, 100 S.Ct. at 1295)), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987).
In making the Branti- Elrod analysis, we have held that Branti 's protection does not extend to an assistant director of public information, Brown, 787 F.2d at 168 (3d Cir.1986); assistant district attorneys, Mummau v. Ranck, 531 F.Supp. 402, 404 (E.D.Pa.1982), aff'd, 687 F.2d 9 (3d Cir.1982) (per curiam); and city solicitors and assistant city solicitors, Ness v. Marshall, 660 F.2d 517, 522-23 (3d Cir.1981). See Susan Lorde Martin, A Decade of Branti Decisions: A Government Official's Guide to Patronage Dismissals, 39 Am.U.L.Rev. 11, 23-48 (1989) (listing cases from other circuits).
All counsel in their briefs and during oral argument agreed that deputy sheriffs in the Cambria County Sheriff's office primarily perform three tasks: they serve process; they transport prisoners to and from court and between facilities; and they provide security for courtrooms. Roberts contends that party affiliation is related to job performance inasmuch as a sheriff must be assured of the loyalty and confidentiality of his deputies and he has a strong interest that everyone in his department "get along," particularly since the sheriff's office is small.
We cannot say as a matter of law that party affiliation would further the effective performance of these tasks. In Elrod, one of the plaintiffs was the chief deputy of the process division, presumably more of a policymaking position than one who simply serves process, and he was held entitled to First Amendment protection. 427 U.S. at 350, 96 S.Ct. at 2678 (plurality opinion); 375, 96 S.Ct. at 2690 (Stewart, J., concurring). The defendants have offered no reason why the political alignment between the deputy sheriffs and the sheriff is relevant to the deputies' duties in serving process, transporting prisoners, or guarding courtrooms.
Nor is it apparent why the small size of the sheriff's office, a factor defendants stress, makes partisan affiliation a relevant factor. In Branti, there were only nine assistant public defenders but the Court held that they enjoyed First Amendment protection. Although loyalty and confidentiality of sheriff's deputies are desirable attributes, those traits are needed for many working relationships. It has never been suggested that the need for loyalty and confidentiality alone supports politically motivated dismissals independent of the tasks which the employee must perform. See Elrod, 427 U.S. at 367, 96 S.Ct. at 2687.
This case stands in contrast to Brown v. Trench, where we held that the Assistant Director of Public Information for Bucks County would perform her duties of writing press releases and acting as spokesperson for elected county Commissioners most effectively if she shared the Commissioners' political beliefs, 787 F.2d at 170, and Ness v. Marshall, where we held that because the mayor relied on city solicitors to perform functions "intimately related to city policy, the mayor has the right to receive the complete cooperation and loyalty of a trusted adviser." 660 F.2d at 522. Here, there is no evidence that the sheriff himself performs any policy making function or that he relies on his deputies for any policy-type duties.
Nor does the sheriff's position as an elected official justify the political dismissal of his potential substitute. In Furlong v. Gudknecht, 808 F.2d 233 (3d Cir.1986), we found that because politics was inapposite to the duties of the elected Recorder of Deeds, the possibility that the Second Deputy Recorder could occupy the Recorder's position was not dispositive of the question of the relevance of party affiliation to the position. Id. at 236-37. Similarly, the possibility that the Chief Deputy may succeed to the Sheriff's position does not alone justify requiring their political alignment.
In short, on the basis of the record, which fails to show that Cambria County deputy sheriffs enjoy significant autonomy or discretion in their jobs or that their political activities are relevant to their duties, we hold that Roberts has failed to demonstrate that firing deputy sheriffs for their political affiliation or activities comes within the narrow exception for political dismissals recognized in Branti and Elrod. As for plaintiff Ardini, a paramedic and coordinator of patient transportation for a Cambria County agency, the defendants have raised no arguments as to how her job falls under the exception to the prohibition against patronage dismissals. Commissioner Roberts does claim that he did not have the power to dismiss Ardini but, as noted supra, that is not an issue we address in this limited review.B.
Id. at 640, 107 S.Ct. at 3039 (citations omitted).
This court has " 'adopted a broad view of what constitutes an established right of which a reasonable person would have known.' " Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir.1989) (quoting Sourbeer v. Robinson, 791 F.2d 1094, 1103 (3d Cir.1986), cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 779 (1987)), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990). In People of Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139, 144-45 (3d Cir.1984), we held that there does not have to be "precise factual correspondence" between the case at issue and a previous case in order for a right to be "clearly established," and we would not be "faithful to the purposes of immunity by permitting ... officials one liability-free violation of a constitutional or statutory requirement." Cf. Jones, 727 F.2d at 1336 (noting that exception to prohibition against patronage dismissals is "extremely narrow").
we cannot, in good conscience, conclude that in 1982 a reasonably active politician would not have believed that it would be impermissible to demote an employee in retaliation for his political speech and/or associations.... [A]s of 1982 the law was "clearly established" that a public employee could not be demoted in retaliation for exercising his rights under the first amendment.
Id. at 733. One could hardly contend that the rule was otherwise as to dismissals.
Roberts relies on the opinion of the Seventh Circuit in Upton, which held that it was not "clearly established" that deputy sheriffs had a right to be free from political firing. 930 F.2d at 1217. We note that one of the bases for the Upton court's decision was its perception of the difficulty that courts have had in applying Branti- Elrod and "the failure of the courts to develop and apply a consistent set of principles concerning patronage dismissals." Id. at 1213.
We have not tracked the early development of the Branti- Elrod cases in the Seventh Circuit, but we are satisfied that the decisions of this court have been sufficiently consistent to have clearly established to all state and municipal employers that firing or other adverse employment action for political reasons contravenes the Constitution unless defendants could show that the particular position came within the narrow exception. We see no reason why any reasonable employer would have thought deputy sheriffs, whose work consisted of serving process, transporting prisoners, and guarding courtrooms, could be fired for political reasons.
We also note that, for the purposes of determining whether a right is "clearly established," the court must look to the status of the law at the time of the challenged actions. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816; Lee, 847 F.2d at 71. Thus, the defendants could not have been relying on Upton or Terry because these cases were decided after the plaintiffs were dismissed from their jobs. On the other hand, Jones and Barrett, which held that deputy sheriffs were protected by Branti- Elrod, were decided in 1984 and 1981 respectively, before the incidents that gave rise to this case.
