[00:00:25] Speaker 03:
Digital Alley.

[00:00:32] Speaker 04:
Mr. Daniels?

[00:00:33] Speaker 04:
May it please, Your Honor.

[00:00:35] Speaker 04:
I'm Jim Daniels.

[00:00:36] Speaker 04:
I represent the Appellant Digital Alley.

[00:00:38] Speaker 04:
I'll refer to it hereafter, if I may, as digital.

[00:00:42] Speaker 04:
My friends represent Appellate Taser.

[00:00:45] Speaker 04:
I'll refer to it as Taser, mindful that it's changed its name to Axon.

[00:00:49] Speaker 04:
Time permitted, I would propose to do three things.

[00:00:52] Speaker 04:
First, to refocus our attention from what the law is with regard to North Pennington to why it is the law and why it should not be the law, in particular with respect to a Robinson-Patton claim.

[00:01:09] Speaker 04:
Second,

[00:01:12] Speaker 04:
I will explain why we have the temerity to suggest that the late Judge Scalia's pronouncements in Omni V City of Columbia, or perhaps vice versa, are in fact dicta when they say that in fact bribing a public official is among the rights protected under the petition clause of the first amendment.

[00:01:34] Speaker 04:
And indeed are also protected under Parker State action immunity.

[00:01:39] Speaker 04:
And third, I'm going to suggest, and hopefully again obtain agreement, that whatever regime of immunity, whether founded on North Pennington or Parker, that was erected in Omni was destroyed in North Carolina dental examiners.

[00:01:55] Speaker 04:
We'll explain that the immunity that Judge Scalia created in Omni.

[00:02:04] Speaker 04:
A bigger pardon, Your Honor.

[00:02:06] Speaker 01:
We who are called Judge.

[00:02:09] Speaker 01:
get sort of persnickety when those who are titled justice.

[00:02:14] Speaker 04:
Oh, I beg your pardon, Your Honor.

[00:02:17] Speaker 04:
I guess I tend to lump all who have taken the veil together.

[00:02:22] Speaker 04:
And I apologize, Your Honor.

[00:02:24] Speaker 03:
Some of us are more virginal than others.

[00:02:26] Speaker 04:
There you go.

[00:02:26] Speaker 04:
Thank you.

[00:02:27] Speaker 04:
Thank you, Your Honor.

[00:02:28] Speaker 04:
Justice, Mr. Jehu, whom I greatly respect.

[00:02:32] Speaker 04:
I'm simply referring to them because it's, for whatever reason, easier for me to say than Omni.

[00:02:37] Speaker 04:
I don't know why.

[00:02:39] Speaker 04:
In any event, Justice Scalia's regime of immunity in Omni required only one thing.

[00:02:47] Speaker 03:
So cite me to some cases that say that Omni's bribery discussion is non-binding dicta.

[00:02:55] Speaker 01:
Ah, there aren't any.

[00:02:56] Speaker 03:
There aren't any.

[00:02:59] Speaker 01:
Didn't the 10th Circuit's decision as a Cole, C-O-L-L, pretty much say it kind of meant what it said in Omni?

[00:03:08] Speaker 04:
Well, assuming that the Tenth Circuit is allowed by a panel to overrule a prior Tenth Circuit decision that held exactly the contrary, keeping in mind that that prior Tenth Circuit decision was never mentioned in Omni, nor was any other decision which had held that bribery was not conduct that was within the protections of either North Pennington or Parker State Action, and that the Tenth Circuit said,

[00:03:37] Speaker 04:
before call you know there is corrupt.

[00:03:41] Speaker 04:
There are corrupt practices which may prevent you from getting parker immunity or norpennington immunity.

[00:03:47] Speaker 03:
But in CALL you rely on TAL and HELCO and in CALL it specifically says TAL was dicta and contrary to the clear holding in OMNI and

[00:04:06] Speaker 03:
I don't see how you can cite those.

