12/2. The Senate Judiciary Committee (SJC) held a hearing on December 2, 2009, titled "Has the Supreme Court Limited Americans' Access to Courts?". It pertained to S 1504 [LOC | WW], the "Notice Pleading Restoration Act of 2009".

The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy is scheduled to hold a similar hearing on December 16, 2009, on HR 4115 [LOC | WW], the "Open Access to the Courts Act of 2009".

These are different bills. However, both would be in the nature of amendments to Rule 12 of the Federal Rules of Civil Procedure (FRCP). Both would undo Supreme Court opinions construing Rule 12(b)(6). Both would impact technology related litigation.

Rule 12(b)(6) provides that "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: ... failure to state a claim upon which relief can be granted".

Rule 12 does not elaborate or explain. However, federal court opinions construe this rule.

Rule 12(e), which would also be affected by these bills, provides, in part, that "A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. ... If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order."

Rule 12(c), which would also be affected by these bills, provides, in full, that "After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings."

The purpose of these bills is to preclude some dismissals for failure to state a claim upon which relief can be granted, or for failure to make a more definite statement. These bills would enable plaintiffs' lawyers in some cases to evade early dismissal, and proceed to trial, on meritless claims unsupported by the facts pled in the complaint. It would thus increase the cost and nuisance to defendants to defend such suits, and therefore raise their settlement value.

Rule 12(b)(6) is a key procedural provision in civil actions against information technology and communications sector companies, especially class action suits against ICT sector companies that allege violation of antitrust, communications, or securities laws.

Indeed, one of the recent Supreme Court opinions construing Rule 12(b)(6) is also a landmark communications law case, Bell Atlantic v. Twombly, 550 U.S. 544.

This was a case brought under Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. The U.S. District Court (SDNY) dismissed pursuant to Rule 12(b)(6). However, the U.S. Court of Appeals (2ndCir) reversed. But then, the Supreme Court reversed the judgment of the Court of Appeals.

Justice Souter wrote the opinion of the Court. He wrote this summary: "Liability under §1 of the Sherman Act, 15 U. S. C. §1, requires a ``contract, combination . . . , or conspiracy, in restraint of trade or commerce.´´ The question in this putative class action is whether a §1 complaint can survive a motion to dismiss when it alleges that major telecommunications providers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, as distinct from identical, independent action. We hold that such a complaint should be dismissed."

See, May 21, 2007, opinion [56 pages in PDF], and story titled "Supreme Court Rules in Bell Atlantic v. Twombly" in TLJ Daily E-Mail Alert No. 1,585, May 22, 2007.

The Supreme Court held, in the context of a motion to dismiss for failure to state a claim, that "stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, ..." (Footnote omitted. Parentheses in original.)

Furthermore, the Court wrote that "an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Hence, when allegations of parallel conduct are set out in order to make a §1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action."

There is also the June 21, 2007, Supreme Court opinion [33 pages in PDF] in Tellabs v. Makor, a case regarding Rule 12(b)(6) and the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA). The opinion construes the meaning of the term "strong inference" in a way that makes it harder for class action securities complaints to survive motions to dismiss. See, story titled "Supreme Court Rules in Tellabs v. Makor" in TLJ Daily E-Mail Alert No. 1,600, June 25, 2007.

These bills would not affect all Rule 12(b)(6) motions to dismiss. These bills would not affect cases where the facts pled in the plaintiff's complaint are not in dispute for the purposes of the motion to dismiss, the extent, specificity and detail of the factual allegations is not a matter of dispute, and the sole issue is whether the plaintiff has pled something that amounts to an actionable claim.