Of course, our conclusion that as a matter of law Roberts is not entitled to qualified immunity does not prevent Roberts and his co-defendants from raising other defenses at trial. See Stoneking, 882 F.2d at 731. They can deny their involvement in the dismissals (the 'I didn't do it' defense referred to above), or they can claim that the dismissals were justified on other grounds. See Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Jones, 727 F.2d at 1335. These issues remain for the trier of fact.
For the foregoing reasons, we hold that it was clearly established by 1986 that Cambria County sheriffs' deputies and paramedics were protected under the First Amendment from patronage dismissals. We will affirm the district court's denial of defendant Joseph Roberts's motion for summary judgment on the grounds of qualified immunity, and dismiss the appeals of the remaining defendants.
Our conclusion that the applicable law was clearly established distinguishes Lee v. Mihalich, 847 F.2d 66 (3d Cir.1988), on which defendants rely. In Lee, we found that the relevant provision of Pennsylvania law was unsettled at the time, and thus the defendants were reasonable in relying on a legal opinion to bring the prosecution for which they were being sued.

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As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],—and as the said States never entered into any war or act of hostility against any Mahometan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
I didn’t learn this in my history classes in high school. I wonder what the Islamophobes will think. Maybe they’ll say it is fake and a lie.
Article 1. There is a firm and perpetual peace and friendship between the United States of America and the Bey and subjects of Tripoli, of Barbary, made by the free consent of both parties, and guarantied by the most potent Dey and Regency of Algiers.
Art. 2. If any goods belonging to any nation with which either of the parties is at war, shall be loaded on board of vessels belonging to the other party, they shall pass free, and no attempt shall be made to take or detain them.
Art. 3. If any citizens , subjects, or effects, belonging to either party, shall be found on board a prize vessel taken from an enemy by the other party, such citizens or subjects shall be set at liberty, and the effects restored to the owners.
Art. 4. Proper passports are to be given to all vessels of both parties, by which they are to be known. And considering the distance between the two countries, eighteen months from the date of this treaty, shall be allowed for procuring such passports. During this interval the other papers, belonging to such vessels, shall be sufficient for their protection.
Art. 5. A citizen or subject of either party having bought a prize vessel, condemned by the other party, or by any other nation, the certificates of condemnation and bill of sale shall be a sufficient passport for such vessel for one year; this being a reasonable time for her to procure a proper passport.
Art. 6. Vessels of either party, putting into the ports of the other, and having need of provisions or other supplies, they shall be furnished at the market price. And if any such vessel shall so put in, from a disaster at sea, and have occasion to repair, she shall be at liberty to land and re-embark her cargo without paying any duties. But in case shall she be compelled to the land her cargo.
Art. 7. Should a vessel of either party be cast on the shore of the other, all proper assistance shall be given to her and her people; no pillage shall be allowed; the property shall remain at the disposition of the owners; and the crew protectedand succored till they can be sent to their country.
Art. 8. If a vessel of either party should be attacked by an enemy, within gun-shot of the forts of the other , she shall be defended as much as possible. If she be in port she shall not be seized on or attacked, when it is in the power of the other party to protect her. And when she proceeds to sea, no enemy shall be allowed to pursue her from the same port, within twenty-four hours after her departure.
Art. 9. The commerce between the United States and Tripoli; the protection to be given to merchants, masters of vessels, and seamen; the reciprocal right of the establishing Consuls in each country; and the privileges, immunities, and jurisdiction, to be on the same footing with those of the most favored nations respectively.
Art. 10. The money and presents demanded by the Bey of Tripoli, as a full and satisfactory consideration on his part, and on the part of his subjects, for this treaty of perpetual peace and friendship, are acknowledged to have been received by him previous to his signing the same, according to a receipt which is hereto annexed, except such as part as is promised, on the part of the United States, to be delivered and paid by them on the arrival of their Consul in Tripoli; of which part a note is likewise hereto annexed. And no pretense of any periodical tribute of further payments is ever to be made by either party.
Art. 12. In case of any dispute, arising from a violation of any of the articles of this treaty, no appeal shall be made to arms; nor shall war be declared on any pretext whatever. But if the Consul, residing at the place where the dispute shall happen, shall not be able to settle the same, an amicable referrence shall be made to the mutual friend of the parties, the Dey of Algiers; the parties hereby engaging to abide by his decision. And he, by virtue of his signature to this treaty, engages for himself and successors to declare the justice of the case, according to the true interpretation of the treaty, and to use all the means in his power to enforce the observance of the same.
GALIL, General of the Troops.
MAHOMET, Commander of the City.
ALLY, Chief of the Divan.
You can see the original document here.

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LiveUniverse v. MySpace: Our litigators achieved a significant victory for MySpace, successfully obtaining the dismissal of antitrust claims brought by LiveUniverse, the owner of a social networking website that had alleged MySpace was unlawfully monopolizing the market for social networking. The case was the first antitrust case ever to address whether a social networking website can prevent its users from posting links to competitors’ webpages on its website. The district court ruled that excluding a competitor’s webpage links from MySpace.com was not anticompetitive and did not cause antitrust injury. The court found that MySpace had no duty to promote its competitors’ websites by displaying active links to those sites. The Ninth Circuit Court of Appeals affirmed the dismissal.
Meredith Corp. v. SESAC: Jenner & Block is currently representing SESAC in a high stakes antitrust suit brought by a putative class of independent television stations. SESAC is a performance rights organization that licenses musical compositions on behalf of affiliated composers and music publishers. The plaintiffs allege that SESAC has violated antitrust laws in the way it licenses musical works for television programming.
Cleveland v. Twentieth Century Fox: Our litigators represented Twentieth Century Fox Entertainment, along with Blockbuster and the videocassette distribution divisions of the six other major Hollywood movie studios, in two antitrust putative class actions, one in the U.S. District Court for the Western District of Texas, San Antonio Division, and the other in the complex panel of the Los Angeles Superior Court. Plaintiffs alleged that the studio defendants agreed among themselves, and separately with Blockbuster, not to offer videocassettes of newly-released motion pictures to independent video retail stores in the United States on the same “revenue sharing” terms on which they offer them to Blockbuster. Plaintiffs alleged that these “discriminatory terms and agreements” caused independent retailers to lose customers and profits to Blockbuster, and brought suit under the Sherman and Cartwright Acts alleging, among other things, price fixing, price discrimination and unfair business practices. Defendants successfully defeated class certification in both venues. Moreover, in the federal action, after a three-week trial, the defendants won their motion for directed verdict, which was upheld on appeal by the Court of Appeals for the Fifth Circuit. In the Los Angeles state court action, defendants won summary judgment, which was upheld in nearly all respects by the California Court of Appeal.