[00:04:09] Speaker 04:
Well, keep in mind that the one that the principal case is instructional systems where the 10th Circuit held, albeit some years ago in the early 80s, that bribery of an official does not entitle one to First Amendment immunity from antitrust claims.

[00:04:32] Speaker 04:
And held it quite specifically, the 10th Circuit then

[00:04:35] Speaker 04:
never mentions instructional systems again when it decides call.

[00:04:43] Speaker 04:
So one would think that if a panel bound to observe the continuing validity of a prior panel opinion, which it can't reverse any more than I presume that a panel of this court can reverse another panel of this court or prior panel of this court,

[00:05:03] Speaker 04:
They should have mentioned it and said, oh, by the way, you know, whatever Justice Scalia said in Omni has completely negated all of this.

[00:05:13] Speaker 04:
They didn't say that.

[00:05:16] Speaker 03:
There is such a thing as sub silencio.

[00:05:19] Speaker 04:
Well, I think that's right.

[00:05:21] Speaker 04:
The Supreme Court gets to say.

[00:05:25] Speaker 04:
Of course, I'm not talking about the Supreme Court.

[00:05:27] Speaker 04:
I'm talking about that legislative court that is the 10th Circuit.

[00:05:34] Speaker 04:
which is obliged to follow its own rules of its own jurisprudential rules regarding panel opinions and the manner in which they may be then subsequently abrogated by that court itself.

[00:05:50] Speaker 01:
Would you mind if I'm turning to the point that you mentioned that you think that whatever North Pennington may do to your section one claim, it shouldn't do anything to your

[00:06:04] Speaker 01:
What section 13 C claim?

[00:06:06] Speaker 04:
Well, think of it this way, uh, nor Pennington.

[00:06:10] Speaker 04:
And a lot of what I say is, is equally applicable to Parker.

[00:06:15] Speaker 04:
Just justice Scalia rolls them together.

[00:06:17] Speaker 04:
That's appropriate.

[00:06:19] Speaker 01:
Um, and, and would it be similarly appropriate to have to conduct the same analysis under the local government act, which as I read it in GF gaming, pretty much, um, tracks.

[00:06:33] Speaker 01:
at least the Parker analysis.

[00:06:36] Speaker 04:
I would say so.

[00:06:38] Speaker 04:
Keeping in mind, of course, that the Act is the least immunity because it does not immunize one from anything except Clayton Act damages, not Clayton Act injunctions, and not Clayton Act attorney's fees.

[00:06:49] Speaker 01:
What are you seeking here?

[00:06:51] Speaker 04:
Now, we are seeking an injunction and damages in attorney's fees.

[00:06:55] Speaker 01:
I see.

[00:06:56] Speaker 01:
So the local government act would not provide the same

[00:07:03] Speaker 01:
scope of relief to the defendants as Narpenny... It would not, Your Honor.

[00:07:09] Speaker 04:
This is our position with regard to Robinson-Patman and Sherman Act.

[00:07:13] Speaker 04:
We know what Parker says.

[00:07:15] Speaker 04:
Parker says, you know, we don't think that Congress, when it enacted the Sherman Act and thus prohibited contracts, combinations, and conspiracies in retrainers' trade in Section 1, let's say, meant to affect the operations of government, which themselves may,

[00:07:33] Speaker 04:
in a governmental interest of a sovereign state, affect trade adversely and the very kind which we wish to promote.

[00:07:44] Speaker 04:
In the Sherman X General, I just quoted it to your honor.

[00:07:47] Speaker 04:
The Robinson-Patman Act is not.

[00:07:50] Speaker 04:
The Supreme Court says it's specific.

[00:07:53] Speaker 04:
Each prescription stands on its face.

[00:07:57] Speaker 04:
They require no showing of injury to commerce.

[00:08:01] Speaker 04:
They are meant to protect competitors and not competition.

[00:08:06] Speaker 04:
And that a violation when shown, when conduct contrary to the statute occurs, it is a violation without no market power, no showing of effect on competition, nothing.

