Class actions

General antitrust

The US New York State Senate proposes legislation to modernize state antitrust law and expands the State’s and private litigants’ ability to litigate against companies for anticompetitive conduct (Twenty-First Century Anti-Trust Act)
Constantine Cannon (New York)
New York Could Lead the Nation Into 21st Century Antitrust Enforcement* New York is on the verge of revamping state antitrust enforcement to tackle competition issues of the 21st Century. On September 14, 2020, the Consumer Protection Committee of the New York State Senate held a virtual (...)

The Italian Government adopts a collective action reform which aims at redesigning proceedings beyond consumer law
University of Trento
,
University of Turin (Turin)
Introduction The new Italian collective action regime was adopted by law 12 April 2019, no. 31, but – after a further postponement occurred at the end of 2019 – it is now set to come into force on 19 November 2020. In particular, the remedy will only be available for claims filed after such (...)

The French Government implements the damages directive by way of an order which establishes a specific civil liability regime to facilitate the recovery of damages suffered by victims of anti-competitive practices
Freshfields Bruckhaus Deringer (Paris)
,
Freshfields Bruckhaus Deringer (Paris)
,
Freshfields Bruckhaus Deringer (Paris)
The French Government has just implemented the Damages Directive by way of order No. 2017 -303 (the Order). The Order establishes a specific civil liability regime to facilitate the recovery of damages suffered by victims of anti-competitive practices. In a nutshell, what are the main (...)

The UK Parliament implements a regime issued from the Consumer Right Act extending the powers of the Competition Appeal Tribunal
Blackstone Chambers (London)
Private Actions: The CRA 2015 giveth; and the 2015 CAT Rules taketh away Introduction* Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition (...)

The UK Parliament’s Consumer Rights Act 2015 enters into force
White & Case (London)
,
White & Case (Brussels)
,
White & Case (Brussels)
The entry into force of the UK Consumer Rights Act 2015 (the “CRA”) on 1 October 2015 marks the introduction of opt-out class actions in the UK, further transforming the legal landscape for private damages claims in the UK. Together with further changes as a result of the UK’s implementation of (...)

The UK Parliament adopts the Consumer Rights Act to boost private enforcement of competition law
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 1 October 2015 the Consumer Rights Act 2015 entered into force. This reforms and consolidates consumer protection laws in the UK but also - (...)

The UK Parliament extends the Competition Appeal Tribunal’s jurisdiction and powers to hear competition damages cases
St John’s Chambers (Bristol)
United Kingdom: Consumer Rights Act 2015 introduces new procedures for competition litigation, including collective follow-on damages actions* On 1 October 2015, the Consumer Rights Act 2015 (“CRA 2015”) entered into force. The CRA 2015 makes numerous changes to consumer rights laws in the (...)

The UK Parliament introduces a class action mechanism for antitrust damages
Covington & Burling (London)
,
Covington & Burling (Brussels)
,
Covington & Burling (Brussels)
The UK has introduced a class action mechanism that could lead to an increase in antitrust litigation. Most significantly, the new mechanism will enable opt-out class actions, which are potentially effective in aggregating individually low value claims, into a single high value, and (...)

The French Parliament promulgates a consumer law introducing class actions (’Hamon Law’)
Norton Rose Fulbright (Paris)
,
Dechert (Paris)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The new “Hamon Law” introducing French class actions and its effects on competition and distribution law Introduction In order to balance the powers of economic (...)

The French National Assembly adopts draft law on class actions
Court of First Instance of Namur (Namur)
On 3 July 2013, the French National Assembly adopted at first reading a draft law in relation to consumer affairs. Among the proposals, the draft law seeks to introduce into the French legal system a class action procedure. The draft law seeks to introduce legislation aimed at (...)

The UK Government shares proposals for consumers and businesses to bring collective damages claims against competition law infringers
McDermott Will & Emery (Brussels)
,
Norton Rose Fulbright (Brussels)
UK GOVERNMENT ANNOUNCES PROPOSALS FOR AN "OPT-OUT" COLLECTIVE COMPETITION DAMAGES ACTION * On 29 January 2013, the UK Government’s Department for Business, Innovation & Skills announced new proposals designed to improve the ability for consumers and businesses to bring collective damages (...)