Jim Brown v. Brett Brewer: Jenner & Block represents former officers and directors of Intermix Media, which owned the majority stake in MySpace.com, in a class action alleging breaches of fiduciary duty under Delaware law and violation of Section 14(a) of the Securities Exchange Act of 1934 relating to the sale of Intermix, including MySpace.com. Our team also secured dismissal of other defendants in the action (investment banks), as well as three of the six counts that plaintiff originally brought against the director defendants. The matter was subsequently settled and the settlement is pending approval by the court.
Brad Greenspan v. Intermix Media: Jenner & Block litigators represented the former CEO and COO of Intermix, and other former Intermix directors, in an action brought by Intermix’s largest individual shareholder, Brad Greenspan. Greenspan alleged various breaches of fiduciary duty under Delaware law relating to the sale of Intermix, including MySpace.com, to News Corporation. The case was dismissed at the pleading stage with the California Court of Appeal upholding the dismissal.
Insignia Systems v. News America Marketing: Our litigators represented one of the nation’s largest providers of advertising and promotions in supermarkets and drugstores in connection with various state and federal antitrust and false advertising claims. The multi-million dollar lawsuit was eventually settled during trial.
Doe v. MySpace: Our litigators obtained a closely-watched victory for MySpace in the California Court of Appeal. In 2007, four sets of plaintiffs and their parents sued MySpace for negligence and strict products liability seeking to hold the social networking site liable for damages suffered by their teenage daughters who were sexually assaulted, offline, by men the teens had encountered via Myspace.com. On behalf of MySpace, the team obtained a dismissal of all claims on the grounds that they were barred by Section 230 of the federal Communications Decency Act. The Court of Appeal unanimously affirmed the trial court’s dismissal, and the California Supreme Court denied plaintiffs’ petition for review.
DIRECTV v. Lifetime Entertainment Services: Jenner & Block litigators represented DIRECTV in an action to uphold DIRECTV’s most favored nation rights in connection with DIRECTV’s carriage of television channels Lifetime and Lifetime Movie Network.
DIRECTV v. Paxson Communications: Represented by Jenner & Block litigators, DIRECTV successfully defended against a TRO/preliminary injunction seeking to prevent DIRECTV from taking down Paxson’s channel.
EchoStar Satellite v. DIRECTV: Our litigators successfully represented DIRECTV in an action brought by EchoStar Satellite (owner of Dish Network). EchoStar had sued DIRECTV and GlobeStar (a distributor of Greek-language programming) after GlobeStar ceased licensing its programming to EchoStar, and began distributing its programming through DIRECTV. EchoStar claimed that GlobeStar breached its affiliate agreement with EchoStar and that DIRECTV tortiously interfered with EchoStar’s contractual relations. The court entered summary judgment in favor of DIRECTV, ordering EchoStar to pay DIRECTV’s costs.
UMI v. Exigen: Jenner & Block represents Universal Music Investments in a substantial breach of contract action pending in Delaware state court against Exigen USA. Exigen contracted to develop a music royalty accounting software system for UMI, but failed to deliver a functional system. The complaint seeks damages in excess of $20 million. Cross-motions for summary judgment currently are pending.
News Digital Media Pty v. Adicio: Our litigators successfully represented CareerOne and News Digital Media, operators of Australia’s most popular job search website, when their web hosting company breached its contract and threatened to disrupt the website’s multi-million dollar operation. Within weeks of our team filing for a temporary restraining order and preliminary injunction in the Southern District of California, the defendant web hosting company ceased its breaching conduct and the matter was successfully resolved without any disruption for our clients.

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Defending and defeating class actions and unfair competition claims are critical to today’s businesses. BartkoZankel has successfully defended numerous class actions on behalf of our clients, winning motions to compel individual arbitration and defeating motions for class certification. Our lawyers are also among the few who have tried a class action jury case, obtaining a defense verdict.
As a boutique California law firm, we work strategically with other advisors and groups of clients, often in a leadership role. The internal environment at the Firm is collaborative rather than hierarchical. Unlike large law firms, we do not staff cases with more associates than partners. The Firm is able to pull expertise in antitrust, intellectual property, environmental and products liability disciplines from among our group of talented trial lawyers. We are experts in alternative fee arrangements and utilize such arrangements in a variety of matters.
BartkoZankel has achieved excellent results for its clients in high-stakes matters, including the recovery of over $100 million for investors arising out of a large Ponzi scheme, and a verdict of $108M against a financial services firm that injured two corporations in a merger.
The Firm has an extensive ADR (alternative dispute resolution) practice. We have handled domestic and international arbitrations for many clients, including class action arbitrations. The Firm successfully represented one of the world’s largest retailers in an international arbitration related to expansion of its Asian operations, and are presently seeking $100 million for a large healthcare company in arbitration.
We are often “lawyers’ lawyers”: asked to represent clients, attorneys and law firms in connection with professional responsibility and ethical issues. One of our attorneys recently submitted expert testimony in the High Court in London on the law of breach of fiduciary duty in California.
(ND Cal). Defended vendor of HVAC equipment in 8‑year old antitrust monopolization and conspiracy case. Case tried to jury verdict October 28, 2010 following 7.5‑week trial where plaintiffs requested $34 million in damages before trebling and attorneys' fees. Jury in 3 hours returned total defense verdict.
(ND Cal). Firm attorney defended antitrust claims and filed counter-claims under the Computer Fraud and Abuse Act (CFAA). Obtained summary judgment in client’s favor, which found that plaintiff had violated CFAA as a matter of law, and successfully settled antitrust action. Case reported at 725 F. Supp. 887.
(ND Cal). Defense of Hynix executive in criminal antitrust price‑fixing case in the dynamic random access memory (DRAM) industry. Over 19 million documents were reviewed and databased. All other corporate and individual defendants pleaded guilty and the U.S. Department of Justice collected $732M in fines and penalties. After a month‑long trial, the jury was deadlocked at 10‑2 in favor of acquittal. The Department of Justice dismissed the case.
Grafton Partners v. PricewaterhouseCoopers, et al.
(Alameda Sup Ct). Prosecution for investor class victimized by a Ponzi scheme. Working with the SEC and its receiver and a bankruptcy trustee, we crafted litigation strategies to sue deep pocket parties who had enabled the scheme to go forward. We recovered in excess of $100 million in settlements for the class from a major California bank, an international accounting firm, and several law firms. The case generated several Court of Appeal and California Supreme Court opinions, including at 36 Cal.4th 944.