[00:08:21] Speaker 04:
The Robinson-Patman Act was construed by the Supreme Court itself to apply to local governments in Jefferson County Pharmaceutical Association.

[00:08:31] Speaker 04:
That's what it said, because that was what was at issue there, whether these local governments could, in effect, control the price of pharmaceuticals, which would then violate the discriminatory pricing provisions of Robinson-Patman A&D, 2 A&D or 12, or rather 13 A&D.

[00:08:58] Speaker 04:
The Supreme Court said that, the Supreme Court also said, with no reference to Robinson Patman or Parker, with no reference to nor Pennington or Parker, they said in California Motor Transport that bribing a public official violated the anti-bribery provisions of Section 2C of Robinson Patman.

[00:09:16] Speaker 04:
That's what they said.

[00:09:17] Speaker 04:
That's not what Digital says or what Daniel says, that's what they said.

[00:09:23] Speaker 04:
Yes, we've got a nice general prescription against conduct in restrained trade.

[00:09:29] Speaker 04:
That's the Sherman Act.

[00:09:30] Speaker 04:
That's wonderful.

[00:09:31] Speaker 04:
But we have a highly specific, whatever else you want to say about Robertson Patent, and your honors could probably say plenty.

[00:09:38] Speaker 04:
We have a highly specific provision that prohibits the communication of bribes and the connection with the sale of goods and commerce, which according to the Supreme Court applies to a governmental purchaser.

[00:09:50] Speaker 04:
And according to the Supreme Court,

[00:09:52] Speaker 04:
in the case of a governmental purchaser, results in a violation of that very specific provision of Robinson patent.

[00:09:59] Speaker 04:
So that's why we say it's different.

[00:10:02] Speaker 04:
Now, the final point, we know what Justice Scalia said in Omni.

[00:10:06] Speaker 04:
He said, Parker, and thus, North Pennington immunity, is going to attach whenever there is a showing that the governmental entity had the power to do what you asked it to do.

[00:10:20] Speaker 04:
And it doesn't matter whether you bribe it to do it,

[00:10:23] Speaker 04:
And it doesn't matter whether you conspired with it to do it.

[00:10:26] Speaker 04:
It's sufficient alone if that governmental entity in Omni, it was a zoning board, had the power to erect, to create zoning regulations which, in effect, put a competitor out of business.

[00:10:38] Speaker 04:
Now, if that was the holy entities, that could not have survived North Carolina Board of Dental Examiners, which says very specifically that states cannot authorize anyone, including, in that case, a state instrumentality.

[00:10:53] Speaker 04:
to violate, to impair competition, and then just claiming that it's legal.

[00:10:58] Speaker 04:
That's exactly what Judge Scalia said the recipe was in Omni.

[00:11:06] Speaker 04:
Dental examiners looks behind, looks behind, does all of the things Justice Scalia did not want done for undoubtedly excellent federalism reasons.

[00:11:18] Speaker 04:
But dental examiners looks behind.

[00:11:22] Speaker 04:
In that case, a prescription by, a regulation by a state dental board controlled by dentists of non-dentists operated tooth cleaning parlors.

[00:11:34] Speaker 04:
Now, that dental board had the unqualified ability... Just let you know, you're into your rebuttal time, but you can... I beg your pardon.

[00:11:41] Speaker 04:
I'll quickly conclude, Your Honor.

[00:11:43] Speaker 04:
That dental board had the unqualified ability per omni to do exactly what it did.

[00:11:48] Speaker 04:
But exactly what it did was declared by the Supreme Court to be anti-competitive.

[00:11:52] Speaker 04:
And without regard to claims of immunity.

[00:11:58] Speaker 04:
Thank you, Your Honor.

[00:12:07] Speaker 03:
Ms.

[00:12:07] Speaker 03:
Peterson.

[00:12:08] Speaker 00:
Good morning, Your Honors.

[00:12:10] Speaker 00:
May it please the court, Pam Peterson, on behalf of Taser International.