An example of this in a landmark technology case is the September 4, 2007, opinion [39 pages in PDF] of the U.S. Court of Appeals (3rdCir) in Broadcom v. Qualcomm, a case regarding whether a patent holder's deceptive conduct before a private standards development organization (SDO) may be condemned under antitrust laws. Some of the issues on appeal involved the District Court's dismissal of Sherman Act claims for failure to state a claim under Rule 12(b)(6). See, story titled "3rd Circuit Rules that Deception of SDO Can Give Rise to Claims for Violation of Sherman Act" in TLJ Daily E-Mail Alert No. 1,635, September 6, 2007.

Trial Lawyers. HR 4115 is supported by interest groups that advocate the interests of the plaintiffs' trial lawyers bar, such as the American Association for Justice (AAJ), which was previously named Association of Trial Lawyers of America (ATLA), and the American Antitrust Institute (AAI).

The AAJ stated in a release endorsing this bill that "cases are now being dismissed even before the plaintiff can obtain evidence that would confirm the allegations, a process known as discovery. This effectively requires people to know more information than they possibly could have access to."

The AAJ added that "Since many cases are proven because of documents -- such as personnel files and internal company memos -- uncovered in discovery, these new standards allow negligent corporations to escape accountability while weakening Americans' basic legal protections."

House Bill. Rep. Jerrold Nadler (D-NY) and others introduced HR 4115 on November 19, 2009. As of December 9, 2009, there were twelve co-sponsors of the bill. All are Democrats.

This bill would add a new Section 2078 to Title 28 titled "Limitation on dismissal of complaints".

The bill provides that "A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged."

It adds that "The provisions of subsection (a) govern according to their terms except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section or by amendments made after such date to the Federal Rules of Civil Procedure pursuant to the procedures prescribed by the Judicial Conference under this chapter

Senate Bill. On July 22, 2009, Sen. Arlen Specter (D-PA) introduced S 1504, the "Notice Pleading Restoration Act of 2009". The only cosponsor is Sen. Russ Feingold (D-WI).

This bill would provide that "Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957)."

See, opinion in Conley v. Gibson.

Sen. Specter (at right) stated in the Senate on July 22 that "Two years ago in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 2007, the Court jettisoned the standard set forth in Conley and announced that henceforth it would require not only factual specificity in complaints not previously required of plaintiffs, but also that a complaint's allegation of wrongdoing appear ``plausible´´ to the court." See, Congressional Record, July 22, 2009, at Pages S7890-1.

He continued that "The effect of the Court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the Federal courts and, with it, any legal redress for their injuries. I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of Federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants."

Senate Hearing. The Senate Judiciary Committee (SJC) held a hearing on December 2, 2009, which covered Supreme Court opinions interpreting Rule 12, including Twombly.

Sen. Feingold (at left) wrote in his opening statement that "In Twombly, the Supreme Court held that a plaintiff must allege sufficient facts to state a ``plausible´´ claim for relief in a civil complaint. This pleading standard is a significant change from Conley's well-established rule and places a serious burden on plaintiffs."

He added that Twombly and Iqbal have "shifted the responsibility for screening frivolous claims from the discovery and summary judgment stages of litigation to the pleading stage" and permit the "dismissal of lawsuits that may prove meritorious".

Gregory Garre testified against S 1504. He is now a partner in the Washington DC office of the law firm of Latham & Watkins. During the Bush administration, he worked in the Department of Justice's Office of the Solicitor General, including as the acting Solicitor General.

He wrote in his prepared testimony [41 pages in PDF] that "the Twombly and Iqbal decisions are unquestionably important and in line with decades’ worth of precedent at both the Supreme Court and appellate level. It is too soon to say what impact they will have on civil litigation in the federal courts, but they have yet to lead to the wholesale dismissal of claims and are more likely to have an effect on a case-by-case basis. Any legislative effort to override these decisions at this time would be precipitous and unwise, especially insofar as the suggestion is to set a standard in terms of Conley v. Gibson, 355 U.S. 41 (1957). Conley has generated enormous confusion over the last 50 years and virtually all agree that the decision’s “no set of facts” language cannot mean what it says. The sounder course is to permit the Judicial Conference of the United States to continue to monitor the situation and respond if need be through the time-honored judicial rulemaking process established by Congress."