In re: Static Random Access Memory (SRAM) Antitrust Litigation.
(ND Cal). Firm attorney led multi-client and multi-law-firm joint-defense team tasked with opposing class certification for all defendants in antitrust indirect purchaser action, and obtained preclusive sanctions against plaintiffs for spoliation of evidence and the failure to disclose to defendants data and information considered by plaintiff’s experts in formulating their opinions in support of class certification.
Gold Fields, Ltd. v. Harmony Gold Mining Company, Ltd.
(SDNY). Provided strategic advice to South African mining company in connection with highly publicized hostile take‑over bid. Matter involved assistance in valuation of client in light of various misrepresentations.
United States of America v. Pfizer, Inc.
(ND Cal). Defense counsel in criminal price‑fixing case relating to sodium gluconate, an organic chemical used as an industrial cleaning agent. Case ended with plea bargain. Prior thereto, there was significant analysis of market share and projected sales and profits. Case was followed by private antitrust cases.
United States of America v. Charles Wong, et al.
(ND Cal). Civil and criminal action related to alleged misrepresentations in shipping contracts to Hong Kong and mainland China. Extensive depositions taken in Hong Kong.
Agrical, Inc. v. Deloitte & Touche, et al.
(Fresno Sup Ct). Represented international law firm regarding international investments brought against legal, banking and accounting firms. International discovery and requests for judicial assistance involved Italian, Swiss, and Liechtenstein hearings and entities.
SEC investigation related to sufficiency of risk disclosure to shareholders preceding a 1993 write down of $460 million in company’s $2.1 billion real estate portfolio, resulting in corporate securities consent decree. Firm represented director of related real estate company.
United States of America v. Sarno, et al.
(CD Cal). Federal investigation and criminal trial regarding false statements to federally insured bank for $15 million financing of real estate project involving materiality of pro‑forma statements, bank complicity, and good faith reliance on accounting professionals’ advice under GAAP.
(D Alaska). Antitrust action for plaintiff partner in North America’s largest gold mine against joint venture partner that was preventing our client from independently selling its interest. Case filed under seal as unique procedure to cause immediate settlement that allowed client to sell its stake to a major gold producer for $80 million.
United States v. Thomas Modisette and MacFarms International, Inc.
Criminal investigation by DOJ (Antitrust Division) in alleged criminal conspiracy to fix the price of agricultural products (macadamia nuts). After extensive submissions by counsel, including offers of proof and witness interviews, the government abandoned the investigation.
(Santa Clara Sup Ct). Represented electronics company founder against Japanese shareholders in breach of fiduciary duty case that required extensive foreign discovery, including multiple depositions in Tokyo and Osaka U.S. embassy/consulate as well as compelled third‑party testimony in Japanese courts.
(Sacramento Sup Ct and Third Dist Ct of Appeal). Represented Sutter Health in defense of 12 coordinated class actions against medical foundation and affiliates for alleged violation of medical information privacy statute. Obtained writ directing trial court to dismiss the case. Case reported at 227 Cal.App.4th 1546.
(SF Sup Ct and ED Ohio). Represented current owners of San Francisco 49ers football team against co-owner, alleging co-owner and affiliated companies breached fiduciary duties and seeking $100 million in damages and control of the team. Strategy led to negotiated settlement and division of assets.
(ND Cal and 9th Cir). Professional negligence jury verdict and judgment of $108 million against investment banking firm Bear Stearns, reduced by the trial judge to $36 million. The opinion on the appeal before trial is a leading authority nationally on the existence of fiduciary duty between a corporation and its expert advisors, 97 F.3d 1171.
(SF Sup Ct). Represented California affiliates of national finance company in defending representative B&P Code section 17200 action construing installment and payday loans in California.
(SD Cal). Represented world’s largest retailer in defense of national class action.
(ND Cal; 9th Cir). Defeated class certification motion in connection with California class action by janitorial franchisees for alleged violation of wage and hour laws.
Pokorny v. Quixtar, et al.
(ND Cal). Represented major Quixtar/Amway distributors and principals in national RICO class action alleging illegality of Quixtar business model. Successful settlement and full release obtained for clients with no monetary contribution.

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The power of promoting the interests of society as a whole by limiting the freedom of an individual to act or use his property at will. In particular, the constitutional power available to a sovereign authority to legislate so as to impair the use or value of private property for the benefit of the public at large. The right of a government, especially of a state, to restrict, regulate and control the individual’s free use of land and buildings by law and precept—as by taxation, public health and building regulations, zoning ordinances, and pollution or environmental controls and, in some jurisdictions, rent control. A power that may be exercised, without compensation, provided it is intended for the public good; is not aimed to affect only one individual or only one parcel of land; is not clearly arbitrary and unreasonable; and has a reasonable relation to the public health, safety, morals, peace and quiet or general welfare (Commonwealth v. Alger, 7 Cush 53 (Mass 1851); Hadacheck v. Sebastian, 239 US 394, 36 S Ct 143, 410–11, 60 L Ed 348, 356 (1915); Village of Euclid v. Amber Realty Co., 272 US 365, 47 S Ct 114, 71 L Ed 303, 314 (1926); Berman v. Parker, 348 US 26, 75 S Ct 98, 99 L Ed 27, 37—Anno: Federal Police Power (1954)).
‘Police power’ is based on the maxim sic utere tuo et alienum non lædas, ‘so use your own property as not to injure another’s’; and has developed into the power of the state to limit the unhindered use of land—"the powers of government inherent in every sovereignty to the extent of its dominions. … the power to govern men and things within the limits of its dominion" License Cases, 5 Howard 504, 46 US 504, 581, 12 L Ed 256, 291 (1847) (American Federation of Labor v. American Sash & Door Co., 67 Ariz 20, 189 P.2d 912, 916, 6 ALR2d 481 (1948); 16A Am.Jur.2d., Constitutional Law, § 361). The principle of ‘police power’, although of Anglo–Saxon derivation, may be applied to the regulation of any developed civilization. However, in the US, the term is more generally used to refer to the authority conferred on the individual states by the Tenth Amendment to the Constitution and, in turn, delegated to local governments, through which the states are enabled to regulate the activity of the individual, in particular in his or her use of property. This ‘police power’, which may be used to control and regulate the use of land, may be distinguished from eminent domain, for the latter involves "the ‘taking’ of property because of its need for public use while the former involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest. The police power may be loosely described as the power of the sovereign to prevent persons under its jurisdiction from conducting themselves or using their property to the detriment of the general welfare" 1 Nichols on Eminent Domain (Rev. 3rd ed.), § 1.42. On the other hand, if the exercise of police power goes so far as to totally impede the proper or beneficial use of land, or if it amounts to a restriction not truly related to the regulation the development, then it may amount to a ‘taking’ and, therefore, require the payment of just compensation to the landowner (Pennsylvania Coal Co. v. Mahon, 260 US 393, 416, 43 S Ct 158, 67 L Ed 322, 28 ALR 1321 (1922); Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed.2d 304, 323 (1994); Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1074–6 (11th Cir. Fla 1966)). cf. inverse condemnation. See also aesthetic, building controls, bundle of rights theory, condemnation, escheat, ordinance.
