US Supreme Court

Anticompetitive practices

The US Supreme Court immunizes from antitrust liability pricing-fixing agreements of a legitimate joint venture (Texaco/Dagher)
University of Central Florida - Department of Legal Studies
Something Radical is Afoot: Texaco, Inc. v. Dagher and the Revolutionary Treatment of Price Fixing in the Joint Venture Context* This article analyzes a 2006 decision by the U.S. Supreme Court in Texaco, Inc. v. Dagher, which immunized joint venturers from antitrust liability for fixing the (...)

The US Supreme Court reaffirms the Court’s 51-year-old rule precluding patent owners from collecting patent royalties on expired patents (Kimble / Marvel)
Constantine Cannon (Washington)
Supreme Court Cites Spiderman In Ruling Against Post-Expiration Patent Royalties* Spiderman swung through the halls of the U.S. Supreme Court yesterday as Justice Elena Kagan liberally relied on the comic book superhero in the Court’s decision in Kimble v. Marvel Enterprises, Inc., reaffirming (...)

The US Supreme Court declines to accept an appeal for two related antitrust cases involving an international price-fixing cartel (Motorola / AU Optronics)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Motorola and the Extraterritorial Application of US Antitrust Laws to Foreign Component Price Fixing Cartels* Last month the Supreme Court declined to accept an appeal for two related antitrust cases involving an international price-fixing cartel. The cases come from different circuits, one (...)

The US Supreme Court declines to resolve a closely watched circuit split on the applicability of the Foreign Trade Antitrust Improvements Act (Motorola / AU Optronics)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Supreme Court Surprises the Antitrust World with Denial of Cert in Motorola and AU Optronics* Today the United States Supreme Court denied certiorari in two cases, Motorola Mobility LLC v. AU Optronics et al. and Hsiung and AU Optronics Corp. America Inc. v. United States, declining to resolve (...)

The US Supreme Court hears arguments before deciding on whether post-expiration license royalty obligations are caught in the web of patent policies or antitrust analysis (Kimble / Marvel)
Constantine Cannon (Washington)
Supreme Court Seeks To Untangle Patent And Antitrust Principles Caught In Spider-Man’s Web* The Supreme Court heard oral argument today on whether litigation over a toy based on Spider-Man’s web should be used to vanquish a 50-year-old precedent precluding patent owners from collecting patent (...)

The US Supreme Court is given the possibility to clarify the application of the Foreign Trade Antitrust Improvement Act (Motorola / AU Optronics)
Wolters Kluwer (Riverwoods)
Supreme Court Has Opportunity to Clarify Application of Foreign Trade Antitrust Improvements Act* Last week, the U.S. Supreme Court was asked, in parallel petitions, to resolve a split between the Seventh Circuit and the Ninth Circuit on the application of the federal antitrust laws to a (...)

The US Supreme Court decides on whether nominally public body must show “active supervision” by the state government to enjoy antitrust immunity (North Carolina State Board of Dental Examiners)
Cleveland-Marshall School of Law
North Carolina Dentists is in the Hizzouse, Y’all! Woot Woot!* So, the only real surprise about yesterday’s opinion in North Carolina State Bd of Dental Examiners v. FTC is that it wasn’t unanimous. The strongly worded six-member majority opinion, already receiving early applause (see here and (...)

The US Supreme Court holds that state agencies that are controlled by active market participants are not immune from antitrust laws unless the state also provides active supervision (North Carolina State Board of Dental Examiners)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Supreme Court Rules NC Dentist Board Not Immune From Antitrust Scrutiny* Earlier this morning, in a 6-3 decision, the Supreme Court ruled that state professional boards comprised of active market participants are not immune from antitrust laws even though the boards are formally designated as (...)

The US Supreme Court redefines the standard of appellate review for claim construction (Teva)
White & Case (Palo Alto)
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White & Case (Palo Alto)
On January 20, 2015, the United States Supreme Court redefined the standard of appellate review for claim construction. In Teva Pharm. USA, Inc. v. Sandoz, Inc., the Supreme Court vacated well-established Federal Circuit precedent that applied de novo review to all aspects of claim (...)

The US Court of Appeals for the 7th Circuit reminds companies that they cannot forum shop (Motorola / AU Optronics)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Seventh Circuit to Motorola: No Rehearing En Banc* On December 1, 2014, we wrote about the Seventh Circuit’s decision in Motorola Mobility LLC v. AU Optronics Corp., which affirmed dismissal of the vast majority of Motorola’s claims regarding LCD panels. Motorola filed a petition for rehearing (...)

The US Court of Appeals for the 7th Circuit rules that a cellphones manufacturer cannot recover overcharges to its non-U.S. subsidiaries that purchased price-fixed LCD panels abroad, even though finished cellphones incorporating those panels were ultimately sold in the U.S. (Motorola / AU Optronics)
Quinn Emanuel Urquhart & Sullivan (Brussels)
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Office of Attorney General
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Winston & Strawn (Washington)
The Seventh Circuit Court of Appeals ruled that Motorola cannot recover overcharges to its non-U.S. subsidiaries that purchased price-fixed LCD panels abroad, even though finished cellphones incorporating those panels were ultimately sold in the United States. The Court held that (...)

The US Court of Appeals for the 7th Circuit holds that it is fair to require foreign subsidiaries of American companies to seek a remedy in the courts of the country in which they choose to incorporate (Motorola / AU Optronics)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Seventh Circuit Affirms Dismissal of 99% of Motorola’s Claims in LCD Case Based on Motorola’s Lack of Standing* On the day before Thanksgiving—less than two weeks after oral argument—the Seventh Circuit issued its ruling on Motorola’s interlocutory appeal in Motorola Mobility LLC v. AU Optronics (...)

The US Supreme Court hears oral arguments before interpreting the state action exemption to the antitrust laws (North Carolina Board of Dental Examiners)
University of Michigan
On October 14, 2014, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws. Dozens of amici have written briefs supporting both parties. Those briefs (...)

The US Court of Appeal for the 9th Circuit gives the antitrust division another victory in a cartel case and provides further guidance on the FTAIA (AU Optronics)
Paul Hastings (San Francisco)
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Paul Hastings (Washington)
Overview In a victory for the U.S. government, the Ninth Circuit last Thursday affirmed criminal price-fixing convictions of AU Optronics, Inc. (“AUO”), a Taiwanese-based company, and two of its senior executives arising from alleged price-fixing of LCD panels. The decision, and underlying (...)

