US Private Enforcement

Anticompetitive practices

A US District Court receives notification that the class plaintiffs, state plaintiffs and the defendant have reached an agreement concerning the lawsuit in the e-books prices fixing case (Apple)
DLA Piper Weiss-Tessbach (Vienna)
Apple settles with U.S. states and consumers in the e-books price fixing case* According to documents filed in a New York court on 16 June 2014, Apple has reached an agreement in principle with state governments and consumers who filed a class-action lawsuit in the e-books price fixing case (...)

A US Court of Appeals rejects antitrust claims finding that the injury preceded any domestic effect in the causal chain (Lotes / Hon Hai Precision Industry)
Wolters Kluwer (Riverwoods)
Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act* The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in (...)

A US District Court files an antitrust action against a boycott impeding private schools to compete on the markets for commercial exhibition of high school football contests and basketball contests in Virginia (Liberty Christian Academy / VHSL)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Do Public School Athletic Leagues Have To Admit Private High Schools?* Liberty Christian Academy (LCA), a private high school in Lynchburg, Virginia, has filed an antitrust action against the Virginia High School League (VHSL), a non-profit organization of public high schools in Virginia. The (...)

A US District Court receives a complaint on an allegation of anticompetitive agreements to exclude the plaintiff from the market for ownership of professional basketball franchises (Donald Sterling / NBA)
Orrick, Herrington & Sutcliffe (San Francisco)
Basketball, Surreptitious Recordings, and Antitrust* Donald Sterling — yes, that Donald Sterling — filed an antitrust lawsuit a few days ago against the National Basketball Association. You can download a copy here: Sterling Antitrust Complaint. It’s not clear if the complaint has now been (...)

A US District Court grants class certification and gives its preliminary approval for a partial class action settlement of a lawsuit on the allegation of conspiracy to hold down salaries in Silicon Valley (High-Tech employees)
Bona Law (San Diego)
The Antitrust Laws Encourage Stealing* That’s right, the antitrust laws care so much about competition that they even prohibit agreements among competitors to not steal. In a society that morally condemns stealing, this is counter-intuitive (and a good reason to learn a little bit about (...)

The US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
Bona Law (San Diego)
The Virginia Board of Medicine Violated the Antitrust Laws* Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)

The US Court of Appeals for the 7th Circuit affirms dismissal of antitrust claims under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
Sheppard Mullin (San Francisco)
Seventh Circuit Affirms Dismissal of Motorola’s LCD Antitrust Claims Based on Foreign Purchases* On March 27, in the latest major development in Motorola Mobility’s lawsuit alleging price-fixing of liquid crystal display modules (LCDs), a three-judge panel of the Seventh Circuit, including (...)

A US Court of Appeals upholds the judgment of the lower court dismissing claims of conspiracy to restrain trade and attempted monopolization on the market for prosthetic microprocessor knees (DAW Industries / Hanger Orthopedic Group)
Sheppard Mullin (Los Angeles)
Ninth Circuit Once Again Affirms That Malicious Actions To Destroy A Competitor Do Not State An Antitrust Claim Unless Accompanied By Injury To Competition* On February 24, 2014, the Ninth Circuit Court of Appeals affirmed the lower court’s grant of summary judgment dismissing DAW Industries’ (...)

The US District Court of Dallas dismisses a class action lawsuit filed by an online travel discount company against 12 dominant hotel chains and 9 online travel agencies alledging unfair exclusion from the market (OTC / Hotel Booking)
Ashurst (Milan)
U.S. District Judge in Texas dismisses class action lawsuit against conspiracy by online travel agencies and hotels to fix the price of hotel rooms* On 18 February 2014, U.S. District Judge Jane Boyle of the Northern District of Texas Dallas Division dismissed a class action lawsuit that (...)

The US District Court of Dallas dismisses antitrust claims because plaintiffs did not plausibly state an agreement on the market for direct online sale of hotel room reservations leaving the question of potential anticompetitive effect of the most favored nation (MFN) clause without an answer (OTC / Hotel Booking)
University of Michigan
OTA Case Turns Out to Be Less about MFNs and More about Agreement* Back in September 2012, the potential anticompetitive aspects of most favored nation (MFN) clauses was the hot antitrust topic. While antitrust counselors (and courts) had found the clauses to be innocuous almost all the time, (...)

The US Court of Appeals for the 7th Circuit dismisses price-fixing claims based on overseas purchases of LCD panels made by foreign affiliates (Motorola Mobility / AU Optronics)
Sheppard Mullin (San Francisco)
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Sheppard Mullin (San Francisco)
LCD Court Dismisses Motorola’s Multi-Billion Dollar Antitrust Claims Based On Overseas Purchases* On January 23, in a landmark decision that is one of the most important yet to be handed down in the sprawling LCD antitrust litigation pending in various federal courts since 2006, Judge Joan (...)

A US District Court largely rejects a motion to dismiss an antitrust price-fixing complaint, though it holds that a recognized exception against indirect purchaser suits has not been adequately pled (Lithium Battery)
Orrick, Herrington & Sutcliffe (San Francisco)
Lithium Ion Batteries Court Addresses Illinois Brick Exception, Finds Standing for Certain Indirect Purchasers of Component Products* In In re: Lithium Ion Batteries Antitrust Litigation, 2014 U.S. Dist. LEXIS 7516 (N.D. Cal. Jan. 21, 2014) (Gonzalez Rogers, J.), the Northern District of (...)

A US District Court approves the proposed class action settlement of the antitrust suit over swipe fees (Visa / MasterCard)
Manatt, Phelps & Phillips LLP (Los Angeles)
Swipe Fee Settlement Yields More Litigation* Although the parties reached a $7.25 billion class action settlement of the antitrust suit brought by merchants against Visa and MasterCard over swipe fees, the case is far from over. The protracted legal battle centers on allegations by (...)