16A Am.Jur.2d., Constitutional Law, §§ 360–438.
101A Cor.Jur.Sec., Zoning & Land Planning, §§ 20–28.
5B Powell on Real Property, Ch. 79 "Police Power".
B.W. Blaesser and A.C. Weinstein. Land Use and the Constitution (1989).
R.A. Cunningham et al. The Law of Real Property (2d ed. 1993), § 9.2 "The Police Power, Due Process, and the ‘Taking’ Issue".
R.R. Wright and M. Gitelman. Land Use: Cases and Materials (5th ed. 1997), Ch. V "Property Rights, Police Power, and Taking".
J. Metzenbaum. The Law of Zoning, Ch. 5 (1930), "The Police Power".
Rathkopf’s Law of Zoning and Planning, Ch. 1 "Background of Police Power and Zoning Regulation.
1 Williams American Land Planning Law (1988 Revision), §§ 7.01–7.05, 8.01–8.03.
E.C. Yokley. Zoning Law and Practice (4th ed. 1978), Ch. 3 "Police Power".


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insurance companies are permitted to use the absolute pollution exclusion in Kentucky ... Motorists Mut. Ins. Co. v. RSJ, Inc.,. 926 S.w.2d 679, 680-81 (Ky. Ct. app. .... Harleysville Ins. Co., 632 a.2d 939, 941-942 (1993). ..... Liberty Mutual Ins . Co., 187 w. ... For many years Joy technologies Inc. (“Joy”), a Pennsylvania com -.
... Inc. v. Harleysville Insurance Company of New York ..... Falzone, Carmen I. Vs. NY Central Mutual Fire Insurance Co. ... Brighter Choice Charter School; Henry Johnson Charter School; Kipp-Tech Valley. ...... Aurora Loan Services, LLC v.
Apr 11, 2019 ... Company, Inc. v. Darius Masonry,. Inc (S). 16/02535 Pylarinos v. ..... Insurance Company of America .... New York Central Mutual Fire .... Water Technologies, Inc. (Q) ..... 25596/09 Aurora Loan Services LLC v. .... Harleysville.

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Good evening and thank you for inviting me to Charlottesville to discuss remedies under section 2 of the Sherman Act.(1) While I have said many times that section 2 in general presents some of the most challenging issues in competition law today, the specific subject of remedies is in many ways the most challenging of these issues. As I was considering how best to convey some of those challenges, I decided it would be useful to think about tigers.
Tigers, as you no doubt know, are majestic animals with a combination of strength, speed, and beauty that makes them a match for any lion in my book. They are in some respects similar to large, powerful companies that have come to dominate a particular market or set of markets. I will use my time tonight to explain how this is so by addressing ten interrelated issues.
Thus, we generally want businesses to compete vigorously. But competition is not for the faint of heart. Judge Easterbrook has discussed this destructive aspect of competition many times in his writing on section 2. As he explains with Joseph Schumpeter's famous metaphor, "competition is a gale of creative destruction . . . and it is through the process of weeding out the weakest firms that the economy as a whole receives the greatest boost. Antitrust law and bankruptcy law go hand in hand."(3) Or to use my metaphor, it is in the nature of successful firms, like tigers, to pounce and devour, and to deprive other hunters of their prey. I prefer to watch tigers and successful firms — even dominant firms — from a safe distance and without interfering with their natural activities, confident that any harm they visit on competitors will — in general — redound to society's benefit.
I said "in general" because exceptions exist. Dominant firms also resemble tigers in that powerful animals can inflict great damage that sometimes should be prevented. Economic theory provides a sound basis for believing that firms can injure the competitive process by acquiring or maintaining monopoly power through anticompetitive means. And so we should seek to identify when and how government intervention is justified and will prove beneficial.
This leads me to my second point. Even though circumstances exist where catching a tiger is warranted, it doesn't mean that you should sign up for the safari without careful preparation. As I describe more fully below, catching a tiger is itself a dangerous endeavor, and good results from catching one are unlikely unless you have thought carefully before grabbing its tail.
Put another way, a bad section 2 remedy risks hurting consumers and competition and thus is worse than no remedy at all. That is why it is important to consider remedies at the outset, before deciding whether a tiger needs catching. Doing so has a number of benefits.
As an initial matter, having found a section 2 violation, you want to craft an effective remedy. It is not easy to craft what is typically a behavioral remedy that will achieve its desired objectives, avoid unintended harm, and be administrable. Thus, the remedy issue warrants careful thought up front.
Even in circumstances where competitive harm theoretically could occur, the difficulty of designing a proper remedy may reveal that antitrust litigation cannot effectively remedy that harm. Since the Sherman Act's enactment in 1890, certain kinds of conduct appearing to harm competition have proven themselves beyond the limits of effective antitrust control.
In sum, it is critical to think hard about what you are going to do with the tiger before you grab its tail. If you cannot do something constructive, you should consider not grabbing it in the first place. And in any event, it is not the best time to determine what to do with the tiger while holding on to its tail.
The thirdpoint relates to the modern view of ecology, where one is advised to care not about individual animals but about the health of species and ecosystems as a whole. Economics and antitrust take a similar approach: when designing a section 2 remedy, it is important always to keep in mind that the goal of catching the tiger is to protect competition, not competitors. That phrase comes, of course, from the Supreme Court's Brown Shoe decision, which concerned a merger challenged under section 7 of the Clayton Act.(15) But it is particularly apt in the section 2 context as well, where it is essential to distinguish between a remedy's impact on a section 2 violator's competitors and the remedy's impact on competition as a whole.