The US Court of Appeals for the 9th Circuit holds that import trade automatically falls within the scope of the Sherman Act and is not excluded by the FTAIA and that, under the Alternative Fine Statute, “gross gain” means gains by all participants in a conspiracy (AU Optronics)
Weil, Gotshal & Manges (New York)
Ninth Circuit Weighs in on FTAIA and Alternative Fine Statute* The Ninth Circuit recently affirmed a $500 million fine for AU Optronics (“AUO”) in the long-running liquid crystal display panel cartel case, and clarified its interpretation of the Foreign Trade Antitrust Improvements Act (...)

The US Court of Appeals for the 9th Circuit affirms a $500 million fine against a Taiwanese electronics manufacturer for conspiring to fix prices of thin-film transistor-liquid crystal display (AU Optronics)
Wolters Kluwer (Riverwoods)
Convictions, $500 Million Fine Upheld in Price Fixing Case Against AU Optronics; Foreign Trade Antitrust Improvements Act No Bar* The U.S. Court of Appeals in San Francisco last week upheld the price fixing convictions of Taiwanese electronics manufacturer AU Optronics (AUO), its U.S. (...)

The US Supreme Court grants petition in a case concerning alleged exclusion of non-dentists from offering tooth-whitening services (North Carolina Board of Dental Examiners)
Orrick, Herrington & Sutcliffe (San Francisco)
U.S. Supreme Court to Decide When Professional Licensing Bodies Have Antitrust Immunity* The state action immunity doctrine shields private actors from antitrust liability if their activities are actively supervised by a state. But arms of the state itself generally don’t have to satisfy the (...)

The US Supreme Court holds that “reverse payment” patent settlements between brand-name drug manufacturers and would-be generic competitors should be reviewed under the antitrust rule of reason (Actavis)
Arnold & Porter (Brussels)
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Arnold & Porter (Washington)
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Arnold & Porter (Washington)
On Monday, June 17, the Supreme Court handed down a decision in FTC v. Actavis, Inc., bringing some clarity to the antitrust treatment of so-called reverse payment patent settlements between brand-name drug manufacturers and would-be generic competitors, but leaving many open questions as (...)

The US Supreme Court establishes a rule that blurs the lines between antitrust and patent law (Actavis)
Sheppard Mullin (Chicago)
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Sheppard Mullin (Washington)
FTC v. Actavis: What Does It Mean for Reverse-Payment Settlements?* On June 17, 2013, the United States Supreme Court announced a rule that blurs the lines between antitrust and patent law in the context of Hatch-Waxman litigation. In FTC v. Actavis, 570 U.S. 756 (2013), the Federal Trade (...)

The US Supreme Court opens reverse payment patent settlement agreements to antitrust challenge (Actavis)
Wolters Kluwer (Riverwoods)
A “reverse payment” settlement agreement is not entitled to “near-automatic antitrust immunity” simply because its anticompetitive effects fall within the scope of the exclusionary potential of the patent, the U.S. Supreme Court ruled earlier this week in a five-to-three decision. Although such (...)

The US Supreme Court holds that patent protection does not confer immunity from antitrust attack (Actavis)
Stanford University - Stanford Law School
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RSM US
U.S. Supreme Court reverses Eleventh Circuit opinion in FTC v. Actavis, Inc* On 17 June 2013, the U.S. Supreme Court (“the Court”) reversed a decision by the Court of Appeals (Eleventh Circuit). The Court of Appeals had upheld a dismissal of a complaint made by the Federal Trade Commission (...)

The US Supreme Court rules that the “pay for delay” settlements in the pharmaceutical sector are to be analyzed under the rule of reason (Actavis)
European Commission - DG Internal Market and Services
Facts In 1999, Solvay Pharmaceuticals filed a New Drug Application (NDA) for a topical testosterone hormone drug, called Androgel. In 2003, Solvay obtained patent protection for it. Subsequently, the generic companies Actavis (before Watson Pharmaceuticals) and Paddock Laboratories filed an (...)

The US Supreme Court holds that reverse-payment patent settlements should be reviewed under the antitrust rule of reason (Actavis)
O’Melveny & Myers (Washington)
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O’Melveny & Myers (Los Angeles)
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O’Melveny & Myers (Los Angeles)
But Decision Raises as Many Questions as it Answers The Supreme Court yesterday held that it may be unlawful under the antitrust laws for a brand-name drug manufacturer to resolve patent litigation against an allegedly infringing generic drug maker by paying the generic to forestall market (...)

The US Supreme Court rules that a payment by a patentee to a generic manufacturer may constitute an infringement of antitrust law (Actavis)
Orrick, Herrington & Sutcliffe (San Francisco)
Why FTC v. Actavis Won’t Shift the Border Between IP and Antitrust Law* The Supreme Court’s recent decision in Federal Trade Commission v. Actavis, Inc., No. 12-416, ___ U.S. ___ (2013), has generated a lot of commentary recently. Some articles have suggested that the decision may expose certain (...)

The US Supreme Court issues first ruling on antitrust legality of reverse-payment drug patent settlements (Actavis)
Rutgers University
On June 17, 2013, in FTC v. Actavis, the U.S. Supreme Court for the first time examined the antitrust legality of agreements by which brand-name drug companies pay generics to delay entering the market. Justice Stephen Breyer wrote the majority opinion for five Justices, concluding that these (...)

The US Supreme Court grants certiorari to consider the legality of reverse payment settlements (Actavis)
Stanford University - Stanford Law School
U.S. Supreme Court grants certiorari to consider the legality of reverse payment settlements* On 7 December 2012 the U.S. Supreme Court granted a petition to consider whether reverse payment settlement agreements are per se lawful or presumptively anti-competitive. In the case (U.S. Federal (...)

The US Supreme Court reviews Eleventh Circuit’s decision regarding reverse payment patent settlements (AndroGel)
Gibson Dunn (New York)
Important U.S. Developments Relating to “Reverse Payment” Patent Settlements* There have been two key recent developments in the U.S. relating to the legal dispute over patent settlements including so-called “reverse payments.” First, the U.S. Supreme Court has agreed to review an Eleventh Circuit (...)

The US Supreme Court declines a petition for review in an antitrust case related to multiple listing service (Realcomp II)
Wolters Kluwer (Riverwoods)
Antitrust Decision from Supreme Court Unlikely During Current Term* It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court (...)

The US Supreme Court denies petition to review alleged antitrust conspiracy case in the health care sector (UPMC / West Penn Allegheny Health System)
Wolters Kluwer (Riverwoods)
Antitrust Decision from Supreme Court Unlikely During Current Term* It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court (...)

The US Supreme Court denies petition to review conviction for conspiring to obstruct justice in a price-fixing investigation in carbon products industry (Norris)
Wolters Kluwer (Riverwoods)
Antitrust Decision from Supreme Court Unlikely During Current Term* It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court (...)