A US District Court denies the motions to dismiss the plaintiff’s amended complaint against the "anti-troll" group organizing a boycott of android related patents (Cascades Computer Innovation / RPX)
Orrick, Herrington & Sutcliffe (San Francisco)
“Anti-Patent Troll” Fails to Secure Dismissal of Amended Antitrust Complaint* Back in January, I covered the case of Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), where Judge Yvonne Gonzalez Rogers dismissed – with leave to amend – Cascades’ (...)

The US Southern District of New York holds that antitrust plaintiffs need not show that conspiracy is the sole inference from the evidence (Apple)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this prominent case, the United States and 33 states and U.S. territories brought civil suits against Apple Inc. and five book publishing companies, alleging that they conspired and acted together, in violation of United States antitrust law, to cause the publishing industry to move from a (...)

The US Supreme Court holds that patent protection does not confer immunity from antitrust attack (Actavis)
Ashurst (Milan)
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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 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 Californian Supreme Court applies the continuous accrual doctrine to actions under the unfair competition law finding that each overcharge shall give rise to a separate claim (Aryeh / Canon Business Solutions)
Sheppard Mullin (San Francisco)
California Supreme Court Resolves Split Over Accrual Rules for Unfair Competition Claims* The California Supreme Court has offered hope to plaintiffs facing statute of limitations problems under California’s Unfair Competition Law, holding that special rules for calculating accrual dates for (...)

A US District Court dismisses with leave to amend antitrust claims against high-tech producers employing the android operating system (Cascades Computer Innovation / RPX)
Orrick, Herrington & Sutcliffe (San Francisco)
Can An “Anti-Patent Troll” Be a Monopsonist or a Section 1 Conspirator?* A recent interesting case suggests that “anti-patent trolls” may in theory face antitrust liability. In Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), Judge Yvonne (...)

A US Court of Appeals upholds that the filed rate doctrine applies to the federal milk marketing orders (Gerald Carlin / DairyAmerica)
Sheppard Mullin (Los Angeles)
In Agricultural Regulation, A “Flawed Rate” is Not a “Filed Rate” For Damage Purposes* Notwithstanding the general applicability of the Filed Rate Doctrine, the Ninth Circuit recently held that it does not necessarily bar producer class actions for overcharges. Whether a given rating authority has (...)

A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust suit involving alleged price-fixing of ATM fees (ATM Fee Antitrust Litigation)
Sheppard Mullin (San Francisco)
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Sheppard Mullin (San Francisco)
Brick By Illinois Brick: Ninth Circuit Builds High Wall For Indirect Purchaser Suits* The Ninth Circuit unanimously affirmed a grant of summary judgment for defendants in an antitrust suit involving alleged price-fixing of ATM fees, holding that the plaintiffs were indirect purchasers within (...)

US Ninth Circuit affirms dismissal of antitrust action by atm cardholders due to lack of standing (ATM Fee Antitrust Litigation)
Chadbourne & Parke (New York)
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Chadbourne & Parke (New York)
The Ninth Circuit recently affirmed the decision of the United States District Court for the Northern District of California and held that automated teller machine (“ATM”) cardholders lacked standing to bring an antitrust class action against banks and former and current corporate owner-operators (...)

The Kansas Supreme Court holds that the district judge erred in his demand for proof of a "concrete injury" in the price fixing of women’s accessories (O’Brien / Leegin Creative Leather Prods)
Sheppard Mullin (San Francisco)
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Sheppard Mullin (Los Angeles)
Kansas Supreme Court Declares “Rule of Reason” Inapplicable to Kansas Antitrust Law; Legislature May Have a Different Idea* In Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the U.S. Supreme Court expressly overruled the categorical ban on vertical price fixing (...)

The US Judge of New Jersey District Court dismisses the claims of the indirect purchasers in price-fixing litigation (Magnesium Oxide)
Constantine Cannon (New York)
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Constantine Cannon (New York)
Indirect Purchasers’ Claims Undermined In Mineral Price-Fixing Litigation* Judge Dickinson R. Debevoise of the U.S. District Court for the District of New Jersey has dismissed class action claims of price fixing brought by indirect purchasers against several magnesium oxide companies in the (...)

The US Judge of New Jersey District Court dismisses the claims of the indirect purchasers for lack of standing to bring a cause of action (Magnesium Oxide Antitrust Litigation)
Weil, Gotshal & Manges (New York)
With No Reliance Nor Nexus, Indirect Purchaser Plaintiffs’ Claims Fall Short: In re Magnesium Oxide Antitrust Litigation (D.N.J. Apr. 5, 2012)* Introduction Antitrust claims by indirect purchasers of magnesium oxide did not survive defendant manufacturers’ motion to dismiss a complaint alleging (...)

The US District Court of Detroit dismisses antitrust claims against practice of requiring hospitals to enter into "MFN-Plus" contracts (City of Pontiac / Blue Cross Blue Shield)
Sheppard Mullin (Los Angeles)
District Court Dismisses Follow-On Suit Challenging Blue Cross’s “MFN-Plus’ Contracts Under Both Per Se and Rule of Reason Standards* The District Court for the Eastern District of Michigan recently dismissed antitrust claims brought by the City of Pontiac against Blue Cross Blue Shield of (...)

A US District Court finds that a number of meetings related to drafting and implementing arbitration clauses was probative of an antitrust conspiracy (Currency Conversion Fee)
Sheppard Mullin (New York)
New York Federal Court Holds That Meetings Related To Drafting Arbitration Clauses May Be Probative Of Antitrust Conspiracy Despite Decision Makers’ Lack Of Knowledge* In In re Currency Conversion Fee Antitrust Litig., 2012 WL 401113 (S.D.N.Y. Feb. 8, 2012), Judge William H. Pauley III denied a (...)

A US District Court dismisses claims of anti-competitive exclusion of positioning technology from standards (Trueposition / Ericsson)
Stanford University - Stanford Law School
U.S. District Court dismisses claims of anti-competitive exclusion of positioning technology from standards* On 6 January 2012 the U.S. District Court for the Eastern District of Pennsylvania granted motions to dismiss claims that manufacturers of mobile telecommunications products conspired (...)