My fourthpoint is that section 2 remedies should not crush a tiger's spirit; they should teach, not tame. Among other things, this means that equitable remedies should not interfere with the defendant's innovation incentives going forward. Today, it's widely understood that innovation is the greatest contributor to increasing welfare.(17) Future innovation is not less beneficial when it comes from a firm that has violated section 2 in the past. Simply put, a remedy hurts consumers when it deters firms that violated the law in the past from engaging in lawful, efficient, innovative conduct in the future.
Just as importantly, section 2 remedies also should not diminish the innovation incentives of firms competing with a section 2 violator. In Trinko, the Supreme Court accurately observed that forced-sharing obligations "may lessen the incentive" for rivals to invest in "economically beneficial facilities."(18) That observation does not merely apply in the refusal-to-deal context--no section 2 remedy should chill the incentives of industry participants to innovate.
In teaching the tiger, it's also important to consider the appropriate scope of remedy for a particular transgression. A finding that section 2 has been violated does not open the door to wholesale restructuring of a market. Instead, the remedy needs to be tied closely to the anticompetitive conduct occasioning it. That means that remedies need to be sufficient but not overbroad, proportional to the offense. Implementing a remedy that is too broad runs the risk of distorting markets, impairing competition, and prohibiting perfectly legal and efficient conduct.
Put another way, unless you have established that the tiger should never have existed in the first instance, you have not established a basis for shooting it.
My sixthissue is the need to balance specificity and flexibility when designing equitable remedies. An ideal remedial decree allows the defendant readily to understand its obligations and the supervising court to determine quickly whether its terms are being met. This consideration calls for decrees to be specific and detailed. But such specificity may reduce the efficacy of a decree and even lead to unintended harm as markets evolve over time.
The importance of flexibility in any particular case is obviously tied to the duration of the decree. Long decrees risk becoming obsolete, with the unintended effect of potentially stifling a firm's ability to compete efficiently. The Division, for example, recently consented to termination of an old decree that appeared to be preventing the defendant from introducing a beneficial new product.(23) In recent decades, the Division's policy on decree terms has avoided the perpetual decrees that were sometimes sought in the past. Nevertheless, the length of the decree remains an important consideration when balancing specificity and flexibility.
The seventh issue I would like to raise concerns the many ways to skin a cat--or, in this case, the range of ways to teach a tiger. Equitable remedies in section 2 cases run along a spectrum. Prohibitory remedies typically seek to prohibit the conduct that was found unlawful, whether it be a contractual provision like an exclusivity clause or some other specific form of conduct found to be exclusionary. Where necessary or appropriate, prohibitory remedies may also entail fencing-in provisions prohibiting not only the specific conduct found to be unlawful but also other, related conduct.
When they are based on clear and objective criteria, prohibitory remedies confined to stopping and preventing the recurrence of the unlawful conduct are likely to be the most desirable in the section 2 context. They are relatively unlikely to be overbroad, create unnecessary inefficiency, or lead to high administrative costs because directing and determining compliance is more likely to be relatively straightforward. An example of this sort of targeted prohibitory remedy is the prohibition against per-processor licensing obtained through the Division's mid-1990s action against Microsoft.(24) That is not to say that administrative costs are never an issue with prohibition remedies. One need look no further than the litigation surrounding the line-of-business restrictions in the AT&T decree.
Prohibitory remedies are one of the two prominent kinds of conduct remedies in the section 2 context. Remedies imposing affirmative obligations are the other. When extensive changes have occurred in the affected market, it may be difficult or even impossible to reestablish an opportunity for competition simply by barring the specific exclusionary practices or other, similar conduct. In those situations, a conduct remedy requiring affirmative steps may be necessary to reestablish the opportunity for competition.
While affirmative-obligation remedies potentially can be effective, they can, among other things, raise significant administrability concerns. As the Supreme Court noted in Trinko, they force courts into "a role for which they are ill suited."(25) At the design stage, an access remedy typically requires specifying the nature of access, prices, and other terms of dealing. Specifying these matters in an efficient manner may prove difficult. Furthermore, access remedies can require extensive continuing oversight and adjustment to changing market conditions. In some circumstances, they may require decisions of a type traditionally vested in regulatory agencies with resources or attributes better suited for such determinations.
The Division's experience with affirmative obligations in our Microsoft case well illustrates the issue. I give great credit to those at the Division for a job that was exceptionally well done in crafting the remedy. Nonetheless, the decree has been time and resource intensive for the Division, the parties, and the court.
Thus, although affirmative-obligation remedies can play an important role in remedying section 2 violations, they must carefully balance the short-run benefits they bring to consumers with the considerable costs and inefficiencies they may engender. These concerns suggest that affirmative-obligation remedies are most likely to be suitable when ongoing regulation can be minimized and market forces quickly can be restored.
The last section 2 equitable remedy that I will discuss is the one that the Supreme Court has recognized as the "most drastic."(27) I'm talking, of course, about structural remedies, which require a violator to divest certain assets or even dissolve. Structural remedies can restore competitive conditions by reducing the defendant's market power, thereby providing existing or potential rivals the opportunity to compete effectively, or by constructing entirely new competitors.
In the merger context, the Antitrust Division generally prefers structural remedies over conduct remedies because, in the words of our Policy Guide to Merger Remedies, structural remedies are "relatively clean and certain, and generally avoid costly government entanglement in the market."(28) Because the parties to a merger either have not yet or have only recently merged, clear demarcations between entities and units generally still exist, facilitating a structural solution.
These advantages are generally absent in the section 2 context, especially where the firm in question has not grown through acquisitions. That greatly heightens the risk that a section 2 structural remedy will create market inefficiencies. And just as the problems of dividing a company into parts present challenges for a court, the separate entities created by divestiture may face challenges post-breakup due to a lack of personnel, organization, or information necessary to compete. Those challenges may be particularly likely in technologically dynamic markets.
Moreover, what structural remedies may gain in reduction of long-term administrative burdens, they may lose in imposition of short-run costs. Divestiture presents acute, up-front administrability challenges, forcing a court unfamiliar with a market's details to decide specialized questions involving, for example, an intellectual property portfolio or assessing the roles of different employees or groups of employees.
Thus, while structural remedies are an important part of the government's remedial arsenal, they should be used sparingly in the section 2 context and only where the violation has a clear, significant causal connection to the acquisition or maintenance of monopoly power, and even then only after determining that alternative remedies would not satisfactorily achieve the proper goals of a section 2 remedy.
