The Pennsylvania Steel Products Procurement Act,73 Pa. Cons. Stat. 1881-1887, prohibits the use of temporary bridges made out of foreignsteel on public works projects. The district court rejected a claim that the law was preempted by the Buy America Act, 23 U.S.C. 313, and that it violated the Commerce Clause, Contract Clause, and Equal Protection Clause. The Third Circuit affirmed. The federal Act contemplates more restrictive state laws. The state law was authorized by Congress, is rational, and did not, at its enactment, impair plaintiff's existing contracts. View "Mabey Bridge & Shore, Inc. v. Schoch" on Justia Law
Posted in: Constitutional Law, Construction Law, Government Contracts, International Trade, U.S. 3rd Circuit Court of Appeals
Plaintiffs alleged that De Beers coordinated worldwide sales of diamonds by executing agreements with competitors, setting production limits, restricting resale within regions, and directing marketing, and was able to control quantity and prices by regimenting sales to preferred wholesalers. Plaintiffs claimed violations of antitrust, consumer protection, and unjust enrichment laws, and unfair business practices and false advertising. De Beers initially refused to appear, asserting lack of personal jurisdiction, but entered into a settlement with indirect purchasers that included a stipulated injunction. De Beers agreed to jurisdiction for the purpose of fulfilling terms of the settlement and enforcement of the injunction. The district court entered an order, approving the settlement and certifying a class of Indirect Purchasers in order to distribute the settlement fund and enforce the injunction. De Beers then entered into an agreement with direct purchasers that paralleled the Indirect Purchaser Settlement. The Third Circuit remanded the certification of two nationwide settlement classes as inconsistent with the predominance inquiry mandated by FRCP 23(b)(3), but, on rehearing, vacated its order. The court then affirmed the class certifications, rejecting a claim that the court was required to ensure that each class member possesses a colorable legal claim. The settlement was fair, reasonable, and adequate. View "Sullivan v. DB Inv., Inc." on Justia Law
Posted in: Antitrust & Trade Regulation, Business Law, Class Action, Consumer Law, International Trade, U.S. 3rd Circuit Court of Appeals
Plaintiffs, domestic purchasers of magnesite, alleged that defendants, Chinese exporters, engaged in a conspiracy to fix the price of magnesite in violation of the Clayton Act, 15 U.S.C. 4, 16, predicated on alleged violation of the Sherman Act, 15 U.S.C. 1. The district court dismissed, holding that it lacked subject matter jurisdiction under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a. The Third Circuit vacated. FTAIA states that the Sherman Act "shall not apply to conduct involving trade or commerce . . . with foreign nations" with two exceptions. The Sherman Act does apply if defendants were involved in "import trade or import commerce" or if defendants' "conduct has a direct, substantial, and reasonably foreseeable effect" on domestic commerce, import commerce, or certain export commerce and that conduct "gives rise" to a Sherman Act claim. FTAIA imposes a substantive merits limitation, not a jurisdictional bar. On remand, if the court addresses the "import trade" exception, it must assess whether plaintiffs adequately allege that defendants' conduct is directed at a U.S. import market and not solely whether defendants physically imported goods. If the court assesses the "effects exception" it must determine whether the alleged domestic effect would have been evident to a reasonable person making practical business judgments. View "Animal Science Prods. Inc. v. China Minmetals Corp." on Justia Law
Posted in: Antitrust & Trade Regulation, International Law, International Trade, U.S. 3rd Circuit Court of Appeals
The company wished to use cash reserves from subsidiaries in Ireland for activities such as stock repurchase. Foreign income is not taxable in the U.S. when earned, but is taxed if invested in U.S. property, 26 U.S.C. 951-965, including debt obligations of U.S. companies. To obtain use of the funds, the company entered into a 20-year interest rate swap. The IRS notice then in effect provided that, upon sale of one "leg" of a swap, the lump sum exchanged for the right to receive revenues over the remaining life of the swap, should not be recognized as income all at once, but should be accounted for over the life of the swap. Parties are now required to treat all such payments as loans. In 2004, the IRS assessed deficiencies of $472,870,042, characterizing the transactions as immediately-taxable loans, not sales. The district court agreed. The Third Circuit affirmed. The former notice did not apply because the transactions were loans. The parties structured the transactions expecting to recover principal; involvement of a third-party bank did not preclude characterization as a loan. Disparate treatment is not ordinarily considered a defense to tax liability. View "Merck & Co, Inc. v. United States" on Justia Law
After first filing claims in a U.S. district court, inhabitants of eastern Ecuador filed suit in their country, alleging that the company contaminated the area and caused residents' health problems. The company, attempting to establish fraud and collusion in the proceedings, sought discovery from the plaintiffs' attorney for use in that litigation, in criminal proceedings in Ecuador, and in arbitration initiated against the Republic of Ecuador with the United Nations. The district court granted discovery under 28 U.S.C. 1782, which provides that the court of the district in which a person is found may order him to give testimony or to produce a document or thing for use in a proceeding in a foreign tribunal, unless the disclosure would violate a legal privilege. The court concluded that attorney-client privilege had been waived because documentary film-makers had been allowed intimate access to proceedings involving the environmental litigation. The Third Circuit reversed in part, holding that the public disclosure of certain communications did not lead to "subject matter waiver" of attorney-client privilege for communications that were covered by the privilege. The court remanded for consideration of whether certain communications are discoverable pursuant to the crime-fraud exception to the attorney-client privilege.
Posted in: Environmental Law, International Law, International Trade, U.S. 3rd Circuit Court of Appeals
The defendant, a dual-citizen of the U.S. and Iran and a chemical engineer, marketed a dynamic software program to Iranian actors and agreed to provide Iranian entities with technology for construction of chemical plants, with a goal of converting Iran into a chemical powerhouse. His efforts included contacting President Ahmadinejad to unveil his plan to help Iran, with respect to the United States' "cruel and tyrannical" treatment of the Iranian people. He was convicted on 10 chargesâfour counts stemming from violations of the International Emergency Economic Powers Act (IEEPA), three counts of making false statements, and three counts of bank fraud and sentenced to a four years imprisonment. The Third Circuit affirmed, rejecting a challenge to the constitutionality of the IEEPA and Treasury Department's Office of Foreign Assets Control regulations. The law meaningfully constrains the President's discretion and does not violate the separation of powers doctrine. The government proved, beyond a reasonable doubt, that the defendant's operation does not fall within the informational-materials exemption of the Act. The regulations are not unconstitutionally vague.