Stephen Burbank, a law professor at the University of Pennsylvania, wrote in his prepared testimony [30 pages in PDF] that "I am concerned that Twombly and Iqbal may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public law".

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, wrote in his opening statement that in Twombly and Iqbal "the Supreme Court is making it more difficult to hold perpetrators of wrongdoing accountable".

In the context of holding wrongdoers accountable, it may be relevant that the Twombly action was brought by the law firm of Milberg Weiss Bershad & Schulman. See, stories titled "Milberg Weiss Indicted for Paying Illegal Kickbacks to Class Action Plaintiffs" in TLJ Daily E-Mail Alert No. 1,375, May 22, 2006; "Bershad Agrees to Cooperate with Prosecutors" in TLJ Daily E-Mail Alert No. 1,607, July 9, 2007; "Lerach Retires" in TLJ Daily E-Mail Alert No. 1,631, August 30, 2007; and "Grand Jury Indicts Weiss; Lerach and Shulman Agree to Plead Guilty" in TLJ Daily E-Mail Alert No. 1,644, September 24, 2007.

12/3. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection held a hearing on HR 3993 [LOC | WW], the "Calling Card Consumer Protection Act".

Rep. Bobby Rush (D-IL) wrote in his opening statement that this bill "would require calling card providers and distributors to accurately, clearly, and conspicuously disclose all relevant and applicable information on the cards. Such disclosures would include contact information for the card service provider, number of minutes supplied on the card, and dollar value of the card."

The bill would require that "Any prepaid calling card provider or prepaid calling card distributor" accurately disclose the "provider's customer service telephone number and hours of service".

It would also require disclosure of the "number of domestic interstate minutes available from the prepaid calling card and the number of available minutes for all international preferred destinations served by the prepaid calling card at the time of purchase" or "the dollar value of the prepaid calling card, the domestic interstate rate per minute provided by such card, and the applicable per minute rates for all international preferred destinations served by the prepaid calling card at the time of purchase".

It would also require disclosure of terms and conditions regarding fees, charges, limitations on use, refund policies, and expiration dates.

However, the bill provides an exemption for carriers' cards. The bill does not apply to "any card, device, or other right of use, the purchase of which establishes a customer-carrier relationship with a provider of wireless telecommunications service or wireless hybrid service, or that provides access to a wireless telecommunications service or wireless hybrid service account wherein the purchaser has a pre-existing relationship with the wireless service provider".

The bill would give civil enforcement, and rulemaking, authority to the Federal Trade Commission (FTC). It would also allow the states to bring civil actions in the U.S. District Court.

With respect to preemption, the bill states that "Nothing in this Act shall affect the authority of any State to establish or continue in effect a provision of the law of a State relating to regulation of prepaid calling cards, prepaid calling card distributors, prepaid calling services, or prepaid calling service providers, except to the extent that such provision of law is inconsistent with the provisions of this Act or a regulation prescribed under this Act, and then only to the extent of such inconsistency."

See also, prepared testimony [PDF] of Lois Greisman (FTC), prepared testimony [PDF] of Sally Greenberg (National Consumers League), prepared testimony [PDF] of Patricia Acampora (National Association of Regulatory Utility Commissioners), prepared testimony [PDF] of Alie Kabba (United African Organization), and prepared testimony [PDF] of Scott Ramminger (American Wholesale Marketers Association).

12/9. The House began its consideration of HR 4173 [LOC | WW], the "Wall Street Reform and Consumer Protection Act of 2009". It is scheduled to continue its consideration of this bill on Thursday, December 10. This is a huge bill regarding regulation of the financial sector. However, it would also affect Federal Trade Commission (FTC) Section 5 authority regarding unfair or deceptive acts or practices. It would also remove numerous provisions from the FTC Act that provide for greater transparency in FTC rulemaking proceedings than that required by the Administrative Procedure Act (APA).