To sum up, clear prohibitions based on objective standards are the easiest way to teach and, if properly crafted, least inhibiting to the tiger. Trying to make the tiger affirmatively sit or jump through a hoop is much harder, and drawing and quartering the tiger is rarely justified.
My eighth and related point tonight is that the care and feeding of the tiger after it is caught should be carefully considered. For reasons I have just mentioned, when formulating remedies, one should take into account the costs of food, monitoring the tiger, maintenance of any barriers, vet services, and the like. The effectiveness of a remedial solution depends in large part on how easily it can be administered or enforced. It is important to remember that a remedy's costs are paid by businesses and consumers, not just the government. Judicial oversight risks lowering affected businesses' efficiency and diminishing their innovation. Complex and relatively burdensome decrees may be warranted in some circumstances, such as those presented in the Division's Microsoft case; at the extreme, however, a remedy may be so difficult or expensive to administer that it is unlikely to provide significant net benefits to consumers.
My ninthpoint concerns making the tiger pay for its illegal conduct. I only have time briefly to mention two areas that, in my view, warrant further consideration and that are therefore particularly appropriate to raise in this academic setting. The first concerns the trebling of antitrust damages and, in particular, whether it is appropriate in the context of section 2, where offending conduct is, typically, not concealed and where it is often difficult to distinguish lawful from unlawful conduct. The second concerns the ability of an enforcement agency to collect civil fines for section 2 violations. The Division has not sought authority to impose civil fines and we have some reservations about such authority, but it is certainly a topic worthy of discussion.
10.	Who Else Is Hunting for the Tiger?
My final point tonight is that it is worth asking whether anyone else is trying to catch the tiger. Congress has established an overall antitrust regime in which private plaintiffs as well as others have the right to bring section 2 claims in addition to the federal government.(29) Thus, in addressing questions such as whether civil fines should be available for government section 2 cases, it is relevant to consider the complete picture. As one example, I do not have precise figures, but public reports indicate that Microsoft has paid billions of dollars to resolve private litigation involving claims that followed on from the Division's case.
Thank you for the opportunity to speak tonight.
1. I thank Joseph Matelis for his help in preparing these remarks.
2. N. Pac. Ry. v. United States, 356 U.S. 1, 4 (1958).
3. Frank H. Easterbrook, When Is It Worthwhile to Use Courts to Search for Exclusionary Conduct?, 2003 Colum. Bus. L. Rev. 345, 34546; see also Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1, 5 (1984). See generally Joseph A. Schumpeter, Capitalism, Socialism and Democracy 87 (Harper Perennial 1976) (1942).
4. Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 267 (7th Cir. 1984).
5. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 490 (1977).
7. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 598 n.23 (1985).
8. See generally Dennis W. Carlton, A General Analysis of Exclusionary Conduct and Refusal to Deal--Why Aspen and Kodak Are Misguided, 68 Antitrust L.J. 659, 662 (2001) (maintaining that "the only outcome to expect from court intervention" in situations like Aspen Skiing "is inefficiency").
9. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 414 (2004).
10. Id. at 415 (quoting Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L.J. 841, 853 (1990)).
12. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 223 (1993).
14. United States, Organisation for Econ. Co-operation & Dev., Roundtable on Bundled and Loyalty Discounts and Rebates (2008).
15. See Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962).
16. This point is crucial to any meaningful evaluation of the effectiveness of a remedy. The effectiveness of a remedy does not properly depend only on the health and well-being of individual competitors.
17. I discussed this issue in greater detail in previous remarks. See, e.g., Thomas O. Barnett, Assistant Attorney Gen., U.S. Dep't of Justice, Maximizing Welfare Through Technological Innovation (Oct. 31, 2007), available at http://www.usdoj.gov/atr/public/speeches/227291.pdf.
18. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004).
19. United States v. Microsoft Corp., 253 F.3d 34, 10304 (D.C. Cir. 2001) (en banc) (per curiam).
21. Id. When the D.C. Circuit revisited this issue when reviewing the non-structural relief later obtained by the Division, its assessment was "Well done!" Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1210 (D.C. Cir. 2004) (en banc).
22. Microsoft Corp., supra n.19, at 80.
23. Order Terminating Final Judgment, United States v. Allied Chem. & Dye Corp., No. 41-320 (S.D.N.Y. Aug. 8, 2007).
24. See United States v. Microsoft Corp., 56 F.3d 1448, 1452 (D.C. Cir. 1995).
25. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004).
27. United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 326 (1961).
28. See Antitrust Div., U.S. Dep't of Justice, Antitrust Division Policy Guide to Merger Remedies 7 (2004), available at http://www.usdoj.gov/atr/public/guidelines/205108.pdf.
29. See generally William F. Baxter, Separation of Powers, Prosecutorial Discretion, and the "Common Law" Nature of Antitrust Law, 60 Tex. L. Rev. 661, 690 (1982).

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Entitlement to a rating in excess of 70 percent for anxiety disorder.
The appellant is a Veteran who served on active duty from November 1993 to May 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for anxiety disorder. In July 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In October 2015, this matter was remanded by the Board for additional development. A March 2017 increased the rating to 70 percent, throughout (from February 2012).
The Board’s October 2015 decision also noted that the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) was raised by the record and directed the RO to develop and adjudicate such claim. A March 2017 rating decision granted TDIU, effective October 2012, resolving the matter.
At no time under consideration are symptoms of the Veteran’s service connected psychiatric disability shown to have resulted in total occupational and social impairment.
A scheduler rating in excess of 70 percent for anxiety disorder is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § § 4.130, Diagnostic Code (Code) 9413 (2017).
The VCAA, in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA’s duty to notify was satisfied by a letter in March 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
The Veteran’s VA and private medical records have been secured. He was afforded VA examinations to assess the severity of his psychiatric disability. VA’s duty to assist is met.
In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. 3.103(c)(2) requires a VLJ who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the July 2015 hearing, the undersigned identified the issue, and advised the Veteran of what is needed to substantiate his claim. A hearing notice deficiency is not alleged.
The Board also finds that there has been substantial compliance with the October 2015 Board remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
On April 2012 VA psychiatric examination, the Veteran stated that he had four to twenty episodes of anxiety daily. He said that he was constantly on edge and experienced sleep disturbances. Examination found that he had anxiety. There was no evidence of depressed mood; suspiciousness; panic attacks; memory loss’ flattened affect’ impaired judgment; disturbance of mood and motivation; gross impairment of thought process; suicidal ideation; obsessional rituals; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance or hygiene; or disorientation to time or place. The diagnoses were anxiety disorder, not otherwise specified and rule out substance induced anxiety disorder. The Global Assessment of Functioning (GAF) score was 65. The examiner stated that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.