The UK Government publishes proposed changes to the mechanisms for bringing private actions for alleged breaches of antitrust law
Covington & Burling (London)
The UK Government has published proposed changes to the mechanisms for bringing private actions for alleged breaches of antitrust law. The most significant change is to introduce an ‘opt-out’ collective redress mechanism, allowing claims to be brought on behalf of persons who need not be active (...)

The UK Government announces plans to introduce an opt-out class action regime in its consultation paper on options for reforming the private enforcement system
Blackstone Chambers (London)
Collective Actions: loss in complex cases* The big news from last week’s UK announcement on reforming private competition enforcement is that the government plans to introduce opt-out class actions for competition claims. The proposals incorporate various “safeguards” designed to ensure that the (...)

The UK Government publishes a consultation document on how best to encourage private sector challenges to anticompetitive behaviour
McDermott Will & Emery (Brussels)
,
McDermott Will & Emery (Brussels)
,
McDermott Will & Emery (Paris)
PRIVATE ACTIONS IN COMPETITION LAW: UK GOVERNMENT CONSULTATION* On April 24, 2012, the UK government took a significant step towards private antitrust actions by publishing a consultation document on how best to encourage private sector challenges to anticompetitive behavior. This consultation (...)

The UK Government announces proposals for reform of the private competition damages regime
White & Case (London)
,
White & Case (London)
As widely expected, earlier this week the Government announced proposals for reform of the private competition damages regime in the UK, proposing to increase the Competition Appeal Tribunal’s (CAT) power and introduce an opt-out “collective action” scheme before the CAT . The proposed changes (...)

The Danish Parliament approves an amendment enabling antitrust class action
DLA Piper (Copenhagen)
On 22 February 2007, the Danish Parliament approved an amendment to the Danish rules on civil procedure which enables class action law suits to be brought. Such class actions may also be initiated on the basis of injury suffered as a result of alleged infringements of the Danish or EU (...)

The French Competition Authority issues an opinion on class actions in the field of competition
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence in favour of class action, under certain conditions, for consumers victim of anticompetitive practices.* Following the publication in December 2005 of the report relative to (...)

Anticompetitive practices

The US District Court for the District of Delaware contradicts the Supreme Court precedent regarding patent settlements in the pharmaceutical sector (Chimicles Schwartz Kriner / Donaldson-Smith / Amgen / Teva / Watson / Actavis)
White & Case (New York)
,
White & Case (Washington)
,
White & Case (Washington)
A Nov. 30 decision by the U.S. District Court for the District of Delaware, In re: Sensipar Antitrust Litigation, contradicts controlling U.S. Supreme Court precedent and, if followed, could have significant implications for patent settlements well outside the pharmaceutical context in which it (...)

The US District Court for the Northern District of California announces a $100,000 fine and sentences to 40 months in prison a former CEO for his role in a tuna price-fixing conspiracy involving two competitors (Bumble Bee Foods)
Hogan Lovells (Washington)
,
Hogan Lovells (Washington)
,
Hogan Lovells (Washington)
On 16 June 2020, the former CEO of Bumble Bee Foods LLC was sentenced to 40 months in prison and fined US$100,000 for his role in a tuna price-fixing conspiracy involving two competitors. This sentence is one of the most significant penalties ever imposed on a corporate executive in a criminal (...)

The US District Court for the Northern District of Illinois dismisses antitrust case challenging patent thicket (Humira)
Rutgers University (Camden)
On June 8, 2020, the U.S. District Court for the Northern District of Illinois granted defendants’ motion to dismiss an antitrust case challenging behavior arising out of a massive collection of patents known as a “patent thicket.” In re Humira (Adalimumab) Antitrust Litigation, 2020 WL 3051309 (...)