A US District Court denies a motion to dismiss antitrust conspiracy claims against potato grower cooperatives in several states (Fresh and Process Potatoes)
Sheppard Mullin (Los Angeles)
Allegations of Conspiracy to Limit Crop Production: Ripe for Analysis Under Capper-Volstead* On December 2, 2011, the district court denied a motion to dismiss antitrust conspiracy claims against potato grower cooperatives in several states. In re Fresh and Process Potatoes Antitrust (...)

A US District Court denies motion to dismiss antitrust conspiracy claims against potato grower cooperatives in US several states (Fresh and Process Potatoes Antitrust Litigation)
Offices of the United States Attorneys
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Labaton Sucharow
I Can’t Make You Love Me If You Won’t: Capper-Volstead Jilted* The intersection between the Sherman Act and the Capper-Volstead exemption for collective conduct by agricultural industry members has given rise to a number of recent cases. In re Fresh and Process Potatoes Antitrust Litig., No. (...)

A US District Court grants motion to dismiss class action on an allegation of price fixing of rock salt (Erie County / Morton Salt)
Sheppard Mullin (Los Angeles)
Allegations of Conspiracy to Fix Prices in Ohio Rock Salt Duopoly Flunk “Plausibility” Analysis* Creation of duopolistic interdependence by misapplication of a state statute mandating preferential treatment for local producers is an implausible "slippery slope." Erie County v. Morton Salt, Inc., (...)

A US Court of Appeals affirms the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages (Brantley / NBC Universal)
Sheppard Mullin (Los Angeles)
Ninth Circuit Rejects Consumer Antitrust Challenge To Cable Television Bundling* The Ninth Circuit recently affirmed the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages. Brantley v. NBC (...)

A US District Court dismisses an antitrust suit brought against "catch and release" transactions on the market for licenses of mobile wireless-related patents (Siti / AST)
Stanford University - Stanford Law School
Antitrust suit against defensive patent purchasing organization dismissed* On 29 December 2010, the U.S. District Court for the Southern District of New York dismissed an antitrust suit brought by Siti-Sites.com, Inc. (“Siti”) against Allied Security Trust (“AST”) and allegedly associated entities (...)

The US Court of Appeals of Atlanta (Eleventh Circuit) affirms a ruling of dismissal of an action brought on behalf of a class of purchasers of visco-elastic foam mattresses against a distributor (Benny Jacobs Wanda / Tempur-Pedic)
Sheppard Mullin (Los Angeles)
Lights Out for Resale Price and Dual Distribution Class Action* On December 2, 2010, the Court of Appeals for the 11th Circuit affirmed a ruling of dismissal entered by the United States District for the Northern District of Georgia. Jacobs v. Tempur-Pedic Int.’l, Inc., No. 08-12720. Plaintiff (...)

The US Court of Appeals for the Federal Circuit clarifies requirements for patent misuse (Princo)
Stanford University - Stanford Law School
U.S. Federal Circuit (en banc) finds no patent misuse in Princo* On 30 August 2010 the U.S. Court of Appeals for the Federal Circuit (en banc, 8-2) found – in contrast to an earlier ruling by a panel of the Court – that an alleged agreement between Philips Corp. and Sony Corp. to suppress a (...)

A US Court of Appeals finds that in order to allege a viable vertical restraint claim a plaintiff must plausibly allege the defendant’s market power (PSKS / Leegin Creative Leather Products)
Sheppard Mullin (Los Angeles)
Fifth Circuit Dismisses Leegin Resale Price Maintenance Case Anew, Following Supreme Court Remand* In 2007, the United States Supreme Court, updating the application of the cumulative advances in antitrust economics as applied to vertical restraint cases, overruled the venerable Dr. Miles Med. (...)

Three US Senators introduce a bill that would make permanent provisions of the ACPERA granting reduced civil liability to successful leniency applicants
Sheppard Mullin (San Francisco)
Bill Introduced To Secure Reduced Civil Liability For Amnesty Applicants* Three U.S. senators have introduced a bill that would make permanent provisions of the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 (ACPERA) granting reduced civil liability to companies who (...)

A US District Court allows the reverse payment suits to proceed finding that the agreements extended beyond the scope of the concerned patent (Provigil)
Stanford University - Stanford Law School
U.S. District Court allows Provigil reverse payment suits to proceed* On 29 March 2010 the U.S. District Court for the Eastern District of Pennsylvania rejected defendants’ motions to dismiss in suits concerning reverse payment settlements between the brand name manufacturer of the (...)

A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)
Sheppard Mullin (Los Angeles)
Cross-Market Claims Flunk Twombly* In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)

A US Court of Appeals affirms the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged cumulative anticompetitive effects (Gilley Enterprises / Atlantic Richfield)
Sheppard Mullin (Los Angeles)
Spirit of Twombly Exorcises Specter of Revived Aguilar Claims* The Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. (...)

A US District Court finds sufficient ground for a claim on alleged illegal secret rebates, kickbacks and commissions, though it rejects the claim on collusive conduct on the market for sales of title insurance (California Title Insurance)
Sheppard Mullin (Los Angeles)
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market* Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)

A US Court rules that the FTAIA mandated dismissal of a putative class action brought against foreign airlines in a civil litigation concerning the allegation of price fixing (Lufthansa / Air France / KLM / Alitalia)
Sheppard Mullin (San Francisco)
U.S. Court Grounds Europe-Japan Air Travel Price-Fixing Case* On October 16, 2009, Judge Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania ruled that the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a ("FTAIA") mandated dismissal of a (...)

A US Court of Appeals finds that the tying arrangement consisting in sales of real estate property didn’t affect a substantial amount of commerce in the market for the real estate services identified as the tied product (Blough / Holland Realty)
Sheppard Mullin (Los Angeles)
Ninth Circuit Finds That New Home Buyer Plaintiffs Fail To Satisfy Per Se Tying Element That Amount Of Commerce Not Be “Insubstantial”"Zero Foreclosure” Is Less Than “De Minimus.”* Buyers of newly constructed homes in the Boise, Idaho, area filed a federal antitrust class action, alleging that (...)

