Poisonous Chocolate Sauce at One First Street

December 3rd, 2013

Congratulations to Jameson Jones on his first argument today in Lexmark Int’l, Inc. v. Static Control Components, Inc. Fittingly, Jameson’s first question was from his former boss, Justice Scalia.

Then there was this odd colloquy about Justice Breyer’s hypo involving, “soda fountain that sells ice cream with chocolate sauce and there is a statement that the chocolate sauce is poisonous.”.

JUSTICE ALITO: So if Bailey’s was the only place that sold this chocolate sauce, Bailey’s might have standing. That would be similar to this case. But if other places also sold this chocolate sauce, then Bailey’s is out.

MR. JONES: In the hypothetical that I hear from Justice Breyer, the statement was: The chocolate sauce that Bailey’s uses is poisonous. In that circumstance, where both Bailey’s is mentioned and the chocolate sauce, then I think Bailey’s would have to have standing.

JUSTICE BREYER: How do we tie that in? I’m sort of sorry I used that hypothetical.

(Laughter.) JUSTICE BREYER: But it nonetheless illustrates -­

JUSTICE SCALIA: I am too because I’m sick of it.