[00:12:14] Speaker 00:
The district court in this case dismissed all of digital's anti-trust claims, both federal and state.

[00:12:21] Speaker 00:
But digital here has only briefed and raised on appeal the dismissal of Count 3, the Robinson-Patman Section 2C claim.

[00:12:30] Speaker 00:
So we would ask that the court summarily affirm the dismissal of the Section 4, or the Count 4 Sherman Act claim, and the Counts 5 through 8 state law claims.

[00:12:42] Speaker 00:
We think it's also appropriate for the court to summarily affirm the decision to dismiss the Count 3 claim

[00:12:49] Speaker 00:
under Section 2C, based on controlling Supreme Court and 10th Circuit law.

[00:12:54] Speaker 00:
The district court really got it right here.

[00:12:56] Speaker 00:
North Pennington immunity bars digital's antitrust claims, regardless of their statutory basis.

[00:13:02] Speaker 01:
Now digital... Can I just... I mean, I guess since you started there, what makes you say that the section, the Sherman Act Section 1 claim is not at issue in front of us?

[00:13:15] Speaker 00:
It's not been briefed or argued as a separate basis for here.

[00:13:23] Speaker 00:
In fact, in the first issue that's raised by Digital, they basically say that, let me find the language here, Norpennington may indeed shield citizens' efforts to influence government officials from attack under the Sherman Act, but then they go on to say, but it fails under

[00:13:44] Speaker 00:
Section 2C of the Robinson-Patman Act and don't otherwise, a briefer, argue anything relating to the Sherman Act at all.

[00:13:51] Speaker 00:
So we do believe that the only thing that's for merits review really in front of this panel.

[00:13:55] Speaker 01:
So issue number two says, is there immunity from antitrust claims where the government entity acts not in a regulatory capacity but as a commercial participant?

[00:14:14] Speaker 01:
Correct.

[00:14:16] Speaker 01:
Issue number three is about Board of Dental Examiners, which is a section one case, not a Robinson-Patton case.

[00:14:24] Speaker 01:
Cole is a section one case.

[00:14:29] Speaker 01:
I mean, I agree there's no mention of state law claims, but I guess it's a little surprising to hear you say that section one isn't before us.

[00:14:37] Speaker 00:
Well, I think, Your Honor, that the focus clearly on the briefing is on the Section 2 Robinson-Patman Act.

[00:14:44] Speaker 01:
Well, I think it's stronger and easier, but I'm not sure that they've limited it.

[00:14:49] Speaker 00:
But I think regardless, in terms of both Cole and Omni, you're talking about North Pennington being applied across antitrust statutes in a broad way, and that there's nothing really special about the Robinson-Patman

[00:15:04] Speaker 00:
section two claims that would somehow trump the kind of first amendment considerations that are behind the doctrine when there is government petitioning that is involved.

[00:15:18] Speaker 01:
What about Mr. Daniel's point that the first amendment doesn't protect bribery?

[00:15:24] Speaker 01:
So why would you interpret North Pennington, which is grounded in the first amendment to immunize bribery?

[00:15:33] Speaker 01:
from otherwise applicable laws, like Robinson Patten.

[00:15:38] Speaker 00:
The First Amendment protects government petitioning.

[00:15:40] Speaker 00:
And what Omni makes very clear is that it's very difficult to apply when you're talking about lobbying and other types of forms of petitioning of the government as to the type of conduct that's involved there.

[00:15:55] Speaker 02:
There's no difference between bribery and lobbying?

[00:16:01] Speaker 00:
Well, they may call it bribery, for example, in the second amended complaint here, but really what is described in the complaint is no more than just lobbying of municipalities to use, for example, laws that are on the books for sole source and no-bid contracts.

[00:16:18] Speaker 00:
It really is the essence of lobbying and petitioning the government.

[00:16:22] Speaker 00:
But Omni... That's not what I asked.

[00:16:28] Speaker 01:
Yeah.

