|Schwab Says Many Protectionist Bills In
Congress Won't Save a Single American Job
8/29. Susan Schwab, the U.S. Trade Representative
(USTR), gave a
speech in Beijing, People's Republic of China, in which she discussed Doha round trade
talks, China's role in these talks, China's compliance with its
World Trade Organization (WTO) obligations, the possibility
of more WTO enforcement actions against China, and growing protectionism in the US Congress
and around the world.
Schwab (at right) said that
"There are dozens of bills in the U.S. Congress proposed by members who want us to
``get tough´´ or ``stand up to China.´´ Many of these bills would not create or save a single
American job. In fact, some would both kill jobs and limit consumers' choices as prices
increase. Still, these Members of Congress reflect the very real concerns of many Americans
about the impact of China's dramatic entry into the trading system. Responsible actions and
leadership by China can help allay those concerns. Certainly, economic isolationism and
protectionism are not the answer."
In addition, she warned that "a failed Doha Round could foster greater protectionism
around the world."
She spoke at length about Doha trade talks. "The breakdown of
the Doha Round trade talks late last month was a major disappointment for all
who believe in the power of trade to promote economic development, to expand
opportunities and to facilitate cooperation among nations. Indeed, the Doha
Round is our generation's best opportunity to lift millions of people out of
poverty and to raise living standards for millions more."
She stated that "President Bush has directed me to continue our
collective quest for an ambitious, robust and balanced agreement that meets the
objectives that WTO members adopted as part of the Doha Development Agenda."
"The Doha Round is also an important reason why I am in China
today", said Schwab. "It is my strong hope that China will carry out a
clear-eyed assessment of the costs and benefits of a successful Doha Round and
conclude that it is in China’s long-term self-interest to play an active role in
ensuring the Round’s ultimate success. And that ultimate success requires an
outcome that truly opens markets and generates new trade flows."
She also addressed "China’s failure to honor certain
commitments, including its failure to adequately enforce intellectual property
rights, its efforts to protect and support certain domestic industries, and its
delay in fulfilling certain market opening obligations."
She elaborated that "We are discussing additional WTO-related
concerns with China related to IPR enforcement and subsidies, and are closely
monitoring China’s fulfillment of commitments in other areas as well, including
in financial services."
She said that "We do not enjoy bringing WTO enforcement cases",
but that "when good faith dialogue does not yield positive results, we cannot
stand by and allow commitments to go unobserved. We will use the dispute
settlement mechanisms available to us."
She added that "Legal action should not be seen as a hostile
act. Dispute settlement provides an objective means for trade partners to
resolve disputes that otherwise might fester and color the entire trade
relationship. It also provides helpful leverage to government agencies that are
trying to convince other agencies within their own government to abide by WTO
rules. Indeed, the entire global trading system benefits from fair and rational
options for resolving differences."
She argued that "If the Doha Round is unsuccessful, it will be tempting for countries
to rely on litigation rather than negotiation to achieve new market opportunities. In such
a scenario, China's commerce could be particularly vulnerable to legal challenges over its
compliance with global trade rules."
|Solicitor General Urges Reversal in Bell
Atlantic v. Twombly
9/29. The Office of the Solicitor General (OSG)
filed an amicus brief in
Bell Atlantic v. Twombly, a case involving the pleading requirements for an
action under Section 1 of the Sherman Act against regional bell operating companies (RBOCs).
The OSG urges reversal.
The legal is issue is whether a complaint that alleges parallel or similar
behavior, and conspiracy to limit competition, but includes no allegations in
support other than the similar or parallel conduct, is sufficient to survive a
motion to dismiss.
The class action law firm of Milberg
Weiss Bershad & Schulman filed the complaint in
U.S. District Court (SDNY) against
Bell Atlantic and three other RBOCs. The lead named plaintiff is Twombly. See
also, story titled "Milberg Weiss Indicted for Paying Illegal Kickbacks to Class
Action Plaintiffs" in
TLJ Daily E-Mail Alert No.
1,375, May 22, 2006. The District Court dismissed the complaint for failure to state a
claim. The U.S. Court of Appeals (2ndCir)
vacated and remanded. See, October 3, 2005,
[43 pages in PDF] and
titled "2nd Circuit Vacates in Twombly v. Bell Atlantic" in
TLJ Daily E-Mail
Alert No. 1,226, October 4, 2005.
The Supreme Court granted certiorari in June. See,
titled "Supreme Court Grants Cert in Bell Atlantic v. Twombly" in
E-Mail Alert No. 1,399, June 26, 2006.
Section 1 of the Sherman Act, which is codified at
15 U.S.C. § 1, provides, in part, that "Every
contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign
nations, is declared to be illegal. Every person who shall make any contract or
engage in any combination or conspiracy hereby declared to be illegal shall be
deemed guilty of a felony, and, on conviction thereof, shall be punished ..."
The OSG argued that "The Federal Rules of Civil Procedure provide that a
complaint must set forth a claim showing that the plaintiff is entitled to
relief, and require that the complaint provide fair notice to the defendant of
the nature of the plaintiff's claim and the grounds upon which the claim is
based. To meet those criteria, a complaint must allege, at a minimum, a sufficient factual
predicate to provide meaningful notice to the defendant and to demonstrate a reasonable
basis for inferring that the alleged conduct may be wrongful."