A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust action on an allegation of conspiration to allocate customers and fix prices within the tools business (Nitro Distributing / Alticor)
Sheppard Mullin (Los Angeles)
Eighth Circuit Affirms Dismissal of Antitrust Claims Against Amway* The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a “horizontal (...)

A US District Court rejects the allegation according to which inducement by a drug wholesaler of a drug price publisher to inflate the wholesale price may constitute a per se violation (New England Carpenters Health Benefits Fund / McKesson)
Sheppard Mullin (Los Angeles)
Twombly Meets Leegin. Failure of Plaintiff to Allege “Plausible” Entitlement to Relief Constitutes Failure to Allege “Antitrust Injury.”* In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts (...)

The US Court of Appeals for the Federal Circuit reverses the ruling of the lower court maintaning that a rebuttable presumption arises from the possession of patent rights to tying engineered fastening systems (Independent Ink / Illinois Tool Works)
Sheppard Mullin (Los Angeles)
Of Bats And Sunshine: Presumption Of Market Power In Patent Tying Case Alive But Rebuttable* In January, the Court of Appeals for the Federal Circuit issued an opinion in Independent Ink Inc. v. Illinois Tool Works, Inc.. Addressing the issue whether, in a Section 1 tying case, a rebuttable (...)

Dominance

A US District Court dismisses an action brought by a putative class of consumers on claims of monopolization of the aftermarket for iPhone apps (Apple iPhone Antitrust Litigation)
Sheppard Mullin (San Francisco)
Plaintiffs Hit an Illinois Brick Wall: Indirect Purchasers of iPhone Apps Lack Standing to Bring Antitrust Suit* On December 2, 2013, United States District Judge Yvonne Gonzalez Rogers of the Northern District of California dismissed a case against Apple brought by a putative class of (...)

The US District Court of Western Texas dismisses antitrust claims predicated upon alleged trademark misuse in relation to flow conditioners in oil pipelines (RJ Machine / Canada Pipeline Accessories)
Orrick, Herrington & Sutcliffe (San Francisco)
Trademark Misuse Is ^Almost^ Never an Antitrust Injury* Trademarks are commonly thought to convey no market power. In RJ Machine Co. v. Canada Pipeline Accessories Co., Case No. 1:13-cv-00579-SS (W.D. Tex. Nov. 22, 2013) (Sparks, J.), the court dismissed antitrust claims predicated upon (...)

The U.S. District Court of Northern California draws a sharp line between two types of sham litigation claims and dismisses the monopolization counterclaims with leave to amend (Surface Supplied/Kirby Morgan Dive)
Orrick, Herrington & Sutcliffe (San Francisco)
A Useful Reminder About Sham Litigation as Exclusionary Conduct* In Surface Supplied, Inc. v. Kirby Morgan Dive Systems, Inc., 2013 U.S. Dist. LEXIS 143478 (N.D. Cal. Oct. 3, 2013) (Chesney, J.), the Court dismissed attempted monopolization and monopolization counterclaims with leave to amend. (...)

A US District Court dismisses tying claim related to the market for distribution of hotel content since the tying product and the tied product were not separate (Pro Search Plus / VFML Leonardo)
Sheppard Mullin (Los Angeles)
De Facto Exclusive Dealing: What a Difference a Day Makes* In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media content for (...)

The US District Court of Miami dismisses claims on monopolization and resale price maintenance on the market for beauty products in duty free shops (Duty Free Americas / Estée Lauder)
Sheppard Mullin (Los Angeles)
Claims of Providing Truthful Marketing Information to Airports Issuing Bids for Duty Free Shops Fails to Allege Actionable Conspiracy or Attempted Monopolization* Conclusory allegations of parallel business conduct which are in the economic self-interest of the actor do not state an actionable (...)

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 (...)

A US District Court grants motion for summary judgment on the grounds that the plaintiffs failed to establish the element of “dangerous probability” for an antitrust claim for attempted monopolization on the market for containerized waste hauling and disposal services (All Star Carts and Vehicles / BFI Canada Income Fund)
Sheppard Mullin (Los Angeles)
Summary Judgment Dooms Attempted Monopolization Claim in Small Container Trash Hauling Market* In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted (...)

A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan)
Sheppard Mullin (Los Angeles)
ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim* The District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an (...)

A US District Court finds that the alleged facts were insufficient to allege a plausible monopoly power maintenance claim in respect of the market for automotive refrigerant recycling and recovery machines (SPX / Mastercool)
Sheppard Mullin (Los Angeles)
Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury* Plaintiff SPX Corporation ("SPX") brought a patent infringement action against Master Cool U.S.A. ("Master Cool"). Master Cool answered and counterclaimed. In its counterclaim, it alleged (...)

A US District Court dismisses the antitrust counterclaims alleging monopolization on the market for maintainance of printers, while allowing the tortious interference claims to continue (Océ North America / MCS)
Sheppard Mullin (Los Angeles)
Aftermarket Monopolization Claims Dismissed as Afterthought* Plaintiff Océ North America, Inc. ("Océ") brought an action against a service market supplier for copyright infringement. Defendant MCS Services, Inc. ("MCS") filed a Kodak-style "aftermarket" monopolization counterclaim, in addition (...)

A US District Court denies a motion to dismiss allegations of a price squeeze implemented through the granting of secret rebates to the plaintiff’s customers on the market for resailing of paper bag products (Western Pacific Kraft / Duro Bag)
Sheppard Mullin (Los Angeles)
In Secret Rebate Case, If It Walks Like A Duck, Allegations That It Will Also Quack Are Plausible* On May 24, 2011, United States District Court, Central District of California, denied a motion to dismiss allegations of a "price squeeze" implemented through the granting of secret rebates to (...)