The US Court of Appeals for the Third Circuit overturns a district court decision certifying a class of direct purchaser plaintiffs without undertaking a rigorous analysis in order to resolve factual disputes, assess competing evidence or weigh conflicting expert testimony (Lamictal)
McDermott Will & Emery (New York)
,
Crowell & Moring (Washington)
,
McDermott Will & Emery (Chicago)
The US Court of Appeals for the Third Circuit recently concluded in In re Lamictal Direct Purchaser Antitrust Litigation that a district court’s reliance on average prices to determine class-wide impact was insufficient. Instead, courts must conduct a rigorous analysis of the facts, evidence and (...)

The Ontario Court of Justice certifies a $1.0 billion foreign exchange price fixing class action in the banking sector (Mancinelli / Royal Bank of Canada)
Affleck Greene McMurtry (Toronto)
Superior Court Certifies $1.0 Billion Foreign Exchange Price Fixing Class Action* In his decision released earlier this Spring, Ontario Superior Court Justice Paul Perell certified a class action in Mancinelli v. Royal Bank of Canada claiming $1.0 Billion in damages against several large (...)

The Canadian Supreme Court expands the scope of potential liability in price-fixing class actions (Pioneer / Godfrey)
Davies Ward Phillips & Vineberg (Toronto)
,
Davies Ward Phillips & Vineberg (Toronto)
,
Davies Ward Phillips & Vineberg (Toronto)
The Supreme Court of Canada has released its long-awaited decision in two companion appeals that have significant implications for class actions alleging conduct that contravenes the criminal provisions found in Part VI of the Competition Act (Act). In its decision in Pioneer Corporation v (...)

The US District Court for the Northern District of Illinois receives a class action complaint against a pay-for-delay agreement (Abbvie)
Constantine Cannon (Washington)
Plaintiffs Targeting Biologic-Biosimilars Settlements with Pay-for-Delay Antitrust Claims* Antitrust principles that can invalidate certain pay-for-delay settlements will be expanding into the new frontier of biologic and biosimilar drugs if plaintiffs in several new suits are successful. (...)

The US District Court for the Eastern District of Pennsylvania finds that a company was not part of a conspiracy to manipulate the supply of eggs and raise prices (In re Processed Egg Prods)
Dechert (Philadelphia)
,
Dechert (Philadelphia)
The case began 10 years ago when a class of companies that purchase eggs sued the country’s leading egg producers, seeking more than $1 billion in damages. The plaintiffs claimed that the egg producers conspired to manipulate the supply and raise prices for eggs. Specifically, the buyers (...)

The US District Court for the Northern District of California denies a motion for class certification for a proposed class of indirect purchasers of lithium ion batteries (Lithium Ion Batteries)
McDermott Will & Emery (Washington)
Indirect purchaser plaintiffs’ motion for class certification in a lithium ion battery suit was denied for failing to show concrete evidence linking increased input costs to increased end-product prices; theoretical inference is not enough. What happened: The US District Court for the Northern (...)

The UK Competition Appeal Tribunal refuses a £14 billion class action against a financial service company (Merricks / MasterCard)
Covington & Burling (Brussels)
,
Covington & Burling (Brussels)
,
Covington & Burling (London)
On Friday, July 21, 2017, the UK’s Competition Appeal Tribunal (the “CAT”) handed down its second class certification decision under the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). It dismissed the application for two reasons. First, the proposed representative (...)

The US District Court in the Southern District of New York dismisses a class action lawsuit alleging a large number of entities and individuals in a cartel case (Sea brent crude oil)
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
The U.S. District Court in the Southern District of New York recently dismissed a class action lawsuit alleging, among other claims, that a large number of entities and individuals in the market for producing, refining and trading Brent crude oil (together, Defendants) manipulated the prices of (...)

The UK Competition Appeal Tribunal hands down its first-class certification judgment on concerted practices in the mobility scooter sector (Dorothy Gibson / Pride Mobility Products)
Covington & Burling (Brussels)
After a wait of nearly 15 months from the introduction of class actions in the UK for antitrust damages claims, the first class certification hearing took place before the UK’s Competition Appeal Tribunal (the “CAT”) between December 12 and 14. Having heard argument, the CAT is considering (...)