The US Supreme Court denies petition to review antitrust price-fixing case in the gasoline industry (Refined petroleum products antitrust litigation)
Wolters Kluwer (Riverwoods)
Antitrust Decision from Supreme Court Unlikely During Current Term* It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court (...)

The US Supreme Court declines to review a Second Circuit ruling permitting a reverse-payment settlement between branded and a generic pharmaceutical manufacturers (Lousiana Wholesale Drug / Bayer)
Vinson & Elkins (Washington)
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Reese Gordon Marketos
A growing consensus among federal courts that so-called “reverse-payment” settlements rarely violate antitrust law has not tempered antitrust enforcement authorities’ opposition to such deals. In the pharmaceutical industry, brand-name drug manufacturers may file patent infringement lawsuits (...)

The US Supreme Court holds that teams of the national football league engaged in concerted practices (NFL)
Stanford University - Stanford Law School
U.S. Supreme Court holds licensing activities of NFL teams were joint conduct subject to § 1 Sherman Act* On 24 May 2010 the U.S. Supreme Court held that teams of the National Football League (“NFL”) engaged in concerted action subject to Section 1 Sherman Act when licensing their intellectual (...)

The US Supreme Court rejects special sports league exemption from antitrust scrutiny adopting a narrow view of Copperweld immunity (American Needle / National Football League)
Jones Day (New York)
The U.S. Supreme Court adopts a narrow view of Copperweld immunity in American Needle, Inc. v. National Football League Section 1 of the Sherman Antitrust Act is, in important ways, extraordinary in its simplicity. It broadly prohibits all agreements—“[e]very contract, combination . . . or (...)

The US Supreme Court reverses the lower court’s decisions addressing the issue of single entity notion under antitrust law (American Needle / National Football League)
University of Pennsylvania (Philadelphia)
American Needle, Inc. v. National Football League* In American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2010), the Supreme Court held that the NFL acting through its incorporated subsidiary NFL Properties, Inc. (NFLP) was not a single entity but rather a combination of its 32 (...)

The US Supreme Court finds that a football league and its members should not be treated as a single entity (American Needle / National Football League)
Tesoro
American professional sports associations such as the National Basketball Association (NBA), the National Football League (NFL), the National Hockey League (NHL), and the Major League Baseball (MLB) generate significant economic activity. In 2010, their combined revenue exceeded $21 billion and (...)

The US Supreme Court applies functional test to determine whether joint venture activity triggers antitrust liability (American Needle / National Football League)
White & Case (New York)
Introduction Section 1 of the Sherman Act outlaws contracts, combinations and conspiracies that unreasonably restrain trade. Therefore, to establish liability under Section 1, it is necessary to show a plurality of actors in agreement; there can be no contract, combination or conspiracy with (...)

The US Supreme Court sets aside Dr. Miles rule on resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leeging)
Grant & Eisenhofer
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Porter Wright Morris & Arthur (Washington)
Dr. Miles: Will the Supreme Court Find a Cure?* On December 7, 2006, the U.S. Supreme Court agreed to hear Leegin Creative Leather Products, Inc. v. PSKS, Inc.,which presents the Court with an opportunity to address the per se minimum resale price rule established almost a century ago in Dr. (...)

The US Supreme Court overrules prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices as a per se violation (Leegin Creative)
Kozyak Tropin and Throckmorton Law Firm
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Vertical Price Agreements in the Wake of Leegin v. PSKS: Where Do We Stand Now?* I. INTRODUCTORY REMARKS For nearly a century, agreements between retailers and suppliers stipulating a minimum retail price were considered per se violations of the Sherman Act. Resale price maintenance (“RPM”) (...)

The US Supreme Court reverses the 96 year old-doctrine governing resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leegin Creative)
Hahn Loeser & Parks (Columbus)
Introduction In the summer of 2007, the United States Supreme Court overruled a ninety-six year old precedent when it overruled the historical decision of Dr. Miles in Leegin Creative Leather Products, Inc. v. PSKS, Inc.. Relying on economists’ views, the majority took a drastic measure and (...)

The US Supreme Court overturns its long-standing prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices (Leegin Creative)
White & Case (Washington)
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White & Case (Washington)
This article is part of a set of 5 articles released in Concurrences N°3-2008: Resale price regulation: Leegin and much more * The authors gratefully acknowledge the contributions of summer associates Christel Green and Aaron McAllister. I. Introduction 1. In 2007, the Supreme Court of the (...)

The US Supreme Court overrules the nearly 100-year-old per se prohibition of vertical minimum price restraints finding that they are to be judged by the rule of reason (Leegin Creative)
Berlin Freie Universität
I. Background After the per se prohibition of non-price vertical restraints and of maximum resale price maintenance have long been abolished by overruling Supreme Court decisions [Continental T.V. v. GTE Sylvania Inc., 433 U.S. 36 (1977) and State Oil v. Kahn, 522 U.S. 3 (1997)], Leegin is the (...)

The US Supreme Court redefines notice pleading and clearly raises the bar for plaintiffs in private antitrust conspiracy claims (Bell Atlantic/Twombly)
St. John’s University School of Law
Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler and the Uncertain Future of Antitrust Enforcement* The Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is a watershed ruling whose impact on private litigation, especially antitrust (...)

The US Supreme Court defines minimum pleading standard in antitrust class action (Bell Atlantic/Twombly)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
In a 7-2 decision on May 21, 2007, the Supreme Court held that a complaint alleging antitrust conspiracy based on parallel conduct alone fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). Bell Atlantic Corp. v. Twombly, No. 05-1126. Further, the Court held that a bare (...)

The US Supreme Court holds that an allegation of parallel conduct and a bare assertion of an agreement don’t suffice to state a claim of conspiracy under the Sherman Act (Bell Atlantic / Twombly)
Paul Hastings (New York)
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Paul Hastings (New York)
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INTRODUCTION On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In Bell Atlantic Corp. v. Twombly, No. 05‐1126, the Supreme Court (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana - Maurer School of Law
Pleading Consumer Antitrust Claims* The U.S. has long followed a system of private enforcement of law meant to redress public harm. In the law of antitrust, from the very beginning U.S. law provided a claim to plaintiffs who could show harm flowing from the violation. Convincing private (...)

The US Supreme Court reaffirms market power requirement to determine a tying arrangement as per se unlawful (Independent Ink)
BakerHostetler (Washington)
Are tying arrangements illegal per se?* In the deep, dark antitrust dungeon reserved for per se offenses, only one species of conduct remains that does not involve a horizontal conspiracy: tying arrangements. Minimum resale pricing agreements tunneled their way out thanks to the Supreme (...)