A US District Court dismisses claims on monopolization, unfair competition and fraud, since the plaintiff did not articulated a proper definition of the relevant market (Digital Sun / The Toro Company)
Sheppard Mullin (Los Angeles)
Federal Court Finds Allegations of “Bad Faith” in Sprinkler License Agreements to be “Vox Clamantis in Deserto”* On March 22, 2011, the United States District Court for the Northern District of California entered an order granting defendants The Toro Company’s ("Toro") motion to dismiss plaintiff (...)

A US District Court denies a motion to dismiss a fraudulent patent claim and allows standing to a direct purchaser of NAND flash memory (Ritz / SanDisk)
Sheppard Mullin (Los Angeles)
Expanded Standing, or “Back to Basics”? Flash Memory Direct Purchasers Found to Have Standing to Assert Walker Process Claims* In Ritz Camera & Image, LLC v. SanDisk Corporation, et al., United States District Court, ND Cal., Case No. 5:10-CV02787-JF/HRL, the court denied a motion to dismiss (...)

A US District Court dismisses indirect purchaser class actions challenging proposed reverse payment agreements as anticompetitive on an allegation of preventing a cheaper generic medicine to enter the market sooner (Plavix Indirect Purchaser)
Sheppard Mullin (San Francisco)
Indirect Purchaser Plavix Class Actions Tossed for Lack of Antitrust Standing* On January 31, 2011, the District Court for Southern District of Ohio granted defendants’ Rule 12(b)(6) motion, dismissing indirect purchaser class actions that challenged proposed reverse payment agreements as (...)

The US 1st District California Court of Appeal upholds a jury verdict finding that a claim of unfair competition based on below-cost sales of advertising did not require proof of the defendant’s ability to recoup losses by subsequent monopoly pricing (Bay Guardian Company / New Times Media)
Sheppard Mullin (Los Angeles)
A Step Back to Square One? California Court of Appeal Elevates UPA Protection of Competitors Over Protection of Competition in Newspaper Ad Dispute* On August 11, 2010, the California Court of Appeal for the First District upheld a jury verdict in favor of plaintiff Bay Guardian Company (...)

A US District Court grants motion for summary judgment on claims of maintaining a monopoly in the operating systems market (Novell / Microsoft)
Stanford University - Stanford Law School
U.S. District Court dismisses Novell’s claims against Microsoft* On 30 March 2010 the U.S. District Court for the District of Maryland granted Microsoft’s motion for summary judgment on Novell’s claims that Microsoft violated U.S. antitrust laws by engaging in anti-competitive conduct in order to (...)

The US District Court of SDNY dismisses antitrust claims raised by a distributor of compatible mainframe computers produced by the plaintiff (IBM/T3 Technologies)
Stanford University - Stanford Law School
U.S. District Court dismisses T3’s antitrust claims against IBM* On 30 September 2009 the U.S. District Court of S.D.N.Y. granted in International Business Machines Corp. v. Platform Solutions, Inc. and T3 Technologies, Inc. (No. 06 Civ. 13565(LAK)) IBM’s motion for summary judgment on antitrust (...)

A US Court of Appeals affirms the decision of the lower court allowing a summary judgment on all claims including the exclusion of competition from the market for gasoline (Partner / ExxonMobil Oil)
Sheppard Mullin (Los Angeles)
PMPA Franchise Agreement Disavowing Plaintiff’s Claim to an Exclusive Market and Geographic Territory Trumps Alleged Oral Commitment* Partner v. ExxonMobil Oil Corp., 08-1590 (6th Cir. May 4, 2009) In 2000, plaintiff Partner & Partner, Inc. entered into a lease/franchise agreement with (...)

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. (...)

A US District Court dismisses based on the statute of limitations an antitrust complaint alleging a refusal to deal with a professional association of cardiologists expressed by an operator of five hospitals in Arkansas (Little Rock Cardiology Clinic / Baptist Health)
Sheppard Mullin (Los Angeles)
What Part of “No” Don’t You Understand? Unequivocal Refusal to Deal Triggers Statute of Limitations* Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008). Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing (...)

A US District Court dismisses antitrust claims arising from an allegation of foreign related conduct that affected the plaintiff’s foreign sales (AMD / Intel)
Sheppard Mullin (San Francisco)
Court dismisses AMD’s “foreign commerce claims” against Intel for lack of subject matter jurisdiction and standing* In a recent opinion, the District Court for the District of Delaware dismissed AMD’s antitrust claims against Intel that arose out of Intel’s alleged foreign-related conduct that (...)

A US Court of Appeals confirms the dismissal of antitrust claims related to an alleged loss of competitive technologies being deemed so diffuse that it could not possibly be adequately measured (Kloth / Microsoft)
Sheppard Mullin (San Francisco)
Indirect Purchaser and Remoteness Doctrines Barred Antitrust Claims Against Microsoft by End-User Software Licensees* A question arising from end-user license agreements ("EULAs"), which accompany applications software programs that have been preinstalled on personal computers, is whether they (...)

Mergers

A US District Court starts hearings in a class action case where the plaintiffs argue that a previously concluded DoJ settlement failed to ameliorate the competitive harm occasioned by the removal of a direct competitor and price maverick (AB InBev / Grupo Modelo)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). Closing time* Given our previous posts on the topic you would be forgiven for thinking we have a particular interest in Corona sales. Rather, the AB InBev / Grupo Modelo merger has been (...)

Procedures

A US Court of Appeals affirms on statute of limitations grounds the district court’s dismissal of the Sherman Act and Clayton Act claims related to an allegation of anti-competitive price increase on the market for petroleum wax-based oxidates (Z Technologies / Lubrizol)
Sheppard Mullin (Los Angeles)
Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations* Z Technologies Corp. v. Lubrizol Corp., No. 2:12-cv-12206 (6th Cir., May 23, 2014). In February, 2007, Lubrizol Corporation made a “merger to monopoly” acquisition of the assets (...)