The UK Competition Appeal Tribunal hands down its first-class certification for entering into agreements and concerted practices aimed at prohibiting the online advertising of certain models of mobility scooter (Dorothy Gibson / Pride Mobility Products)
Covington & Burling (Brussels)
,
Covington & Burling (Brussels)
,
Covington & Burling (London)
The UK’s Competition Appeal Tribunal (the “CAT”) has handed down its first class certification judgment in relation to the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). The result? The hearing has been adjourned, with the proposed representative allowed to file and (...)

The UK Competition Appeal Tribunal allows the first class action brought under the competition law collective redress regime and continues providing some clarifications on important aspects of the regime (Dorothy Gibson / Pride Mobility Products)
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
Already, 2017 has seen significant developments in the UK’s competition litigation landscape. Most recently, last Friday the Competition Appeal Tribunal (CAT) allowed the first ’class action’ brought under the new competition law collective redress regime to continue, at least for now, providing (...)

The US Court of Appeals for the Third Circuit upholds a ruling that indirect purchasers did not meet the requirements for class certification (Class 8 Transmission)
Crowell & Moring (Washington)
,
McDermott Will & Emery (Washington)
On February 9, the US Court of Appeals for the Third Circuit upheld a ruling by the US District Court for the District of Delaware that indirect purchasers of Class 8 transmissions did not meet the requirements for class certification. The Third Circuit found that only the individual claims may (...)

The US Court of Appeals for the Second Circuit vacates and reverses an antitrust verdict in a historic first case for a Chinese government agency to appear as amicus in US court and inform the court of applicable Chinese law (Vitamin C)
Baker McKenzie (Brussels)
,
Baker McKenzie (New York)
,
Baker McKenzie (Washington D.C.)
The United States Court of Appeals for the Second Circuit (the Second Circuit) in New York has vacated and reversed a USD 147 million antitrust verdict against a Chinese vitamin C manufacturer and its holding company, ruling that the district court should have granted Defendants’ original motion (...)

The US Court of Appeals for the Second Circuit vacates a $147 million antitrust judgement on international comity grounds against a vitamin-C manufacturer who was legally required to set prices and reduce quantities abroad (Vitamin C)
Freshfields Bruckhaus Deringer (Hong Kong)
,
Freshfields Bruckhaus Deringer (Washington)
,
Freshfields Bruckhaus Deringer (Hong Kong)
On September 20, in a landmark decision, the US Court of Appeals for the Second Circuit reversed a district court’s decision in In re: Vitamin C Antitrust Litigation on international comity grounds. In vacating a $147m antitrust judgment against Chinese vitamin C manufacturers, the Second (...)

The US Supreme Court agrees to hear an appeal against two financial services companies for fixing ATM fees charges (Visa / Mastercard)
Hausfeld (Philadelphia)
In Visa Inc. v. Osbor (“Osborn”), the Supreme Court recently agreed to hear a consolidated appeal from the D.C. Circuit’s decision that plaintiffs in three related antitrust actions against Visa, Mastercard, and several of their member banks had sufficiently alleged a conspiracy to fix ATM fees (...)

The US FTC urges the Court of Appeals for the First Circuit to hold that a reverse payment need not be in cash (Loestrin)
DLA Piper Weiss-Tessbach (Vienna)
U.S. FTC urges the Appeals Court to revive the Loestrin Suit* On December 7, 2015, during oral argument, the U.S. FTC urged the Court of Appeals for the First Circuit to revive the Loestrin suit. The case concerns a so-called reverse payment settlement. In 2009 Watson Pharmaceuticals agreed (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Crowell & Moring (New York)
First Circuit boosts antitrust challenges to pay-for-delay settlements by finding non-cash deals subject to Actavis scrutiny*Antitrust challenges to so-called “pay-for-delay” settlements—in which brand-name drug makers temporarily keep generics out of the market by making payments to would-be (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Rutgers University (Camden)
On February 22, 2016, in the second federal appellate drug patent settlement ruling since the Supreme Court’s decision in FTC v. Actavis, 133 S. Ct. 2223 (2013), the U.S. Court of Appeals for the First Circuit vacated a lower court decision granting a motion to dismiss for defendants. Writing (...)