The US Supreme Court rules unanimously that the joint venture’s unified price between two companies’ brands of gasoline was not a price-fixing in violation of s. 1 of the Sherman Act (Texaco / Dagher)
Paul Hastings (Washington)
Joint Ventures and The Supreme Court’s Decision in Texaco, Inc V Dagher: A Win for Substance Over Form* NOTE: In the summer of 2004, the Court of Appeals for the Ninth Circuit issued its opinion in Dagher v. Saudi Refining, Inc., holding that the decision of a legitimate joint venture between (...)

The US Supreme Court overturns a Court of Appeals decision clarifying that pricing decisions of a fully integrated joint venture that eliminates competition between the partners is not subject to Section 1 of the Sherman Act (Dagher / Texaco)
WilmerHale (Washington)
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WilmerHale (Washington)
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Matheson Keys & Kordzik
The Supreme Court issued two unanimous opinions in antitrust cases. These are the second and third antitrust opinions of the Term; in recent years the Court has taken one or at most two antitrust cases per Term, so this reflects a greater than usual level of antitrust activity at the (...)

The US Supreme Court overturns a lower court decision for the plaintiff but reiterates the traditional method of proving secondary line price injuries under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Seattle University
The Robinson-Patman Act and Consumer Welfare: Has Volvo Reconciled them?* The Robinson-Patman Act is the black sheep of antitrust. Unlike the other antitrust laws, its fundamental goal is not to preserve competition in order to benefit consumers, but to limit competitive rivalry in order to (...)

The US Supreme Court reverses a lower court’s decision clarifying competitive injury and secondary price line discrimination under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Mayer Brown (New York)
Competitive Injury and Price Discrimination in the United States* In Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., the Supreme Court provided guidance on whether, under the Robinson-Patman Act, a manufacturer may offer one dealer better prices than another dealer when those (...)

The US Supreme Court prevents foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
St. John’s University School of Law
The FTAIA and Empagran: What Next?* In F. Hoffman LaRoche Ltd. v. Empagran S.A., 542 US 155 (2004), the Supreme Court limited access to American courts by foreign plaintiffs suing under the Sherman Act based on foreign transactions. Jurisdiction over foreign antitrust claims is governed by (...)

The US Supreme Court blocks foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On June 14 2004, in a unanimous judgment, the Supreme Court blocked foreign plaintiffs from bringing an antitrust claim in U.S. courts seeking damages based on higher foreign prices that are allegedly independent of the domestic effects of higher domestic prices. However, the case was remanded (...)

The US Supreme Court restricts the applicability of US antitrust laws with regard to injuries suffered abroad holding that foreign nations can preserve competition without American interference (Hoffman-La Roche / Empagran)
IRS Office of Chief Counsel
F. Hoffman-La Roche Ltd. v. Empagran S.A.: The Supreme Court Trusts That Foreign Nations Can Preserve Competition Without American Interference* In F. Hoffman-La Roche Ltd. v. Empagran S.A., the United States Supreme Court held that United States courts do not have jurisdiction over claims of (...)

The US Supreme Court rules that the Sherman Act does not apply to claims arising solely out of the foreign effect of a global cartel (Hoffman-LaRoche / Empagran)
Jones Day (Washington)
As economic globalization marches on, one question that emerges repeatedly is how far the U.S. legal system can and should reach beyond its own borders. Answering that question has become particularly urgent in antitrust enforcement, as the effects of cartels and business practices increasingly (...)

The US Supreme Court overrules 30-year old precedent and declares maximum resale price maintenance agreements should be reviewed under the rule of reason in a case against a gasoline wholesaler (State Oil / Khan)
Greenberg Traurig (Dallas)
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Baker Botts (Washington)
Three years ago this summer, the U.S. Supreme Court abandoned the 100 year-old Dr. Miles doctrine that established a rule of per se illegality for minimum resale price maintenance (RPM) agreements in favor of the more lenient “rule of reason” test. Leegin Creative Leather Products, Inc. v. PSKS, (...)

The US Supreme Court prohibits an association from imposing conditions on its members’ televised events, finding that such conditions violate antitrust laws in the market for college football (NCAA/Bd. of Regents of the Univ. of Okla.)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Supreme Court declared that the National Collegiate Athletic Association’s (“NCAA”) restrictions on televised college football games should be assessed under a rule of reason analysis, but still ultimately found that the limitations violate the Sherman Act. The Court refused to apply a (...)

The US Supreme Court rejects the attempt to justify a restrictive practice on the basis of the potential threat that competition poses to the public safety and the professional ethics (National Society of Professional Engineers)
Bona Law (San Diego)
Classic Antitrust Cases: National Society of Professional Engineers v. United States, 435 U.S. 679 (1978)* As an antitrust attorney, over time you see the same major cases cited again and again. It is only natural that you develop favorites. Here at The Antitrust Attorney Blog, we will, from (...)

The US Supreme Court finds agency relationship between a manufacturer and its distributors to be a sham amounting to Resale Price Maintenance (RPM) focusing on the competitive effects and the purpose behind the agreements (Simpson / Union Oil)
United First Partners
Introduction Under the U.S. antitrust laws a manufacturer is free to set the prices at which it sells its own goods and is free to use intermediaries to facilitate the sales. When intermediaries come into the picture, however, one of the antitrust issues that may arise is whether, on the one (...)

The US Supreme Court finds a genuine agency relationship between a manufacturer and its distributors focusing on the form of consignment contracts and the parties’ actual practices (General Electric)
United First Partners
Introduction Under the U.S. antitrust laws a manufacturer is free to set the prices at which it sells its own goods and is free to use intermediaries to facilitate the sales. When intermediaries come into the picture, however, one of the antitrust issues that may arise is whether, on the one (...)

The US Supreme Court issues an opinion allowing a supplier to establish a system of resale prices enforced by unilateral refusal to deal (Colgate)
United First Partners
In a brief and unanimous decision in United States v. Colgate & Co., the Supreme Court announced in 1919 that in the absence of any purpose to create or maintain a monopoly, the Sherman Act “does not restrict the long recognized right of trader or manufacturer engaged in an entirely private (...)

The US Supreme Court holds it is per se illegal for a manufacturer to set minimum resale prices in agreements with independent resellers (Dr. Miles Medical / John D. Park & Sons)
Baker Botts (Washington)
In 1911, the U.S. Supreme Court in Dr. Miles Medical Co. v. John D. Park & Sons Co. held that a manufacturer’s setting the minimum prices at which independent resellers may resell its products was unlawful under the common law and Section 1 of the Sherman Act.That result spawned the (...)

Dominance

The US Supreme Court reverses the judgment of the 11th circuit and leaves the structuring of the rule of reason antitrust litigation to the lower courts (Actavis)
Cleveland-Marshall School of Law
Just What on Earth Did Actavis Really Say? And Does It Mean Something for Section 1 More Broadly?* It’s going to be a strict, nearly-per-se quick look rule, folks, in more or less every reverse-payment case likely to be brought from here on out. Dollars-to-donuts. A few weeks have gone by, (...)