[00:16:28] Speaker 01:
Go ahead.

[00:16:28] Speaker 01:
No, no.

[00:16:28] Speaker 01:
It seems to me that they've

[00:16:30] Speaker 01:
culled from various newspaper accounts criticisms or question raising about six or seven different cities.

[00:16:41] Speaker 01:
And in some of them, probably what the complaint says is nothing other than they actually persuaded the officials responsible for decision-making to do sole source and probably doesn't

[00:16:58] Speaker 01:
do much more than that, but I thought in a few of them, they have allegations about benefits personally provided to certain decision makers, paid for trips.

[00:17:11] Speaker 01:
And I guess that's the one that's coming to mind.

[00:17:14] Speaker 01:
And then there's one about giving business to, I don't know, the mayor's campaign manager or something like that.

[00:17:20] Speaker 01:
You don't think that, first of all, do you think that that on its face

[00:17:24] Speaker 01:
crosses the line into section two, Robinson-Patton.

[00:17:29] Speaker 00:
I don't, Your Honor.

[00:17:31] Speaker 00:
When you search for the word bribery in the complaint, basically it shows up in the headings.

[00:17:36] Speaker 00:
The newspaper articles that are cited describe potential conflicts of interest and ethical types of violations, not by taser, but by the government officials involved in some of these different scenarios.

[00:17:48] Speaker 00:
And so there really is no specific

[00:17:51] Speaker 00:
identified bribe paid to any government procurement official that had responsibility to grant Taser these particular contracts for our body cameras.

[00:18:02] Speaker 00:
It's just not there.

[00:18:04] Speaker 00:
But in any event, whether it's bribery or not, Omni, I think, is very clear that it's not only conspiracy that there's no exception for in terms of North Pennington community, but it also is any form of corruption or bribery.

[00:18:21] Speaker 00:
and that that applies broadly across antitrust statutes and would also encompass the section 2C claims.

[00:18:31] Speaker 00:
I want to address a few things specifically.

[00:18:35] Speaker 00:
It is one of the arguments in the reply brief, actually the opening relating to, on pages one and two, the claim that there are these four circuit court decisions

[00:18:49] Speaker 00:
that Taser somehow failed to refute that, apply commercial bribery to Section 2 claims.

[00:18:57] Speaker 00:
And I wanted to address that because the question really is not whether Section 2 encompasses commercial bribery claims.

[00:19:04] Speaker 01:
Robinson-Pabman, Section 2.

[00:19:05] Speaker 00:
I'm sorry?

[00:19:05] Speaker 00:
Robinson-Pabman, Section 2.

[00:19:07] Speaker 00:
Yes.

[00:19:08] Speaker 00:
I'm sorry if I misspoke there.

[00:19:09] Speaker 00:
But the question really isn't whether or not bribery claims fall within Section 2C.

[00:19:14] Speaker 00:
And clearly that section was enacted as a

[00:19:19] Speaker 00:
price discrimination type of a claim.

[00:19:24] Speaker 00:
And that's not something that is alleged here at all.

[00:19:26] Speaker 00:
It's certainly not universally accepted that bribery claims fall within that section to begin with.

[00:19:31] Speaker 00:
But even if you assume for the purposes of this proceeding that they do fall within there, the question is still whether or not that conduct, if it involves government petitioning, and certainly not all conduct under 2C involves government petitioning, but when it does,

[00:19:48] Speaker 00:
does immunity principles apply to exclude those types of claims?

[00:19:53] Speaker 00:
And none of those four cases address that issue at all.

[00:19:56] Speaker 00:
They really are simply irrelevant.

[00:19:58] Speaker 00:
They all proceed omely.

[00:20:00] Speaker 00:
Only one of them involved government petitioning at all, and that's the Rangan case, which has subsequently been overruled by the Ninth Circuit.

[00:20:07] Speaker 00:
The others all involve private parties without government petitioning.

