Well, we didn’t get a cert decision in Costco Wholesale Corporation v. Omega, S.A. but we did get a bombshell. The Supreme Court has invited the Solicitor General to file a brief on behalf of the United States. It’ll be interesting to see where this goes.
For any of you who want to know more about the process through which the Supreme Court “invites” a brief from the S.G., Tony Mauro of the Legal Times wrote a great article on the topic in 2003. Snipits below:
[M]ost of the time, when asked, the solicitor general’s advice carries great weight: In the last three terms, the Court has followed the SG’s invited recommendation 74 percent of the time.
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Although there is no written rule, it is believed that the vote of three justices is needed to ask for the solicitor general’s views, one less than is needed to grant review. For that reason, an invitation is sometimes seen as a sign that three justices who want the Court to grant review are looking for a powerful ally to help them win a fourth vote.And although framed as invitations, CVSGs are included on the list of orders issued by the Court. When the solicitor general files his brief in reply, he uses the odd formulation that it is being “submitted in response to the order of this Court inviting the Solicitor General to express the views of the United States.”
Indeed they are more like orders than invitations: They are not to be declined. But no firm deadline is established, and sometimes the SG’s office takes months to reply.
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[D]elay can also occur because an invitation forces the government to study and take a stance on an issue that it would just as soon have avoided. Factions from all parts of the federal government and the private sector are called in, and intense lobbying often ensues.“There are times when you very much hope to be asked. It can be an opportunity,” says former Reagan administration Solicitor General Charles Fried, now a professor at Harvard Law School. “But sometimes you very much hope you won’t be asked.”
Here are the documents from the Court docket:
- Petition of Writ of Certiorari (Costco)
- Brief of Amicus Curiae Public Citizen in Support of Petitioner
- Brief of Amici Curiae Public Knowledge, Electronic Frontier Foundation in Support of the Petition
- Brief of Amici Curiae Entertainment Merchants Association and National Association of Recording Merchandisers in Support of Petitioner
- Brief for EBay Inc. as Amicus Curiae in Support of Petitioner
- Brief Amicus Curiae Retail Industry Leaders Association, National Association of Chain Drug Stores, Amazon.com, Gamestop Corp., Movie Gallery, Inc., Quality King Distributors, Inc., Target Corporation,in Support of Petitioners
- Brief for Respondent in Opposition (Omega)
- Reply Brief for Petitioner (Costco)
- Supplemental brief for Petitioner (Costco)
Recent scholarship from the 
6 Comments
The supplemental brief is here:
http://www.robbinsrussell.com/pdf/508.pdf
Thanks for the pointer to the filing.
none of the links above work?
Remove 2009/10/ from each of the links and you do get the documents. Somebody screwed up.
My apologies. They should be up and running.
Link to Retail Industry Leader brief still doesn’t work.