The US Supreme Court declines to hear antitrust case leaving uncertainty regarding customer loyalty programs (Eaton/ZF Meritor)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Supreme Court Declines to Hear Antitrust Case Leaving Uncertainty Regarding Customer Loyalty Programs* On April 29, 2013, the Supreme Court declined to review a decision that had created uncertainty as to when a manufacturer’s customer loyalty program may violate antitrust laws. Most circuits (...)

The US Supreme Court denies defendants’ petition for certiorari with respect to a decision of the Third Circuit raising significant issues as to how a court should analyze “market share discounts” by a dominant firm (ZF Meritor v. Eaton)
Cornell University
On April 29, 2013, the U.S. Supreme Court denied defendant’s petition for certiorari with respect to the Third Circuit’s 2012 decision in ZF Meritor LLC v. Eaton Corp. (696 F.3d 254). Since the case raised significant issues as to how a court should analyze “market share discounts” by a dominant (...)

The US Supreme Court reverses the decisions of the lower courts and emphasizes that any model supporting a plaintiff’s damages case must be consistent with its liability case (Comcast / Behrend)
Sheppard Mullin (Washington)
Comcast v. Behrend Sets a Higher Bar for Class Certification* On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of (...)

The US Supreme Court affirms that when a regulatory structure aiming to deter and remedy anti­-competitive harm prevails, the costs of antitrust enforcement are likely to be greater than the benefits (Pacific Bell Telephone / Linkline Communications)
Sheppard Mullin (Los Angeles)
Supreme Court Restricts “Price-Squeeze” Claims Under Section 2 of the Sherman Act to Situations Where the Defendant has an Antitrust Duty to Deal* In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. (...)

The US Supreme Court rejects antitrust liability for price-squeeze by integrated dominant firms in the telecommunication industry illustrating deep suspicion about the institutional players in the antitrust system (Pacific Bell / linkLine)
University of Michigan
linkLine’s Institutional Suspicions In this essay, I review the Supreme Court’s most recent monopolization decision—Pacific Bell v. linkLine—with a focus on the suspicions between the various institutions that had a hand in the case. I. The linkLine Decision The linkLine decision continues the (...)

The US Supreme Court overturns the Ninth District Court’s decision adopting a new two-part standard for assessing "price-squeeze" antitrust claims (Pacific Bell/linkLine)
Akin Gump Strauss Hauer & Feld (Washington)
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Haug Partners (New York)
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Winston & Strawn (New York)
The Supreme Court recently issued a unanimous decision in a notable "price-squeeze" case under § 2 of the Sherman Act involving rival telecom companies. Pacific Bell Tel. Co. v. Linkline Commc’ns, Inc., No. 07-512 (Feb. 25, 2009). The Court held that a vertically integrated company that had no (...)

The US Supreme Court rejects "Price-Squeezing" theory of liability (Pacific Bell / linkLine)
White & Case (New York)
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On February 25, 2009, the Supreme Court firmly rejected the so-called "price-squeeze" theory of antitrust liability, under which a vertically integrated firm with monopoly power in an upstream market could be found to violate Section 2 of the Sherman Act by selling the upstream product at so (...)

The US Supreme Court rejects the price squeeze theory, noting that the upstream and downstream claims should be considered separately (Pacific Bell / linkLine)
Allen & Overy (New York)
Introduction In Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc. the U.S. Supreme Court considered whether a vertically integrated firm with market power in a wholesale market that competes with its customer downstream in a retail market was prohibited under Section 2 of the Sherman Act from (...)

The US Supreme Court finds implied antitrust immunity in regulated securities industry related claims (Credit Suisse Securities / Billing)
Lytle Soulé & Curlee
Securities Law and Antitrust Law: Two Legal Titans Clash Before the United States Supreme Court in Credit Suisse v. Billing* Because of the inherent tension between antitrust law on one hand and industry-specific regulations on the other, the United States Supreme Court has often been called (...)

The US Supreme Court rules that federal securities laws implicitly preclude application of antitrust law to regulated securities industry related claims (Credit Suisse Securities / Billing)
Dentons (Washington)
Credit Suisse v. Billing: The Limited Impact on Application of Antitrust Laws in Federally Regulated Industries Following the 2008 Financial Crisis and Beyond* In Credit Suisse v. Billing, the Supreme Court of the United States considered whether antitrust laws were implicitly precluded from (...)

The US Supreme Court rules that federal and state antitrust claims related to certain IPOs are preempted by federal securities laws (Credit Suisse Securities/Billing)
Winston & Strawn (New York)
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Haug Partners (New York)
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Winston & Strawn (New York)
In a decision announced earlier today, the United States Supreme Court held that federal securities laws implicitly preclude the application of antitrust laws to claims filed against ten leading investment banks over alleged conduct on initial public offerings during the technology boom of the (...)

The US Supreme Court recognizes a limited claim for predatory bidding (Weyerhaeuser)
Penn State University
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University of Florida
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.: The U.S. Supreme Court Recognizes a Limited Claim for Predatory Bidding* Monopsony is the negative image of monopoly. Narrowly defined, it is the structural condition in which a well-specified good or service has only one buyer. But just (...)

The US Supreme Court extends monopoly predatory pricing standards to monopsony predatory bidding practices (Weyerhaeuser)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On February 20, the U.S. Supreme Court issued a significant opinion in which it concluded that the test it had set forth previously to govern predatory pricing cases applies also to cases involving allegations of predatory bidding. See Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., (...)

The US Supreme Court clarifies that the test for predatory pricing also applies to situations of predatory bidding (Weyerhaeuser, Ross-Simmons Hardwood Lumber)
Perkins Coie (New York)
The general legal standard for determining whether unilateral conduct violates Section 2 of the Sherman Act. is murky, to say the least. Many courts have employed a “totality of the circumstances” approach, leaving it to the jury to decide whether, on balance, a particular business practice is (...)

The US Supreme Court strikes down patent market power presumption in tying cases (Illinois Tool Works)
WilmerHale (Washington)
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WilmerHale (Washington)
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Matheson Keys & Kordzik
The Supreme Court issued two unanimous opinions in antitrust cases. These are the second and third antitrust opinions of the Term; u.S. ---, 1-6 S.Ct. 860 (-006), involved the robinson-Patman act. in recent years the Court has taken one or at most two antitrust cases per Term, so this (...)

The US Supreme Court introduces a new method for regulatory antitrust analysis (Trinko / Verizon)
K&L Gates (Pittsburgh)
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K&L Gates (Pittsburgh)
A New Method for Regulatory Antitrust Analysis? Verizon Communications v. Trinko* In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), the United States Supreme Court adopted a novel method for applying the antitrust laws in regulated markets and thereby (...)