A US District Court receives letter from former employee and plaintiff in the trial asking the judge to reject the settlement negotiated by his own lawyers (High-Tech Employee Antitrust Litigation)
Orrick, Herrington & Sutcliffe (San Francisco)
A Rare Challenge to a Class Action Settlement . . . From a Named Plaintiff* One of the named class plaintiffs in the high-tech employee antitrust case has filed an objection to the proposed class settlement. The plaintiff, Mr. Michael Devine, analogized the approximately $300 million (...)

The US District Court for the Northern District of Georgia refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine, since such a conclusion would have contradicted the decision of the Supreme Court finding that a reverse payment settlement agreement should be subject to antitrust scrutinity (Actavis)
Sheppard Mullin (Los Angeles)
FTC v. Actavis on Remand: A New Chapter* District Court refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine. In re AndroGel Antitrust Litigation (No. II), MDL No. 2084 (re Federal Trade Commission v. Actavis, Inc., No. 1:09-CV-955-TWT) (N.D. GA April 21, 2014). In (...)

A US Court of Appeals affirms the dismissal of the antitrust claims, agreeing that plaintiffs lack standing (Bruce Max Davis / AT&T Wireless Services)
Orrick, Herrington & Sutcliffe (San Francisco)
Digital Content Producers (Still) Lack Antitrust Standing to Sue Wireless Carriers Over MMS* In a prior post, I covered the district court’s decision in Davis v. AT&T Wireless Services, Inc. There, the Central District of California dismissed antitrust claims against various wireless (...)

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 (...)

A US District Court dismisses an antitrust class action against two pharma producers regarding an agreement to postpone the production of a generic epilepsy and bipolar disorder drug because no reverse payment with cash was involved to keep the rival off the market (GSK / Teva)
DLA Piper Weiss-Tessbach (Vienna)
U.S. District Court holds that Actavis requires monetary payments for antitrust scrutiny to be applicable* On January 24, 2014 U.S. District Judge William H. Walls dismissed an antitrust class action against GlaxoSmithKline LLC (“GSK”) and Teva Pharmaceutical Industries Ltd. (“Teva”) regarding (...)

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 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 Court of Appeals for the 3rd Circuit vacates class certification order on ascertainability grounds in consumer false advertising case (Carerra/Bayer)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Purchasers of a diet supplement brought a class action asserting that Bayer falsely claimed that the supplement enhanced metabolism by including a green tea extract. The district court certified a class of purchasers in Florida. The Third Circuit vacated the class certification order and (...)

The US DC Circuit Court of Appeals unanimously overturns the district court’s order granting certification of a class of direct purchasers against four freight railroad companies (Rail Freight Fuel Surcharge Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Railroad shippers brought a class action, asserting that four freight railroad companies that together comprised nearly 90% of the market for rail freight had participated in a conspiracy to impose rate-based fuel surcharges. The district court certified a class based on two regression models, (...)

The US Southern District of New York certifies a class for liability purposes only (Jacob/Duane Reade)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Pharmacy store managers brought suit against a retail chain pharmacy, asserting that the pharmacy failed to compensate them for overtime in violation of the Fair Labor Standards Act. The district court concluded that certification of the class for all purposes was inappropriate under Comcast. (...)

The US District Court for the Southern District of New York certifies class for liability purposes only in a lawsuit brought against retail chain pharmacy (Jacob/Duane Reade)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Pharmacy store managers brought suit against a retail chain pharmacy, asserting that the pharmacy failed to compensate them for overtime in violation of the Fair Labor Standards Act. The district court concluded that certification of the class for all purposes was inappropriate, under Comcast, (...)

The Southern District of California refuses to certify nationwide classes in nearly identical “all natural” cases brought against Kashi producers for false advertising (Astiana/Kashi)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Purchasers of Kashi food products brought a class action for alleged unfair business practices and false advertising, asserting that advertisements claiming Kashi products contained “nothing artificial” and were “all natural” were false and misleading. Defendants argued that the plaintiffs were (...)

The US District Court for Western District highlights the unique damages theory, which requires plaintiffs to “show that the method of calculating damages measures ‘only those damages attributable to that theory’ of injury asserted by the plaintiffs (Barfield/Sho-Me Power)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Missouri landowners brought a class action asserting that electric companies that had easements over their properties for the transmission of electricity had exceeded the scope of their easements, by also transmitting fiber optic communications through the properties in addition to electricity. (...)

The US Court of Appelas for the Sixth Circuit Sixth Circuit affirms class certification even for members whose product did not manifest the alleged defect (Whirlpool Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Purchasers of Whirlpool washing machines brought a product liability class action against Whirlpool, alleging that a design defect in many of the machines resulted in mold and mildew in the machines and foul odors in their homes. A class was certified as to liability issues, with proof of (...)

A US Court of Appeals upholds a district court’s class certification of a class alleging federal antitrust claims (Glazer/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)
Earlier this year, the U.S. Supreme Court 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, 133 S. Ct. 1426 (2013) (Comcast). The Sixth Circuit has now issued a new ruling, (...)

The US Court of Appeals for the Eastern District Court of California states that if putative class members prove Medline’s liability, damages may be calculated based on the wages each employee lost (Barbosa/Cargill Meat Solutions)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Employees at a meat processing facility brought a class action claiming that required sanitary procedures deprived them of the benefit of the break time during which their employer required them to perform those procedures. Class certification was sought in connection with a proposed class (...)

The US Central District of California denies class certification on California law claims and grants class certification on New York law claims (Guido/L’Oreal)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Purchasers of a hairstyling product (“Serum”) from L’Oreal brought a class action, asserting that the product was flammable, that its flammability was not adequately disclosed, and that class members would not have bought the product had they known that it was flammable. On that basis, they (...)

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)
,
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 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 Ninth Circuit reverses an order denying class certification of plaintiffs’ claim for pay discrimination based on national origin (Parra/Bashas)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Grocery store employees brought a class action alleging discrimination based on race and national origin. Defendants argued that there was no predominance of common questions, asserting that the Supreme Court’s Comcast decision precluded a finding of predominance because individual damage (...)