12/9. The House Judiciary Committee (HJC) held a mark up meeting. The second item on the agenda was HR 3190 [LOC | WW], the "Discount Pricing Consumer Protection Act of 2009". However, the HJC only considered the first item on the agenda. The HJC has not yet scheduled another meeting to mark up HR 3190. See also, story titled "House Judiciary Committee to Mark Up Bill to Undo Leegin" in TLJ Daily E-Mail Alert No. 2,020, December 3, 2009.

12/9. The House Government Oversight and Government Reform Committee's (HOGRC) Subcommittee on Government Management, Organization and Procurement held a hearing titled "Protecting Intellectual Property Rights in a Global Economy: Current Trends and Future Challenges". See, Government Accountability Office (GAO) testimony [11 pages in PDF] titled "Intellectual Property: Enhancements to Coordinating U.S. Enforcement Efforts".

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of December 7, and schedule for December 9.

The Senate will meet at 9:30 AM. It will resume consideration of HR 3590 [LOC | WW], the huge health care bill.

8:30 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda for the open portion of this meeting includes a discussion of "Deemed Export Control Methodology". See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Page 61333. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

8:30 AM - 3:15 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Page 59133. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.

9:00 AM - 5:45 PM. Day two of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, November 25, 2009, Vol. 74, No. 226, at Pages 61662-61663. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:30 AM - 2:00 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, November 23, 2009, Vol. 74, No. 224, at Pages 61113-61114. Location: Room 4813, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up several bills. The second item on the agenda is HR 3190 [LOC | WW], the "Discount Pricing Consumer Protection Act of 2009". See, notice. The HJC will webcast this event. See also, story titled "House Judiciary Committee to Mark Up Bill to Undo Leegin" in TLJ Daily E-Mail Alert No. 2,020, December 3, 2009. Location: Room 2141, Rayburn Building.

10:00 AM. The House Government Oversight and Government Reform Committee's (HOGRC) Subcommittee on Government Management, Organization and Procurement will hold a hearing titled "Protecting Intellectual Property Rights in a Global Economy: Current Trends and Future Challenges". See, notice. The HOGRC will webcast this hearing. Location: Room 2247, Rayburn Building.

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "Five Years After the Intelligence Reform and Terrorism Prevention Act (IRTPA): Stopping Terrorist Travel". See, notice. Location: Room 342, Dirksen Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Homeland Security". The witness will be Janet Napolitano, Secretary of Homeland Security. See, notice. Location: Room 216, Hart Building.

2:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Subcommittee on Terrorism, Nonproliferation and Trade will hold a hearing titled "A Strategic and Economic Review of Aerospace Exports". See, notice. Location: Room 2200, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Research Parks and Job Creation: Innovation Through Cooperation". See, notice. Location: Room 253, Russell Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] that requests comments regarding "identifying and remedying barriers to broadband deployment and adoption on Tribal lands". This is to aid the FCC in drafting its "National Broadband Plan". This item is DA 09-2093 in GN Docket Nos. 09-47, 09-51, and 09-137.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of December 7.

The Senate will meet at 10:00 AM. It will resume consideration of HR 3590 [LOC | WW], the huge health care bill.

8:30 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda for the open portion of this meeting includes a discussion of "Deemed Export Control Methodology". See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Page 61333. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:00 AM - 5:45 PM. Day three of a three day conference hosted by the Organization of Economic Cooperation and Development (OECD) and Federal Trade Commission (FTC) titled "Empowering E-Consumers: Strengthening Consumer Protection in the Internet Economy". The deadline to request permission to attend is November 27. Attendance is free. The event will be webcast. See, conference web site and schedule. Location: FTC Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 448 [LOC | WW], the "Free Flow of Information Act of 2009". It also includes consideration of the nominations of Denny Chin (to be a Judge of the U.S. Court of Appeals for the 2nd Circuit), Rosanna Peterson (USDC/EDWash), and William Conley (USDC/WDWisc). The SJC rarely follows is published agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will meet. See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Pages 61332-61333. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

1:00 PM. The House Judiciary Committee (HJC) will hold a hearing titled "Examining the State of Judicial Recusals after Caperton v. A.T. Massey". See, July 8, 2009, opinion [40 pages in PDF] of the Supreme Court, and HJC notice. Location: Room 2141, Rayburn Building.