Mergers

The US Supreme Court confirms the narrow scope of "State Action" doctrine (FTC v. Phoebe Putney)
Jones Day (Washington)
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Jones Day (Washington)
In FTC v. Phoebe Putney, the Supreme Court has unanimously reversed the Eleventh Circuit holding that a Georgia hospital authority’s acquisition of a hospital was covered by state-action immunity, emphasizing that "state-action immunity is disfavoured". The Supreme Court held that, as the State (...)

Procedures

The US Supreme Court holds that the Natural gas Act does not preempt State law antitrust claims (Oneok / Learjet)
Orrick, Herrington & Sutcliffe (San Francisco)
SCOTUS Holds Natural Gas Act Does Not Preempt State Law Antitrust Claims* In Oneok, Inc. v. Learjet, Inc., Case No. 13-271 (Apr. 21, 2015), the U.S. Supreme Court held that the Natural Gas Act did not preempt retail customers’ state law antitrust claims against interstate gas pipeline operators (...)

The US Supreme Court holds that the Natural Gas Act did not “field” preempt state law antitrust claims for price fixing (Oneok / Learjet)
Wolters Kluwer (Riverwoods)
Divided Supreme Court Allows State Law Antitrust Claims to Proceed Against Pipelines, Rejects Field Preemption Argument* In a decision that’s received relatively little attention, a divided U.S. Supreme Court earlier this week held that the Natural Gas Act (NGA) did not “field” preempt state law (...)

The US Supreme Court allows appeal of terminated individual case from multi-district litigation proceeding (Gelboim / Bank of America)
Bona Law (San Diego)
US Supreme Court Allows Appeal of Terminated Individual Case from MDL Proceeding* The US Supreme Court just issued its decision in an antitrust case called Ellen Gelboim v. Bank of America Corporation. This case arises out of major multi-district litigation (an MDL) centered on allegations (...)

The US Supreme Court provides certainty to plaintiffs about the timing of their appeal in multidistrict litigations (Gelboim / Bank of America)
Siemens (New York)
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Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Supreme Court Revives LIBOR Antitrust Appeal in Gelboim et al. v. Bank of America Corp. et al.* On January 21, 2015, the Supreme Court of the United States issued a highly anticipated decision in a LIBOR-based antitrust class action suit allowing a plaintiff to immediately take a direct appeal (...)

The US Supreme Court grants certiorari and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed immediately, notwithstanding other cases still pending in the same proceeding (Gelboim/Bank of America)
Weil, Gotshal & Manges (New York)
Supreme Court to Review Appeal Issue in LIBOR Litigation* Contributing Author: Clayton Collett. Introduction The Supreme Court has granted certiorari in Gelboim v. Bank of America Corp. and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed (...)

The US Supreme Court gives judgment on the matter of overruling a legal precedent that relies on a no more valid economic theory (Halliburton / Erica John Fund)
Bona Law (San Diego)
What Does the Supreme Court’s Decision in Halliburton Co. v. Erica P. John Fund, Inc. Mean for Antitrust Law?* The defendants in Halliburton Co. v. Erica P. John Fund, Inc. failed to show the US Supreme Court the “special justification” necessary to overturn settled precedent. As we explained in (...)

The US Supreme Court clarifies standing requirements under the federal trademark law with possible implications for the antitrust claims (Lexmark International / Static Control Components)
Bona Law (San Diego)
Will the Supreme Court’s Lexmark Standing Decision Lead Indirect-Purchaser Antitrust Plaintiffs to Federal Court?* While waiting for my flight to leave San Diego on my way to Washington, DC for the ABA Antitrust Spring Meeting, I saw on Twitter—the best source for immediate Supreme Court (...)

The US Supreme Court affirms the judgment of the Court of Appeals for the Sixth Circuit and gives voice to criticism against the traditional standing test for antitrust claims (Lexmark International / Static Control Components)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Supreme Court Creates New Standing Test For Asserting False Action Claim Under Lanham Act* On March 25, 2014, the Supreme Court issued a unanimous opinion, authored by Justice Scalia, in Lexmark International, Inc. v. Static Control Components, Inc. In a previous post, I discussed my (...)

The US Supreme Court reviews a decision of a District Court in order to determine a party’s standing to maintain an action under Federal Trademark Law (Lexmark International / Static Control Components)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Supreme Court to Decide Requirements for Standing under Lanham Act* In the coming weeks, the Supreme Court will decide a case involving the proper framework for determining standing to maintain an action for false advertising under the Lanham Act. The case, Lexmark International, Inc. v. (...)

The US Supreme Court rules that a state attorney general asserting state law claims for injuries incurred by its citizens is not required to be removed to federal court under the Class Action Fairness Act (AU Optronics)
Wolters Kluwer (Riverwoods)
High Court Rejects Removal of Mississippi Antitrust Suit as Mass Action under Class Action Fairness Act* A price fixing action filed by the State of Mississippi as the sole named plaintiff was not a “mass action” under the Class Action Fairness Act (CAFA), even though the state sought (...)

The US Court of Appeals for the 7th Circuit reconfirms class certification post-Comcast (Butler/Sears Roebuck)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Purchasers of Kenmore washing machines brought class actions alleging products defects involving mold and defective control units. The district court certified the defective control unit class but refused to certify the mold class. On appeal, the Seventh Circuit reversed the refusal to (...)

The US Supreme Court reverses the judgment of the Court of Appeals and holds that the parties’ agreement on arbitration shall remain valid (American Express / Italian Colors Restaurant)
Faegre Baker Daniels (Indianapolis)
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Faegre Baker Daniels (Minneapolis)
Supreme Court Decides American Express Co. et al v. Italian Colors Restaurant et al* On June 20, 2013, the Supreme Court decided American Express Co. et al v. Italian Colors Restaurant et al, No. 12-133, reversing the Second Circuit and holding that the Federal Arbitration Act (FAA) does not (...)

The US Supreme Court upholds contractual provision waiving class arbitration (American Express / Italian Colors Restaurant)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Plaintiff merchants asserted antitrust tying claims against American Express, alleging that its “honor all cards” rule leveraged its monopoly power in the credit card market to force merchants to accept cards with higher interchange fees than they would have paid in the absence of that rule. (...)

The US Supreme Court rules that an arbitration agreement did not prevent effective vindication of antitrust rights (American Express / Italian Colors Restaurant)
Wolters Kluwer (Riverwoods)
Arbitration Agreement Did Not Prevent Effective Vindication of Antitrust Rights* Consumers and small businesses that are parties to contracts containing arbitration agreements will find it tougher, if not impossible, to avoid the terms of those agreements and pursue an antitrust action in (...)