The US Court of Appeals for the Ninth Circuit hears interesting oral argument on Foreign Trade Antitrust Improvements Act related issues (Best Buy / Hannstar Display)
GeyerGorey (Washington)
Ninth Circuit’s Oral Argument on FTAIA Related Appeal* If an FTAIA related case is ever taken by the Supreme Court I believe it will be a private civil price fixing damage case like Best Buy Co., Inc. v. Hannstar Display Corporation. The Antitrust Division’s international cartel prosecutions (...)

The US District Court for the Northern District of California allows a class action alleging price-fixing in the capacitors sector to go forward (Capacitors Antitrust Class action)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
In re Capacitors Antitrust Class Action Litigation Survives Motion to Dismiss* Direct and indirect capacitor purchasers who filed class action complaints against an alleged worldwide cartel of capacitor manufacturers have, for the most part, survived a motion to dismiss in the Northern (...)

The US Circuit Court of Appeals for the Third Circuit annuls a district court’s order which certified a class of direct purchasers in a price-fixing suit in the blood reagents market (Ortho Clinical Diagnostics)
McDermott Will & Emery (Paris)
On Wednesday, April 8, 2015, the Third Circuit Court of Appeals vacated a district court’s order certifying a class of direct purchasers of blood reagents in a price-fixing suit against Ortho-Clinical Diagnostics Inc. In re Blood Reagents, case number 12-4067. Plaintiffs allege that (...)

The US Court of Appeals for the Ninth Circuit stresses the importance for Sherman Act litigants to support their claims of antitrust injury-in-fact with market facts (Netflix)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
Ninth Circuit Affirms Dismissal of Netflix Antitrust Suit* Last Friday, the Ninth Circuit affirmed the dismissal of a multidistrict class action brought by Netflix subscribers who claimed the company conspired with Walmart to dominate the online DVD sales and rental markets. In 2005, Netflix (...)

The Higher Regional Court Düsseldorf dismisses transferred follow-on damages claims because of the shift of the risk of litigation costs (Cartel Damages Claims)
Hogan Lovells (Munich/Frankfurt)
,
Freshfields Bruckhaus Deringer (Berlin)
I. The Facts The judgment by the Higher Regional Court Düsseldorf (HRC Düsseldorf) put an end to 10 years of on-going legal dispute that started after the German Federal Cartel Office (FCO) disclosed various regional quota cartels, operating for a number of years until 2002, in the German cement (...)

The US District Court for the Southern District of New York allows alleged manipulation of foreign exchange rates claim to go forward, distinguishing the case from the LIBOR ones (FX Benchmark rates)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
Motion to Dismiss Denied in FX Rigging Case* A federal judge in New York on Wednesday allowed a consolidated class action by U.S.-based investors concerning the rigging of the foreign exchange (FX) market to move forward. In denying a motion to dismiss, U.S. District Judge Lorna G. Schofield (...)

The US Court of Appeals for the Sixth Circuit upholds the dismissal of price-fixing claims against two home brokerage service firms because circumstantial evidence did not exclude the possibility of independent conduct (Hyland / HomeServices of America)
McDermott Will & Emery (Paris)
On November 13, 2014, the Sixth Circuit Court of Appeals upheld the dismissal of price-fixing claims against two home brokerage service firms in Kentucky, McMahon Co. and HomeService of America, Inc. Hyland, et al. v. HomeServices of America Inc., et al., case number 12-5947. The plaintiffs, (...)

The US District Court for the District of New Jersey allows bid-rigging claims concerning municipal tax lien auction to proceed (New Jersey tax sales certificates)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
Antitrust Claims Survive Motions to Dismiss in the New Jersey Tax Lien Bid-Rigging Class Action* The plaintiffs’ antitrust claims in the New Jersey municipal tax lien auction bid-rigging class action may proceed, the federal judge presiding over the litigation has ruled. New Jersey (...)

