This week, the Supreme Court decided Already v. Nike. There, in a trademark suit instituted by Nike, Already counterclaimed that Nike's trademark on its "Air Force 1" sneakers is invalid. Applying the Court's standard for when a once justificiable case becomes moot under Article III's case-or-controversy requirement -- “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000) -- the Court held that Already's counterclaim was moot. (For a fun and potentially useful application of the Friends of the Earth standard, see City of Erie v. Pap's A.M.)
Assuring that a case is justiciable at the outset and remains justificable throughout is often a big challenge for consumer, environmental, and civil rights plaintiffs (as well as to the Alreadys of the world). Rochelle Broboff of the Constitutional Accountability Center has penned a short piece explaining that although Already held that the dispute there had become moot, language in the Court's decision (and in a four-Justice conurrence) may be useful to plaintiffs in a range of public-interest cases. Rochelle's piece is reproduced below.
The Supreme Court’s decision today dismissing a trademark dispute as moot has language that could be helpful in numerous contexts, including environmental cases, public benefits, employment, etc. In a unanimous opinion written by Chief Justice Roberts, the Court emphasized the heavy burden on the party alleging mootness to prove that the allegedly illegal activity cannot recur. In a concurrence, Justice Kennedy, joined by Justices Thomas, Alito, and Sotomayor, suggested that courts “proceed with caution before ruling” that a claim is moot due to voluntary cessation. Already LLC v. Nike, Inc., No. 11-982, 2013 WL 85300 (Jan. 9, 2013).
Nike sued Already for a trademark violation and Already countersued challenging the validity of Nike’s trademark. Nike then issued a “Covenant Not to Sue” and moved to dismiss the claim and counterclaim. Already opposed dismissal of its counterclaim, contending Nike had not proven that the counterclaim is moot. The district court dismissed the counterclaim, and the Second Circuit affirmed. The Supreme Court also affirmed.
The Court stated: “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” (Citations omitted.) The Court noted that the party alleging mootness bears a heavy burden to show that the allegedly wrongful behavior could not reasonably be expected to recur. Because Nike’s covenant was “unconditional and irrevocable,” the Court held that the burden was met. The Court noted that the lower courts in the case did not “expressly invoke the voluntary cessation standard,” but nevertheless their analysis addressed the same questions. The Solicitor General had recommended a remand, but the Court found that unnecessary, based on “uncontested findings” of the district court, affirmed by the Second Circuit.
Concurring, Justice Kennedy noted that the district court and court of appeals wrongly placed the burden on Already to show that a justiciable controversy remained. Kennedy emphasized that the burden is on the party asserting mootness. He explained: “In the circumstances here, then, Nike must demonstrate that the covenant not to sue is of sufficient breadth and force that Already can have no reasonable anticipation of a future trademark infringement claim from Nike.” Kennedy cautioned lower courts to give careful consideration to whether the use of a covenant not to sue has truly mooted a case, since even the initiation of a suit can harm a competitor by forcing disclosure of future business plans or the expenditure of funds in the litigation.
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