The US Supreme Court vacates another no-injury washing machine class action (Butler)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On 3 June 2013, the U.S. Supreme Court summarily vacated and remanded the U.S. Court of Appeals for the Seventh Circuit’s decision in Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (...)

The US Court of Appeals for the 9th Circuit reverses a federal district court’s denial of class certification (Levya/Medline Industries)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Present and former employees of a medical products manufacturer sued under California labor and unfair practice laws for various time calculation practices that allegedly reduced their pay. The district court denied class certification on the basis that damage amounts for each employee would (...)

The US Supreme Court agrees to review a judicial decision as regards a suit alleging state consumer protection and antitrust claims against manufacturers and distributors of LCD panels (Mississippi/AU Optronics)
Wolters Kluwer (Riverwoods)
Removability of Parens Patriae Antitrust Actions Under CAFA To Be Considered by U.S. Supreme Court* It appears that the U.S. Supreme Court will soon resolve a split among the circuits on the issue of whether parens patriae actions can be removed from state court as “mass actions” under the Class (...)

The US District Court for the Eastern District of Tennesse denies motion to dismiss in antitrust case brought against drug makers (Skelaxin -Metaxalone- Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Plaintiff drug purchasers brought suit under federal and state antitrust laws, contending that the defendants had engaged in an unlawful scheme calculated to raise and maintain the prices of the drug Skelaxin through sham litigation, the filing of sham citizen petitions and unlawful horizontal (...)

The US Supreme Court vacates no-injury consumer class action (Whirlpool)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
The U.S. Supreme Court summarily vacated and remanded the Sixth Circuit’s decision in Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, No. 11-864, 2013 WL 1222646 (U.S. Mar. 27, 2013) (Comcast), which was decided last week. (...)

The US Supreme Court overturns class certification, upholdding Rule 23 “rigorous analysis” (Comcast / Behrend)
DLA Piper (Washington)
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GeyerGorey (Washington)
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DLA Piper (Dallas)
Comcast v. Behrend: Supreme Court overturns class certification, upholds Rule 23 “rigorous analysis”* In Comcast Corp. et. al. v. Behrend, et. al., the Supreme Court of the United States, in a 5-4 decision written by Justice Antonin Scalia, reaffirmed the Court’s recent holding in Wal-Mart v. (...)

The US Supreme Court applies class certification’s rigorous analysis also to causation and damages (Comcast / Behrend)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Plaintiff cable TV subscribers asserted Sherman Act conspiracy and monopolization claims, alleging that certain so-called “clustering transactions” that had the effect of reducing competition for cable television services in the Philadelphia region were agreements in restraint of trade. In (...)

The US Supreme Court confirms that courts must conduct a rigorous analysis to determine whether antitrust class action plaintiffs meet the requirements for class certification (Comcast)
Jones Day (Los Angeles)
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Jones Day (Washington)
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Jones Day (Chicago)
The U.S. Supreme Court has reaffirmed that courts must conduct a "rigorous analysis" to determine whether antitrust class action plaintiffs meet the requirements for class certification, even when that requires inquiry into the merits of the underlying claims, and individual issues of damages (...)

The US Supreme Court preserves the Class Action Fairness Act (Standard Fire / Knowles)
Jones Day (Los Angeles)
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Jones Day (Chicago)
On March 19, 2013, the U.S. Supreme Court held in Standard Fire Ins. Co. v. Knowles that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages. Although Standard Fire was not an antitrust case, the decision will (...)

The US Supreme Court holds that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages (Standard Fire Ins. v. Knowles)
Jones Day (Los Angeles)
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Jones Day (Chicago)
On March 19, 2013, the U.S. Supreme Court held in Standard Fire Ins. Co. v. Knowles that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages. Although Standard Fire was not an antitrust case, the decision will (...)

The US Supreme Court holds that proof of materiality is not a prerequisite to certification of a securities-fraud class action (Amgen/Connecticut Retirement Plans & Trust Funds)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
This case is not an antitrust case, nonetheless it has enormous precedential importance to class certifications in antitrust cases. Plaintiff securities purchasers brought suit under the federal securities laws, relying in order to establish common impact under Rule 23 on the (...)

The US Supreme Court limits state-action immunity in hospital merger (Phoebe Putney Health System)
Paul Hastings (San Francisco)
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Paul Hastings (San Francisco)
On February 19, 2013, the Supreme Court visited a corner of the antitrust map that it last glimpsed during the Reagan Administration—the state action doctrine. The case that prompted this sojourn, FTC v. Phoebe Putney Health System, Inc., arose when a hospital authority in Albany-Dougherty (...)

The US Supreme Court decides a case interpreting the doctrine of state action immunity from federal antitrust liability (Phoebe Putney Health System)
University of Indiana - Maurer School of Law
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University of Indiana - Maurer School of Law
I. The State Action Doctrine State Action immunity from the application of U.S. antitrust law was established by the U.S. Supreme Court’s decision in Parker v. Brown. Based on principles of federalism and deference to state powers to structure their own economic policy, the doctrine allows (...)

The US Supreme Court narrows "State-Action" doctrine in hospital merger challenged by the US FTC (Phoebe Putney)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
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General Electric (Washington)
In a unanimous decision issued on February 19, 2013, the U.S. Supreme Court ruled that the state-action doctrine did not immunize Phoebe Putney Health System’s acquisition of Palmyra Park Hospital in Albany, Georgia. The decision immediately was hailed by FTC Chairman Jon Leibowitz as "a big (...)

The US Supreme Court unanimously rejects a Georgia state-sanctioned hospital authority’s claim that its acquisition of a competing hospital was immune from antitrust scrutiny under the state-action doctrine (FTC / Phoebe Putney)
Cleveland-Marshall School of Law
Phoebe Putney: A Quick Post-Mortem, and Some Thoughts on the Next Justice Stevens* I often feel a certain deflation after the Supreme Court decides an antitrust case. After watching a case for months, prognosticating about it with other antitrusters, reading umpteen blog posts, reading the (...)

The US Supreme Court issues a decision addressing the pharmaceutical “use codes” and their impact on generic drugs approval process (Caraco)
Gibson Dunn (New York)
New U.S. Supreme Court Decision Addresses Pharmaceutical “Use Codes”* The U.S. Supreme Court recently issued a decision that provides generic pharmaceutical manufacturers with the ability to challenge the “use codes” listed by brand name manufacturers in filings made with the U.S. Food and Drug (...)