The US District Court for the Northern District of Texas dismisses with prejudice a class action’s plaintiffs that have not overcome the pleading deficiencies following the first judicial review of their pleadings (OTC Hotel Booking)
Ashurst (Milan)
U.S. District Court for the Northern District of Texas dismissed Second Consolidated Amended Complaint against hotel chains and online travel agencies* On 28 October 2014 the U.S. District Court of the Northern District of Texas dismissed with prejudice a class action against hotel chains and (...)

The US District Court for the Northern District of California rejects the $324.5 million settlement in a class action following the DOJ civil lawsuit for a per se violation (High-tech wage collusion)
GeyerGorey (Washington)
The Unusual Hi-Tech Hiring Collusion Case: Judge Rejects Proposed Settlement; DOJ Brought Civil “Per Se” Cases* Last Friday Judge Lucy H. Koh issued an unusual ruling in a somewhat unusual case. The ruling was unusual in that the court rejected a proposed settlement in the hi-tech wage (...)

The US District Court for the Northern District of California holds that NCAA restrictions on college players exploiting and receiving licensing revenue from the use of their names, images and likenesses violate antitrust law (O’Bannon / NCAA)
Constantine Cannon (New York)
,
Constantine Cannon (New York)
NCAA’s Loss In O’Bannon Trial May Be Only A Partial Victory For Competition* Although competition scored a win on Friday in the student athletes’ antitrust suit led by former UCLA basketball player Ed O’Bannon against the NCAA, it wasn’t a complete blowout. Judge Claudia Wilken of the U.S. (...)

The US District Court for the Southern District of New York denies motions for summary judgment in 2 class action suits alleging anticompetitive conduct in markets for TV & internet sports broadcasting (Laumann / National Hockey League & Lerner / Office of the Commissioner of Baseball)
McDermott Will & Emery (Paris)
On Friday, August 8, 2014, the Southern District of New York denied motions for summary judgment filed by the National Hockey League, Major League Baseball, Comcast Corp. and DirecTV LLC in suits alleging that these organizations and television providers conspired to hinder competition in (...)

The US District Court for the Southern District of New York receives notification that both the class plaintiffs, state plaintiffs and the defendants have reached an agreement concerning the lawsuit in the e-books price 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 (...)

Private Enforcement in the US: An overview of leading cases
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Historically, those supporting strong antitrust enforcement have tended to agree with observations by the Supreme Court, made principally in the 1970s, that class actions play a vitally important role in antitrust enforcement. Indeed, when the bipartisan Antitrust Modernization Commission (...)

The US District Court for the Northern District of California 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 Canadian Supreme Court of British Columbia certifies a class action subject to a requirement for the plaintiff to redraft pleadings in order to conform to several key court holdings (Watson / Bank of America)
Steve Szentesi Law Corporation (Vancouver)
BC Court Certifies Visa/MasterCard Conspiracy Class Action* In an interesting and important decision issued late last week, the British Columbia Supreme Court has certified a Competition Act class action against Visa Canada Corporation, MasterCard International Inc. and a number of major banks (...)

The US District Court for the District of Minnesota dismisses a putative antitrust class action saying the plaintiff’s allegations were barred by the statute of limitation (Graco)
McDermott Will & Emery (Paris)
ANTITRUST CLASS ACTION AGAINST GRACO INC. DISMISSED * On March 11, 2014, Judge Ann Montgomery of the District of Minnesota dismissed a putative antitrust class action against Graco Inc. and its distributors that accused Graco of buying two of its closest competitors in the spray foam equipment (...)

The US District Court for the Northern District of Texas 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 for the Eastern District of New York 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 (...)

The US District Court for the Northern District of California certifies a class of student athletes seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)
Orrick, Herrington & Sutcliffe (San Francisco)
Injunctive Relief, but not Damages Class, Certified in NCAA Student-Athlete Litigation* In In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 2013 U.S. Dist. LEXIS 160739 (N.D. Cal. Nov. 8, 2013) (Wilken, J.)., the Court certified a class of current and former (...)

The Canadian Supreme Court rejects the passing-on defence in relation to price fixing in the market for compatible PC software (Pro‑Sys Consultants / Microsoft)
Blackstone Chambers (London)
Canadian Supreme Court: No such thing as passing on defence* On Thursday last week the Supreme Court of Canada handed down three much-anticipated judgments concerning indirect purchaser claims. The trio of cases point towards a distinctive, and in many respects more claimant-friendly, approach (...)