[00:20:14] Speaker 00:
And so they don't raise the same kind of First Amendment concerns.

[00:20:17] Speaker 00:
And none of them, of course, are from the 10th Circuit.

[00:20:20] Speaker 00:
And the 10th Circuit is what controls here.

[00:20:23] Speaker 00:
And the Cole case has ruled specifically that North Pennington applies to bribery claims.

[00:20:32] Speaker 01:
Am I remembering right?

[00:20:35] Speaker 01:
The 10th Circuit, North Pennington cases don't address the Robinson Patent Act.

[00:20:43] Speaker 00:
Well, what Cole says, and I think what Omni says as well, is that bribery is not an exception to newer Pennington immunity, and that it applies to these claims.

[00:20:58] Speaker 00:
I think if you go back to Omni, Omni specifically talks about and distinguishes a California motor transport case.

[00:21:07] Speaker 00:
And that is a case where there's language in there that says bribery

[00:21:13] Speaker 00:
of a public purchasing agent may constitute a violation of Section 2 of the Clayton Act.

[00:21:19] Speaker 00:
That case didn't involve actual bribery claims at all, and so under Digital's own definition, it's dicta.

[00:21:25] Speaker 00:
But I think the importance of that in Omni is that the court was well aware of the potential of 2C claims relating to bribery, and they still, having acknowledged that and then distinguishing that particular case, held

[00:21:40] Speaker 00:
in favor of broad immunity protection that encompasses both conspiracy and bribery.

[00:21:47] Speaker 00:
The dental examiner's dissent, I think this is really a stretch where you're trying to rely on a dissent in terms of something that has abrogated a landmark Supreme Court decision.

[00:22:02] Speaker 00:
In that case, clearly no dissent is binding authority, but the dissent

[00:22:07] Speaker 00:
and dental examiners also expressly recognized that Omni's rejection of corruption.

[00:22:14] Speaker 00:
And so it, like the majority, found that and stated that Omni had this broad rejection of corruption types of exceptions.

[00:22:23] Speaker 00:
And so it is in alignment with that.

[00:22:25] Speaker 00:
It simply complained that the majority was watering down the holding of Omni, basically, in situations where there was a delegation of sovereign

[00:22:35] Speaker 00:
authority to, in this case, a dental examiner board.

[00:22:39] Speaker 00:
That type of delegation is not at issue in this case.

[00:22:42] Speaker 00:
And so like the district court said here, a dissent is recognizing that the diminished, perhaps, application in a certain context of a decision is not the same as abrogation of a prior Supreme Court decision.

[00:22:58] Speaker 01:
Can you just go back for a minute and point me

[00:23:02] Speaker 01:
to I think the reference that you said Omni makes either to the Robinson-Pappin Act or to California Motor Transport with... Yes.

[00:23:15] Speaker 00:
So Omni doesn't specifically call out or mention 2C in its decision.

[00:23:20] Speaker 00:
That's true.

[00:23:21] Speaker 00:
But there is a discussion at Omni pages 380 to 82 of the California Transport case.

[00:23:29] Speaker 00:
That case has a line in it that digital has relied on that is truly a dicta statement, because that case didn't involve bribery either.

[00:23:39] Speaker 00:
It was a sham exception case.

[00:23:41] Speaker 00:
But in that case, it said bribery of a public purchasing agent may constitute a violation of Section 2C of the Clayton Act.

[00:23:50] Speaker 00:
And so the Supreme Court, clearly aware of that language in a prior Supreme Court decision, still held that

[00:23:59] Speaker 00:
bribery was not an appropriate exception and that it did not nullify North Pennington immunity or the application of it.

[00:24:07] Speaker 00:
So the importance really of California Motor Transport is the fact that it did have language in it relating to Section 2C of Robinson-Patman and still ruled the way that it did.

[00:24:21] Speaker 00:
I think that the digital really

[00:24:24] Speaker 00:
ignores the 10th Circuit's decision in Cole, which really is controlling here.