6:00 PM. There will be an event titled "23rd Annual Chairman's Dinner". The reception begins at 6:00 PM. Dinner is at 7:30 PM. FCC Chairman Julius Genachowski will speak. Prices vary. See, registration form [PDF]. Location: Washington Hilton Hotel.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding online voter registration, online voting, and use to information technologies to make governmental meetings and processes more accessible. This item is DA 09-2431 in GN Docket Nos. 09-47, 09-51, and 09-137. This document states that its purpose is to assist the FCC in drafting a document titled "National Broadband Plan". See also, story titled "FCC Requests Comments on Voting and Democracy" in TLJ Daily E-Mail Alert No. 2,016, November 17, 2009.

Hanukkah begins at sundown.

The House may meet at 9:00 AM. See, Rep. Hoyer's schedule for week of December 7.

12:00 NOON. Deadline to submit initial comments to the Office of the U.S. Trade Representative (OUSTR) regarding the operation, effectiveness, and implementation of, and compliance with, the telecommunications provisions of the World Trade Organization (WTO) General Agreement on Trade in Services, the North American Free Trade Agreement (NAFTA), free trade agreements (FTAs) with Australia, Bahrain, Chile, Morocco, Oman, Peru, and Singapore, and the Dominican Republic -- Central America -- U.S. Free Trade Agreement (CAFTA-DR). See, notice in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59339-59340.

Deadline to submit written comments to the U.S. Patent and Trademark Office (USPTO) in connection with its November 18, 2009, event titled "Roundtable on Work Sharing for Patent Applications". See, notice in the Federal Register, October 21, 2009, Vol. 74, No. 202, at Pages 54028-54029.

First Day of Hanukkah.

The House will meet the week of December 14-18. See, Rep. Hoyer's release.

10:00 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Comparing UK and U.S. Innovation Policy". The main speaker will be Digby Jones (United Kingdom). The other speakers will be Rob Atkinson (ITIF), Stephen Ezell (ITIF), Pragnesh Shah (Network Solutions), David Jeppsen (NTT DOCOMO USA), and Mark McCarthy. See, notice. Location: ITIF, 1101 K St., NW.

9:00 AM - 5:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee will meet. See, notice in the Federal Register, November 30, 2009, Vol. 74, No. 228, at Page 62572. Location: Washington Marriott Hotel, 22nd and M Streets, NW.

9:30 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Social Security will hold a hearing titled "Recovery Act Project to Replace the Social Security Administration’s National Computer Center". See, notice. Location: Room 1100, Longworth Building.

10:30 AM - 12:00 NOON. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Strategies for Reducing Digital Piracy". The speakers will be Robert Atkinson (ITIF) and Daniel Castro (ITIF). See, notice. Location: ITIF, Suite 610, 1101 K St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on numerous pending nominations, including those of Julie Brill and Edith Ramirez to be Commissioners of the Federal Trade Commission (FTC). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Federal Communications Commission (FCC) will host an event titled "open meeting". The schedule contains only one item, a staff report on the status of the drafting of a document titled "National Broadband Plan". See, FCC release. For more information, contact Jen Howard at 202-418-0506 or jen dot howard at fcc dot gov. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM - 5:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee's Nationwide Health Information Network Workgroup will meet. See, notice in the Federal Register, November 30, 2009, Vol. 74, No. 228, at Page 62572. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy will hold a hearing on HR 4115 [LOC | WW], the "Open Access to the Courts Act of 2009", a bill to limit Rule 12(b)(6) dismissals. See, notice. Location: Room 2237, Rayburn Building.

3:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Albert Diaz and James Wynn to be Judges of the U.S. Court of Appeals (4thCir). See, notice. Location: Room 226, Dirksen Building.

Deadline to submit applications to the Office of the U.S. Trade Representative (OUSTR) to be members of panels convened to review final determinations in antidumping or countervailing duty (AD/CVD) proceedings and amendments to AD/CVD statutes of a NAFTA party. See, notice in the Federal Register, December 1, 2009, Vol. 229, No. 74, at Pages 62878-62880.

12/2. The Motion Picture Association of America (MPAA) announced in a release that it "has teamed up with the Fashion District Business Improvement District" in Los Angeles, California, "to offer cash rewards up to $1,000 for information leading to the closure of locations in the Fashion District engaged in the illegal production of DVDs". The Los Angeles Police Department's Captain Blake Chow stated in this release that "gangs are reaping the most benefit from this activity".

12/1. The Copyright Royalty Judges published a notice in the Federal Register that announces, describes, recites, and sets the effective date (January 1, 2010) for, its final rule that provides a cost of living adjustment (COLA) of -0.2% in the royalty rates that colleges, universities, and other nonprofit educational institutions that are not affiliated with National Public Radio pay for the use of published nondramatic musical compositions in the ASCAP, BMI and SESAC repertories.

11/27. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, explains, and sets the effective date (November 27, 2009) of its amended procedure regarding advancing patent applications out of turn. This notice states that while "New patent applications are normally taken up for examination in the order of their United States filing date", the USPTO "has a procedure under which an application will be advanced out of turn (accorded special status) for examination if the applicant files a petition to make special with the appropriate showing". (Parentheses in original.) This notice continues that "The USPTO is providing an additional temporary basis under which a small entity applicant may have an application accorded special status for examination if the applicant expressly abandons another copending unexamined application". See, Federal Register, November 27, 2009, Vol. 74, No. 227, at Pages 62285-62287.

11/23. The Copyright Royalty Judges published a notice in the Federal Register in which they announced receipt from the SoundExchange of a notice of intent to audit the 2006, 2007 and 2008 statements of account submitted by AOL regarding the royalty payments made under the statutory licenses codified at 17 U.S.C. § 114(f) and 17 U.S.C. § 112(e). See, Federal Register, November 23, 2009, Vol. 74, No. 224, at Pages 61176-61177. SoundExchange is designated by the Copyright Office to collect and distribute digital performance royalties for certain recording artists and sound recording copyright owners when their sound recordings are performed on digital cable and satellite television music, internet and satellite radio.

12/3. The Office of the U.S. Trade Representative (OUSTR) announced in a release that the "United States and Singapore held their fifth annual review of the implementation of their Free Trade Agreement (FTA)" on December 3, 2009.

11/25. The Department of State (DOS) published a notice in the Federal Register that discloses, and recites notices sent in October to the Congress regarding, the approval of transfer to Kazakhstan of "technical data, defense services, and hardware to support the Proton launch of the SkyTerra 2 Commercial Communication Satellite", "technical data, and defense services to support the Proton launch of the Telstar 14R Commercial Communication Satellite", and "technical data, defense services, and hardware to support the Proton launch of the QuetzSat-1 Commercial Communication Satellite", all from the Baikonur Cosmodrome in Kazakhstan. See, Federal Register, November 25, 2009, Vol. 74, No. 226, at Pages 61730-61732.

11/23. The Department of Defense (DOD) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (November 23, 2009) of, its interim rule "amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add Taiwan as a designated country to the list of World Trade Organization Government Procurement Agreement designated countries in the trade agreements provisions and clauses in part 252, due to the accession of Taiwan to the World Trade Organization Government Procurement Agreement". The deadline to submit comments on this interim rule is January 22, 2010.

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