The OSG continued that principles governing pleadings "demand more than mere
allegations of parallel conduct and conclusory allegations of an agreement or
conspiracy in the context of a complex antitrust suit. To be sure, evidence of
parallel conduct may at times provide important circumstantial evidence
supporting an inference of agreement in a suit alleging a violation of Section 1
of the Sherman Act. But parallel conduct is to be expected even in fully
competitive markets and, standing alone, provides an insufficient basis for
inferring an illegal agreement."
Moreover, the OSG wrote, "a conclusory assertion of a conspiracy or agreement
does not suffice to convert allegations of parallel conduct into a sufficient
claim of a Section 1 violation. Because an agreement is the critical factor
distinguishing innocuous parallel conduct from a Section 1 violation, courts
must insist on more than mere conclusory allegations of that element. The court
of appeals' standard -- which would appear to require nothing more than
allegations of parallel conduct and a conclusory allegation of conspiracy -- is
This case is Bell Atlantic Corporation, et al. v. William
Twombly, et al., Sup. Ct. No. 05-1126, a petition for writ of certiorari to
the U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 03-9213. Judge Sack
wrote the opinion of the Court of Appeals, in which Judges Raggi and Hall
joined. The Court of Appeals heard an appeal from the U.S. District Court for
the Southern District of New York, Judge Gerald Lynch presiding.
See also, Supreme Court
Bell Atlantic and the other petitioners are represented by
Michael Kellogg of the Washington DC law firm of
|People and Appointments
8/29. President Bush announced his intent to nominate Robert Howard to be Assistant
Secretary of Veterans Affairs (Information and Technology). See, White House
|Washington Tech Calendar
New items are highlighted in red.
|Wednesday, August 30
The House will next meet at 2:00 PM on Wednesday, September 6. See,
Republican Whip Notice.
The Senate will next meet at 11:00 AM on Tuesday, September 5.
Deadline to submit comments to the
Internal Revenue Service (IRS) in response to its notice of proposed rule making
pertaining to the application of
26 U.S.C. § 199, which provides a deduction for income attributable to domestic
production activities, to certain transactions involving computer software. See,
notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages
|Thursday, August 31
11:00 AM. The
Cato Institute will host a panel discussion titled "Prospects for
Reform of U.S. Agricultural Policy --With or without Doha". The speakers
will include Mike Johanns (Secretary of Agriculture), former Rep. Cal Dooley
(D-CA) (head of the Food Products Association), and Robert Thompson
(University of Illinois). See,
notice and registration
page. The event will be webcast by Cato. Lunch will follow the program.
Location: Cato, 1000 Massachusetts Ave., NW.
Deadline to submit comments to the National Institute of Standards and
Technology's (NIST) Computer Security Division regarding
draft [ZIP] of Special Publication (SP) 800-69, titled "Guidance for Securing
Microsoft Windows XP Home Edition: A NIST Security Configuration Checklist. See also,
document provides guidance to telecommuting employees and those who maintain
home offices and use Windows XP Home Edition.
|Friday, September 1
Effective date of the Federal Trade
Commission's (FTC) final rule amending Section 310.8 of its Telemarketing
Sales Rule (TSR) by revising the fees charged to entities for accessing the
National Do Not Call Registry. See,
notice in the Federal Register, July 31, 2006, Vol. 71, No. 146, at Pages
Deadline to submit initial comments to the
Federal Communications Commission (FCC) for
its 2006 biennial review of telecommunications regulations. See, FCC
[10 pages in PDF] and
notice in the Federal Register, August 23, 2006, Vol. 71, No. 163, at
Pages 49400-49401. This is CG Docket No. 06-152, EB Docket No. 06-153, IB Docket No.
06-154, ET Docket No. 06-155, WT Docket No. 06-156, WC Docket No. 06-157, and
Deadline to submit initial comments to the
Federal Communications Commission (FCC) regarding the initial regulatory flexibility analysis of the FCC's Second Further Notice of Proposed
Rule Making in its proceeding titled "In the Matter of Children's Television
Obligations of Digital Television Broadcasters" and numbered MM Docket No. 00-167. See,
notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at
|Tuesday, September 5
The Senate will return from its August recess at 11:00 AM. It will
resume consideration of
HR 5631, the Department of Defense FY 2007 appropriations bill. See,
2006 Senate calendar.
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in Business Objects v. Microstrategy,
App. Ct. No. 05-1540. Location: Courtroom 201, 717 Madison Place, NW.
1:00 - 3:00 PM. The
U.S. Patent and Trademark Office (USPTO) and the
U.S. Copyright Office (CO) will hold a public
roundtable discussion regarding World Intellectual Property
Organization's (WIPO) Standing Committee on Copyright and Related Rights' (SCCR) work on
a proposed Treaty On the Protection of the Rights of Broadcasting Organizations. See,
notice in the Federal Register, August 17, 2006, Vol. 71, No. 159, at Page
47489. Location: Atrium Conference Room, USPTO, 600 Dulany Street, Madison
West, 10th Floor, Alexandria, VA.
Deadline to submit comments to the Office
of the U.S. Trade Representative (USTR) regarding whether major beneficiaries of the
Generalized System of Preferences (GSP) program have expanded exports or have progressed
in their economic development within the meaning of the statute to the extent that their
eligibility should be limited, suspended, or withdrawn, pursuant to section 502(d) of the
Trade Act of 1974, which is codified at 19 U.S.C. § 2462(d). See,
notice in the Federal Register, August 8, 2006, Vol. 71, No. 152, at Pages
|Wednesday, September 6
The House will return from its August recess.
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