[00:24:29] Speaker 00:
They acknowledge that the 10th Circuit law doesn't ignore it.

[00:24:32] Speaker 01:
It just actually spends quite a lot of time attending to it and telling us that it can't be followed.

[00:24:40] Speaker 00:
True.

[00:24:40] Speaker 00:
In its opening brief, it doesn't mention it at all.

[00:24:43] Speaker 01:
It asks us to disregard it.

[00:24:45] Speaker 00:
So in Cole, this is a post-Omni decision that was a bribery case and applied Northampton to preclude

[00:24:54] Speaker 00:
that claim in any event and so it certainly did not treat Omni as any kind of dicta and that really is the law that that controls digital acknowledges that the ten circuit law controls this appeal and so when you combine... There still exist other remedies

[00:25:14] Speaker 03:
in in a bribery circumstance of a public official to obtain it.

[00:25:18] Speaker 03:
There are your honor because these cases really only apply in the antitrust context and only when there's government petitioning if you have things between private parties you know... Well if you have something between a private party and a government official where money exchange hands it may or not be an antitrust violation but it can still be a contract can still be

[00:25:40] Speaker 03:
void at initial.

[00:25:41] Speaker 00:
Yes.

[00:25:42] Speaker 00:
And Omni does recognize that, that this is limited to the antitrust area.

[00:25:46] Speaker 00:
So unless your honors have any further questions, I believe.

[00:25:49] Speaker 01:
I mean, do you agree with your friend's point that the local government act would not in fact be a complete alternative ground in support of affirmance here, because that act

[00:26:06] Speaker 01:
is merely preclude certain remedies, but not all the remedies.

[00:26:10] Speaker 00:
Yes, the injunction remedy would survive in that regard.

[00:26:15] Speaker 00:
Thank you, Your Honor.

[00:26:16] Speaker 03:
Thank you, Counselor.

[00:26:21] Speaker 04:
Mr. Daniels?

[00:26:22] Speaker 04:
May it please, Your Honors.

[00:26:24] Speaker 04:
I do wish to be brief.

[00:26:25] Speaker 04:
My friend indicated, and I think the court has addressed it, and I don't wish to elaborate on its interaction with my friend.

[00:26:34] Speaker 04:
There is one claim, a state law claim arising under California Business and Professional Code 1743, which was the only claim that the district court assigned two grounds for dismissal four, pardon me.

[00:26:55] Speaker 04:
And one of the grounds was that, well, we have not defended that claim on appeal.

[00:27:00] Speaker 04:
And so that's the California Business and Professional Code 143 claim.

[00:27:05] Speaker 04:
The other claims, I think, as the court has pointed out, were all dismissed on North Pennington grounds, and we've attacked those grounds.

[00:27:12] Speaker 04:
And we believe in the bargain, have attacked the grounds upon which all of the claims were dismissed, with the notable exception of the Section 1743 claim, which we did not defend on the alternative ground.

[00:27:29] Speaker 04:
Council has said that it's not universally accepted that North Pennington applies to bribery, yet has failed to cite a single case that says it doesn't.

[00:27:38] Speaker 04:
Now, keep in mind that the language of North Pennington, 2C, 15 USC, 13C, is, I mean, it doesn't look like the federal bribery statute that one saw in US v. McDonald, for example, but it simply provides that the communication of anything of value

[00:27:59] Speaker 04:
to someone in the context of a transaction involving a sale of goods in commerce, when that value is given for something other than actual goods or services transmitted in exchange for the value, that it is prohibited.

[00:28:14] Speaker 04:
And we've cited four opinions from four US Court of Appeals, all of whom say that commercial bribery is prohibited under 2C.

[00:28:26] Speaker 04:
Likewise, the Supreme Court itself cited Rangan

[00:28:29] Speaker 04:
I don't know whether it's been overruled by the Ninth Circuit or not, the Supreme Court itself cited Rangan in California Motor Transport when it made the statement, which my friend has characterized as dicta.

