Smith raised withdrawal as a defense to conspiracy charges. The district court charged the jury that withdrawal is an affirmative defense and Smith bore the burden of persuasion. The jury convicted smith and the DC Circuit affirmed. Resolving a circuit split, the Court unanimously affirmed. It held there is no constitutional requirement for the government to disprove withdrawal as withdrawal does not negate any element of the continuing offense of conspiracy. Nor is the government required to disprove withdrawal under them federal conspiracy statute as the burden to prove affirmative defenses historically lies with defendants. The Court pointed out that withdrawal is particularly well suited for a defense burden of persuasion as the testimony needed to prove or disprove the acts of withdrawal are in the possession of the defense. The opinion concluded with the admonition to Smith that his withdrawal from the evil agreement needed to be active and no such active withdrawal occurred in this case.
Nike sued Already for trademark infringement and Already countersued to declare the trademark invalid. Nike executed a covenant not to sue which covered all claims and demands involving the shoes in questions and any colorable imitating the shoes in question. Over Already’s objections, the district court dismissed the case as moot and the Second Circuit affirmed. The court unanimously affirmed. It held that the broad convent not to sue which covered past and future shoes met the demanding standard of mootness by voluntary cessation particularly as Already has no plans to develop or market shoes which infringe on the trademark. The Court rejected participation in the shoe industry and the chilling effect of the trademark on the investment decisions of others as grounds for standing as neither meets the particularity requirement for standing. Four justices added a concurrence emphasizing that the burden is on the executor of the covenant not to sue to prove mootness and cautioning courts to hold such plaintiffs to the high standard in order to prevent the sue and covenant route to become a means of enabling trademark holders to use suits as strategic weapons to disrupt competitor’s business relationships.