The US Eastern District of Kentucky denies class certification due to individual damage calculation (Cowden/Parker)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Individual insurance agents brought a class action against their insurance agency employer, asserting that the agency had agreed to pay its agents a commission on certain health insurance plans but had refused to pay them. The court denied class certification, reasoning that under Comcast, (...)

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)
,
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 Eastern District of Michigan certifies a class for liability only (Miri/Dillon)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
The plaintiffs, a Michigan brew pub and its owner, brought a class action asserting that standard practices of the Michigan Treasury Department, involving issuance of warrants without judicial approval and search and seizure of property without advance notice, involve routine violations of due (...)

The US District Court for the Northern District of California certifies class action underlying that the predominance element “does not require a plaintiff to prove that each element of her claim is susceptible to class wide proof” (Diamond Foods Securities Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Shareholders of a nut processing, marketing and distributing company brought a class action under the federal securities laws, asserting that the company had maintained artificially high share prices by understating the cost of walnuts. Defendants argued that the plaintiff had failed to (...)

The US Central District of California denies class certification due to individual questions of fact (Forrand/Federal Express)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Federal Express employees brought a class action against it, claiming that Federal Express failed to pay for all hours worked, including off-the-clock work and unpaid meal and rest breaks. The plaintiffs proposed a method of class-wide proof that would have rested on the premise that “clocking (...)

The US District of Kansas grants certification to liability only (Motor Fuel Temperature Sales Practice Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Gasoline consumers in California brought a class action against gas station owners and operators in California, claiming that their failure to adjust gasoline prices based on the effects of temperature on gasoline volume and to disclose those effects was a violation of California’s unfair (...)

The US Northern District of California denies class certification in high tech employees’ price-fixing lawsuit (High-Tech Employee Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In a high-technology case, employees of various high-tech companies sued their employers for conspiring to restrict their salaries. 856 F. Supp. 2d at 1108. Many of the plaintiffs’ allegations mirrored those from earlier complaints that the Department of Justice filed against the same firms, (...)

The US Northern District of New York denies class certification due to individualized damage calculations (Roach/TL Cannon)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Current and former employees of the Applebee’s restaurant stores located in New York brought a class action against Applebee’s based on its failure to adhere to a New York state regulation that required that on each day in which the spread of hours worked exceeds 10, and employee must receive an (...)

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)
,
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 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)
,
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 District Court for the District of Kansas denies denying the defendant’s motions to exclude the testimony of the class plaintiffs’ liability expert (Urethane Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this recent decision, the court applied the well-known Daubert standards governing expert testimony admissibility in denying the defendant’s motions to exclude the testimony of the class plaintiffs’ liability expert. (The Court also denied the defendant’s motion to exclude the opinion of the (...)

The US District of Kansas clarifies the appropriate summary judgment standard for horizontal price-fixing of commodity products (Urethane Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this opinion, the court clarified the appropriate summary judgment standard to apply to the plaintiffs’ claims of horizontal price-fixing for commodity products, and then ruled on whether the plaintiffs had proffered sufficient evidence to get to trial under that standard. First, the court (...)

US Eastern District Court of New York approves class settlement in a price-fixing lawsuit brought against Vitamin C manufacturers (Vitamin C Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In determining whether to finally approve a class settlement reached with one defendant, the court considered the objections of several members of the proposed indirect purchaser settlement class regarding class counsel’s decision to forego a monetary distribution to the class and instead make a (...)

The US Southern District of New York addresses the question of standing for named class representatives (DDAVP Indirect Purchaser Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
When class actions in recent years have been brought asserting claims on behalf of indirect purchasers under state laws that have repealed Illinois Brick, defendants have frequently argued that named class representatives lack "standing" to assert claims in a class action under the laws of (...)

The US Third Circuit clarifies the standard for analyzing the legality of exclusive agreements (ZF Meritor/Eaton)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this case, the Third Circuit provided needed clarification on the standard for analyzing the legality of exclusive (or at least essentially exclusive) agreements that dominant firms enter into with their customer base. ZF Meritor, the only competitor of Eaton, the dominant supplier of (...)

The US Northern District of Georgia applies objective baselessness and subjective baselessness (Androgel Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Especially in pharmaceutical antitrust class actions, many efforts have been made in recent years to rest cases on Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993)("PRE"), which requires that for a claim of so-called "sham litigation" to remove (...)

The US Court of Appeals for the Second Circuit applies the "filed rate doctrine" to electricity rates set by market-based auctions (Simon / KeySpan)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
The Second Circuit was asked to consider whether the plaintiff, a retail consumer of electricity, could maintain an antitrust action against an electricity producer that allegedly agreed with its competitor to increase installed capacity prices and a financial firm that allegedly facilitated (...)

The US District Court for the Eastern District of Pennsylvania certifies a class in a price-fixing conspiracy case against two leading blood reagent producers (Blood Reagents Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
The plaintiffs, who alleged a price-fixing conspiracy between two leading blood reagent producers, moved for class certification. The court began by noting its duty to perform a rigorous analysis and to find by a preponderance of the evidence that each requirement of Rule 23 had been satisfied (...)

The US Second Circuit reversed grant of summary judgment on horizontal price-fixing claim (Publication Paper Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this case, the Second Circuit overruled a district court order granting summary judgment to a company accused of horizontal price-fixing. The plaintiffs presented direct evidence of conspiracy in the form of testimony from one of the conspirators who testified that he had reached an (...)

The US Second Circuit Second Circuit perforates Matsushita standards in reviewing price-fixing conduct by commercial papers manufactures (Publication Paper Antitrust Litigation)
Hausfeld (New york)
Seizing upon the "opportunity to clarify the application of the standards established" more than a quarter-century ago in Matsushita Electric Industrial Co. v. Zenith Radio Corp. for determining the existence of a jury question as to collusive behavior, the Second Circuit reversed a summary (...)

The US Court of Appeals for the Second Circuit overturnes the district court’s grant of summary judgment holding that the Matsushita standard does not apply in the presence of unambiguous price-fixing evidence (Publication Paper Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
The Second Circuit was asked to determine, among other things, whether there was enough evidence for a jury to find that the alleged agreement among competitors to raise prices actually caused the price increases that subsequently occurred. 690 F.3d at 65-66. While the Court conceded that it (...)