VA outpatient treatment records show that in November 2012, the Veteran was noted to be well-groomed. Mood was euthymic and affect was congruent to mood. Thought process and thought content were logical and goal-directed. There was no suicidal or homicidal ideation. He denied audio or visual hallucinations. No delusions were elicited, and there was no paranoia. The assessment was opioid dependence. In February 2013, he was appropriately groomed. He was oriented times three. Thought process and content were logical, coherent and relevant. His mood was restricted. His insight was poor; his judgment was intact. He became tearful when describing the shame he felt regarding his family, legal and financial issues. There was no psychomotor retardation. The examiner stated that his agitation might be related to substance withdrawal. No unusual perceptual experiences were reported or observed. In February 2014, the Veteran’s hygiene was noted to be fair. His mood was euthymic and affect was congruent to mood. Thought process was logical and goal-directed. There was no looseness of association, or flight of ideas or reference. He denied suicidal or homicidal ideation. No delusions were elicited, and there was no paranoia. There were no audio and visual hallucinations. His insight and judgment were fair, as was impulse control. He denied suicidal ideation. In May 2014, he was described as alert, cooperative and well-oriented to person, place, situation and time. His mood was appropriate to the topic of conversation and affect was congruent. His hygiene was adequate. Thought process was linear, organized and goal-directed. Insight and judgment appeared to be intact. There was no evidence the Veteran was responding to internal stimuli. There were no overt delusions in his expressed thoughts. No suicidal or homicidal ideation was noted. The assessment was opioid use disorder.
On November 2015 examination by J. Atkinson, Jr., a private psychologist, it was noted that the Veteran was not on “mental health” medication. The Veteran stated that he got along well with his girlfriend until they were out in public when he began “stressing out.” He reported he had worked at the Post Office until two years prior (and that he had minor disagreements there). The examiner stated that the Veteran had a very low tolerance for stress and reacted with anxiety and withdrawal. Mental status evaluation found that the Veteran was irritable and passive-aggressive. His concentration was fair and attention span was short. Psychomotor activity was increased. His ability to abstract was mildly impaired. Affect was within normal limits. The Veteran stated that his mood was good if he was by himself, but aggravated when not by himself. He had a number of avoidant personality traits. He said he was depressed most of the week and felt worthless. He denied suicidal ideation. His energy level was low. He reported feelings of agitation and psychomotor pressure due to frustration. He had difficulty when in crowds or among other people because he felt they were judging him critically. He displayed a number of avoidant personality traits, which was a form of widespread social phobia. He denied obsessive thoughts. He had some diffuse paranoid thoughts. He denied hallucinations or delusions. He was well oriented to time, place and person. His memory was broadly intact. He reported nightmares. The diagnoses were adjustment disorder with anxiety and depressed mood, to include chronic anger state disorder, and mixed anxiety with elements of generalized anxiety disorder, panic disorder and obsessive-compulsive disorder. The examiner opined that the Veteran’s [psychiatric] impairment was moderate to severe.
J. Atkinson, Jr. completed the Veteran’s disability benefits questionnaire (DBQ) in November 2015, and indicated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His symptoms included depression, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, and impaired abstract thinking. There was no evidence of suicidal ideation; difficulty in establishing and maintaining effective work and social relationships; obsessional rituals; impaired impulse control; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance and hygiene; or disorientation to time or place. The diagnosis was adjustment disorder with anxiety.
On September 2016 VA psychiatric examination, the Veteran stated that he stayed at home and did not go out because he could not deal with people. He had regular contact with his parents and lived with his girlfriend. He said that he was depressed all the time and was often irritable. He stated that he slept approximately three hours per night. His symptoms included depressed mood, anxiety and chronic sleep impairment. His appearance was appropriate. He was alert and oriented in all spheres. Psychomotor activity was unremarkable. Thought process and thought content were unremarkable. There was no suicidal or homicidal ideation or perceptual abnormalities. His mood was depressed and affect was appropriate. Insight and judgment were adequate. The diagnoses were opioid use disorder, alcohol use disorder and unspecified anxiety disorder. The examiner stated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
This analysis is undertaken considering the possibility that different ratings may be warranted for different time periods, based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007).
A 100 percent rating is warranted for anxiety disorder with total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.
In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It was noted the regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular symptoms.
One factor which may be considered is the GAF score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. A score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job). See DSM-IV. [Revised VA regulations have incorporated use of DSM-V (which does not provide for use of the GAF scale to identify degree of mental impairment). Inasmuch as this appeal arose prior to such revision, consideration of the GAF scores assigned is not inappropriate.].
At no time is the Veteran’s service connected psychiatric disability shown to have been manifested by symptoms productive of total occupational and social impairment (so as to warrant a 100 percent schedular rating). VA psychiatric examinations in April 2012 and September 2016, as well as the reports by the Veteran’s private psychologist, do not show that he has total occupational and social impairment. While he expressed some paranoid thoughts and was noted to have near continuous panic in November 2015, there was no evidence of delusions or hallucinations, or suicidal ideation and he was fully oriented. VA outpatient treatment records, and VA and private examinations do not show gross impairment of thought processes, delusions or hallucinations, inappropriate behavior or lack of orientation. The record reflects that he tends on his own to activities of daily living (and neglect of hygiene or personal appearance has not been noted); lives with a girlfriend (suggesting ability to maintain personal relationships; and has maintained relations with his parents. Notably, the Veteran’s own private psychologist, noting that he is not on any psychiatric medication, has opined that he has occupational and social impairment with deficiencies in most areas (i.e., less than total impairment), which is consistent with the 70 percent rating assigned.
On the most recent VA psychiatric examination, the examiner opined that the Veteran’s anxiety disorder results in occasional decrease in work efficiency (which certainly does not support a finding of total impairment). And when GAF scores were being used, the score assigned for the Veteran’s psychiatric disability (in April 2012) was 65, reflecting only mild disability. Total occupational and social impairment due to psychiatric symptoms is simply not shown, and a schedular 100 percent rating for the Veteran’s service-connected psychiatric disability is not warranted for any period of time under consideration.
A rating in excess of 70 percent for anxiety disorder is denied.