[00:28:43] Speaker 01:
Can I ask you this?

[00:28:44] Speaker 01:
Yes, your honor.

[00:28:48] Speaker 01:
Some of the sentences in your complaint after reciting the story in Albuquerque and the story in LA and the story in other places.

[00:28:58] Speaker 01:
mirror the language of 2C, which discusses, which applies to certain kinds of things paid either to an agent of the other side of the transaction or to the actual other side of the transaction.

[00:29:14] Speaker 01:
I want to focus for one second on the payment to the actual other side of the transaction.

[00:29:21] Speaker 01:
Bribery is a very odd word to use to describe

[00:29:27] Speaker 04:
Well, it, yes.

[00:29:29] Speaker 04:
In other words, and what your honor is saying is, is there evidence that the actual incorporated, the city of Memphis incorporated in 1823 or whatever was actually given some value?

[00:29:43] Speaker 01:
Right.

[00:29:43] Speaker 01:
I mean, you tell certain stories about you took on a big public or they took on a big public relations campaign.

[00:29:51] Speaker 01:
to inform the citizens that the police are now going to have body cams and everybody should feel better about that.

[00:29:58] Speaker 01:
I mean, bribery?

[00:30:00] Speaker 01:
And part of the problem with that prong of 2C, the part that says giving to the other side of the transaction, as I think the Supreme Court has indicated, is it's not that easy to separate a discount from whatever 2C is supposed to apply.

[00:30:16] Speaker 01:
It's a lot easier if you're paying to an agent, but bribery?

[00:30:21] Speaker 04:
I do understand your point, your honor's point, and we do not assign in our complaint any instance in which a quad municipality has actually received something of value itself into its coffers.

[00:30:36] Speaker 04:
All we have been able to identify in our allegations is the communication of value for other than services, we say, to agents and instrumentalities, personnel of these various cities, policemen.

[00:30:50] Speaker 04:
purchasing agents, mayors, in the case of the city of Memphis, police chiefs in the case of the city of Albuquerque.

[00:31:01] Speaker 01:
So maybe bribery is... Well, the reason that matters is that you make a point that on its face has something to be said for it, that maybe the First Amendment doesn't protect actual bribery.

[00:31:18] Speaker 01:
And so exactly what you're

[00:31:20] Speaker 01:
what you're using the term to apply to may not quite fit that point.

[00:31:27] Speaker 04:
I do apologize.

[00:31:29] Speaker 04:
I hadn't gotten your honor's point.

[00:31:31] Speaker 04:
I do see and acknowledge your honor's point.

[00:31:36] Speaker 04:
Would the first amendment then protect the kind of payments that were made, let's say to the police chief of the city of Albuquerque or to the campaign manager of the mayor of the city of Memphis?

[00:31:51] Speaker 04:
Keeping in mind that we believe that First Amendment rights would not extend to my ability to bribe the clerk.

[00:32:01] Speaker 01:
Well, I guess my only point would be that maybe those questions are not that easy to answer.

[00:32:09] Speaker 01:
And hence, maybe there is a somewhat more categorical, nor Pennington nor Parker, protection from using the antitrust laws, including

[00:32:21] Speaker 01:
the Robinson-Patman piece to attack those kinds of maybe somewhat murky forms of conduct.

[00:32:28] Speaker 04:
I do understand that.

[00:32:29] Speaker 04:
And of course our response, Judge, is that whatever, and obviously you've pointed out murkiness, and God knows the Robinson-Patman is generally speaking a swamp of murkiness.

[00:32:44] Speaker 04:
Not so much 2C, but 2C... You're well over your time, so wrap up.

[00:32:49] Speaker 04:
Oh, I do apologize, Your Honor.

[00:32:51] Speaker 04:
2C is, nonetheless, far more specific than the Sherman Act.

[00:32:55] Speaker 04:
And there is authority that it is supposed to apply in a situation like this, not withstanding immunity.

[00:33:00] Speaker 04:
Thank you.