US Ninth Circuit holds direct-purchaser antitrust plaintiffs lacked standing to seek damages for alleged antitrust price-fixing in the ATM services (ATM Fee Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Having failed at obtaining federal standing to sue for damages under one exception to the Illinois Brick rule, the plaintiffs argued in the alternative that they had standing under the “ownership/control” exception to that rule. Again, the court disagreed. 686 F.3d at 756. The court found that (...)

The US Third Circuit answers whether a distributor is a direct purchaser (Hypodermic Products Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this judgment, the Third Circuit was asked to answer an increasingly common question in antitrust litigation in the medical industry: whether a distributor who purchases a product from a manufacturer, albeit pursuant to prices negotiated by a group purchasing organization at the behest of (...)

The US Southern District of New York denies motion to dismiss conspiracy claims (Electronic Books Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this widely-followed case, consumers of electronic books alleged that the defendants, five of the six biggest publishers and Apple, conspired to raise prices of e-books. The defendants allegedly hatched the conspiracy to stymie the low e-book prices that dominant retailer Amazon was then (...)

The US Northern District of California denies motion to dismiss conspiracy claims with bilateral agreements (High-Tech Employee Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In a high-technology case, employees of various high-tech companies sued their employers for conspiring to restrict their salaries. 856 F. Supp. 2d at 1108. Many of the plaintiffs’ allegations mirrored those from earlier complaints that the Department of Justice filed against the same firms, (...)

US District Court for the District of New Jersey dismisses class action claims of price fixing brought by indirect purchasers against several magnesium oxide companies (Magnesium Oxide Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this horizontal price-fixing conspiracy case, the defendants argued that the plaintiffs’ complaint failed to adequately plead fraudulent concealment so as to toll the statute of limitations. In particular, the plaintiffs purportedly failed to plead (1) that the conspiracy was (...)

The US Central District of California rejects plaintiff’s market definition of live rock music concerts (Live Concert Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
This case illustrates the degree to which courts have become fundamentally confused in recent years about "market definition" concepts, with the consequence that cases increasingly are dismissed based on rejection of a plaintiff’s proposed product market definition, and expert analysis of market (...)

The US Northern District Court of California recognizes indirect purchasers’ standing in cases where component products have little independent utility (Flat Panel Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In re TFT-LCD (Flat Panel) Antitrust Litig., 2012 U.S. Dist. LEXIS 145935 (N.D. Cal. 2012) Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme (...)

The US Northern District of California decides antitrust standing issue for indirect purchasers (TFT-LCD Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme Court in Illlinois Brick Co. v. Illinois, 431 U.S. 720 (1977) that only so-called "direct (...)

The US Seventh Circuit clarifies the expert testimony standards in connection with class certification (Mesner/Northshore Univ. Health)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this opinion, addressed above with respect to the class certification element of predominance, the Seventh Circuit also clarified the standards trial courts should use in evaluating expert testimony submitted in connection with class certification. The plaintiffs filed a motion seeking to (...)

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)
,
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 District Court for the District of Idaho issues an advisory opinion denying motion to dismiss antitrust conspiracy claims against potato grower cooperatives in US several states (Fresh and Process Potatoes Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this case the plaintiffs alleged that the defendants conspired to reduce the supply of potatoes. 834 F. Supp. 2d at 1148. The conspiracy allegedly began when potato growers formed a cooperative to increase the price of potatoes by agreeing to limit potato planting acreages and by paying (...)

The US Eighth Circuit rejects FTC’s market definition (Lundbeck)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this case, the Eighth Circuit affirmed a trial court’s rejection of a case brought by the Federal Trade Commission based on rejection of the FTC’s proposed market definition, even in the face of clear evidence that the challenged conduct had in fact led directly to vastly increased prices, and (...)

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 Court of Appeals for the 3rd Circuit approves a classwide settlement against a diamond distributor in abuse of dominance lawsuit (Sullivan/DB Investments)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
This case involved indirect purchaser claims under various state antitrust laws, arising from allegedly monopolistic conduct by DeBeers that was alleged to have increased diamond prices worldwide. Objections were raised to the settlement, principally on the basis that diversity of available (...)

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 California Supreme Court clarifies the meaning of damages under the Consumers Legal Remedies Act and the matter of standing to seek declaratory relief (Meyer / Sprint Spectrum)
Sheppard Mullin (Los Angeles)
California Supreme Court Clarifies the Meaning of “Any Damage” as a Standing Requirement Under California’s Consumers Legal Remedies Act* California Supreme Court’s Kagan analysis is clarified by Proposition 64 spill-over. Meyer v. Sprint Spectrum LP, ___ Cal. __, 2009 WL197560 (January 29, 2009). (...)

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 (...)

A US Court of Appeals rules that the District Court did not err in dismissing the antitrust claims based on an alleged economic retaliation against a nurse after she rebuffed his sexual advances (Stark / Ear Nose & Throat Specialists of Northwestern Penn)
Sheppard Mullin (San Francisco)
Asserted Economic Retaliation Against Plaintiff Based on Plaintiff’s Rejection of the Defendant’s Sexual Advances Did Not Violate Section 1 or 2 of the Sherman Act* In an unpublished opinion, designated as "not precedential," the Third Circuit recently affirmed the District Court’s dismissal (...)

Public sector

The US Court of Appeals for the 4th Circuit finds in favour of the appellee on the account of its counterclaims of unjust enrichment and breach of contract in relation to a subcontracting agreement on the provision of transport and logistics for the US army in Afghanistan (Vlox / Mirzada)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Fourth Circuit Affirms $2.8 Million Jury Verdict Obtained By Womble Carlyle For Government Subcontractor* On December 16, 2013, the Fourth Circuit issued an opinion affirming a $2.8 million jury verdict obtained by a Womble Carlyle trial team, chaired by Jason Hicks, in the Eastern District of (...)

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