The US Supreme Court leaves in place third circuit rule welcoming challenges to foreign conduct into U.S. Courts (Animal Science)
Jones Day (Cleveland)
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Jones Day (Chicago)
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Jones Day (Chicago)
This week the U.S. Supreme Court announced it would not review a Third Circuit decision (Animal Science) that made it easier for antitrust plaintiffs to bring claims in U.S. courts for conduct occurring overseas under the Foreign Trade Antitrust Improvements Act (“FTAIA”). The Supreme Court’s (...)

The US Seventh Circuit clarifies the standards trial courts should use in evaluating expert testimony submitted in connection with class certification (Mesner/Northshore Univ. Health)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this opinion overturning the district court’s denial of class certification, the Seventh Circuit clarified the standards trial courts should use in evaluating expert testimony submitted in connection with class certification. The plaintiffs filed a motion seeking to exclude the defendant’s (...)

The US Supreme Court denies petition for certiorari brought by a drug manufacturer with respect to federal jurisdiction over antitrust class action claims (Lorazepam & Clorazepate Antitrust Litigation)
Wolters Kluwer (Riverwoods)
Antitrust Decision from Supreme Court Unlikely During Current Term* It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court (...)

The US Supreme Court holds that a claim for monetary relief shall not be certified under Federal Class Actions Rule, if it is not secondary to obtaining an injunction or declaration (Wal-Mart Stores / Dukes)
Sheppard Mullin (Los Angeles)
Wal-Mart v. Dukes: Implications For Antitrust Class Actions* On June 20, 2011, the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, No. 10-277, holding that 1.5 million female Wal-Mart employees around the nation could not bring discrimination claims under Title VII of the (...)

The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores/Dukes)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
This article has been selected for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision (...)

The US Supreme Court overturns a court of appeal’s decision in the mobile sector holding that federal law preempts state law banning class action waiver in arbitration agreements (AT&T Mobility/Concepcion)
Wolters Kluwer (Riverwoods)
Customers’ Efforts to Use Arbitration to Challenge AT&T/T-Mobile Merger Fail* Federal district courts around the country have blocked AT&T Mobility LLC customers from pursuing arbitration to challenge the merger of AT&T Mobility and T-Mobile USA Inc.—a transaction valued at (...)

The US Supreme Court holds that consumer arbitration clause containing a class action waiver is enforceable (AT&T Mobility, Concepcion)
White & Case (Miami)
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White & Case (Los Angeles)
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White & Case (Washington)
On April 27, 2011, the US Supreme Court issued the long-awaited opinion in AT&T Mobility, LLC v. Concepcion. (No. 09-893, 563 US ____, slip op. (April 27, 2011)) Justice Scalia’s majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, held that because (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Stolt-Nielsen/AnimalFeeds)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The US Court of Appeals for the Third Circuit gives green light to antitrust action against giant cablem provider (Comcast)
BakerHostetler (Philadelphia)
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DLA Piper (Philadelphia)
Experts Can Turn Tide in Class Certification—Federal judge gives green light to antitrust action against Comcast* A federal judge recently dealt another substantial and costly blow to Comcast in Behrend v. Comcast Corp., an antitrust lawsuit against the giant Philadelphia-based cable provider. (...)

The US Court of Appeals for the Third Circuit clarifies class certification standard (Hydrogen Peroxide Antitrust Litigation)
Haynes and Boone (Washington)
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FSG - Finance Scholars Group
In re Hydrogen Peroxide Antitrust Litigation Bleaches Clean the Class Certification Standard* With its December 30, 2008, decision in In re Hydrogen Peroxide Antitrust Litigation, the Third Circuit joins a growing list of U.S. Courts of Appeals that have clarified the responsibilities that (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Bell Atlantic / Twombly)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The US Supreme Court holds that mere parallel conduct in a complaint is insufficient to state a claim of conspiracy under the Sherman Act (Bell Atlantic / Twombly)
Jones Day (Washington)
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Jones Day (Atlanta)
In antitrust, the Supreme Court is on a roll. After giving scant attention to antitrust cases over the last two decades, the Supreme Court has now issued five substantive antitrust decisions in the last 17 months-one of the most intense periods of antitrust activity in the Court’s history. And (...)

The US Supreme Court holds that the sentencing guidelines may no longer mandate judges to enhance sentences beyond the statutory maximum unless the predicate facts supporting such enhancements are first proved by a jury beyond a reasonable doubt, or admitted by defendant (Booker)
Steptoe & Johnson (Washington)
On January 12, 2005, the US Supreme Court handed down a pair of landmark decisions that could fundamentally shift the balance of power for corporations facing criminal antitrust investigations from the Department of Justice (“DOJ”). In United States v. Booker and United States v. Fanfan, the (...)

The US Supreme Court validates a statute authorizing Federal Courts to order discovery for use in foreign proceedings (AMD, Intel)
Jones Day (Washington)
In Intel Corporation v. Advanced Micro Devices, Inc., the Supreme Court interpreted a statute that Congress enacted to assist « foreign tribunals » in obtaining evidence in the United States. Advanced Micro Devices (« AMD ») had filed an antitrust complaint against its chip-making competitor, (...)

The US Supreme Court holds that the US Postal Service is not a "person" under the antitrust laws, further limiting the role of antitrust in public and regulated industries (USPS / Flamingo)
Resources for the Future
USPS v. Flamingo Industries* In 2004, the US Supreme Court issued a decision in an antitrust case brought by Flamingo Industries against the United States Postal Service (USPS). Flamingo manufactured the sacks used by postal workers to hold the non-parcel mail that they carry and deliver to (...)

The US Supreme Court shields postal service from antitrust policy (USPS / Flamingo Industries)
Tauil & Chequer (in cooperation with Mayer Brown)
A producer of mail sacks that was one of the suppliers of the USPS sued the latter for terminating, without justification, their supply Agreement. The USPS has a dominant position in several postal markets in the US and was challenged under Section 2 of the Sherman Act (i.e., attempt to (...)

Regulations

The US Supreme Court grants petitions for writs of certiorari in a case dealing with the question whether a state regulatory board created by state law can be treated as a private actor under antitrust law (North Carolina Board of Dental Examiners)
Bona Law (San Diego)
Applying the Antitrust Laws to Anticompetitive State and Local Government Conduct* Update: The Supreme Court granted review in North Carolina Board of Dental Examiners v. FTC on March 3, 2014 Lawyers, judges, economists, law professors, policy-makers, business leaders, trade-association (...)

The US Supreme Court invalidates state laws in Michigan and New York, barring out of state wineries from selling directly to instate consumers, while allowing such sales by instate wineries (Granholm / Heald)
Sheppard Mullin (Los Angeles)
Supreme Court Rules Against State Law Bans On Interstate Direct Shipment Of Wine* On May 16, 2005, the United States Supreme Court struck down state laws in Michigan and New York, barring out of state wineries from selling directly to instate consumers, while allowing such sales by instate (...)

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