The Canadian Supreme Court clears the way for indirect purchaser competition class action related to compensation for harm caused by inflating the price of microchips (Infineon / Pro-Sys / Sun-Rype)
Steve Szentesi Law Corporation (Vancouver)
Canadian Supreme Court Clears the Way for Indirect Purchaser Competition Class Actions: Reason and Clarity Prevail in Previously Muddled Area* Earlier today the Supreme Court of Canada (“SCC”) released three long-awaited companion judgments that finally create clarity and certainty in the area (...)

The Canadian Supreme Court allows indirect purchaser claims for a cartel infringement in the market for processor compatible software (Infineon / Pro-Sys / Sun-Rype)
Davies Ward Phillips & Vineberg (Toronto)
Supreme Court of Canada Allows Indirect Purchaser Claims* Note: On October 31, 2013, Canada’s Supreme Court issued important decisions regarding the scope of private claims for civil damages under the Competition Act. Below is a note prepared by Davies Ward Phillips & Vineberg on these (...)

The US District Court for the Northern District of California certifies class action lawsuit alleging price fixing in the market for cathode ray tubes clarifying that for class certification the plaintiffs need only show that common questions predominate over questions affecting only individual members (CRT)
McDermott Will & Emery (Chicago)
On September 24, 2013, the Northern District of California certified a class of indirect purchasers in In re Cathode Ray Tube Antitrust Litig., No. 3:07-cv-5944 SC, 2013 WL 5391159 (N.D. Cal. September 24, 2013). The case was brought by indirect purchasers of products containing cathode ray (...)

The US District Court for the Northern District of California jury finds an electronics company liable for conspiring to fix prices on liquid crystal display panels and awards damages (Best Buy Company / HannStar Display / Toshiba)
McDermott Will & Emery (Chicago)
On September 3, 2013, a California federal jury unanimously found HannStar Display Corp. liable for conspiring to fix prices on liquid crystal display (LCD) panels. However, the jury found co-defendant Toshiba Corporation not liable. The jury awarded plaintiff Best Buy Company $7.47 million (...)

The US Court of Appeals for the Third Circuit adopts the rule of reason analysis in evaluating the legality of reverse payment settlements by rejecting the "scope of patent" test and creating a Circuit split on this issue (Louisiana Wholesale Drug Company / Schering / Upsher-Smith)
Gill Jennings & Every (London)
On 16 July 2012, the US Third Circuit Court of Appeals rejected the scope of the patent test used by the New Jersey District Court in concluding that the patent settlement agreements (“Agreements”), providing for payments from Schering-Plough Corporation (“Schering”) (subsequently acquired by Merck (...)

The US Court of Appeals for the Third Circuit applies the rule of reason and rejects the "scope of the patent" test when pharma patent settlement violates the antitrust laws (Schering-Plough)
Hyman, Phelps & McNamara (Washington DC)
In our post, “Hot Ticket Item – Patent Settlement Agreement Challenges,” we provided a round-up of the latest and greatest from ongoing litigation concerning patent settlement agreements (or “pay-for-delay” agreements if you prefer that term – we don’t). It’s only been about three weeks since that (...)

The US Court of Appeals for the Third Circuit holds that reverse payment settlements between brand name and generic pharmaceutical manufacturers may be unlawful under the rule of reason (Schering-Plough)
Arnold & Porter Kaye Scholer (Washington)
,
Hooper Hathaway (Michigan)
On July 16, 2012, in an opinion authored by Judge Sloviter, the Third Circuit issued its decision in the K-Dur “reverse payments” case, holding that although such settlements are not illegal per se, they are presumptively unlawful under the rule of reason. In so doing it rejected the approach (...)

The US Court of Appeals for the Third Circuit rejects the "scope of the patent" test in an antitrust challenge to patent settlements (Schering-Plough)
Wolters Kluwer (Riverwoods)
Third Circuit Rejects Scope-of-Patent Test in Antitrust Challenge to K-Dur Patent Settlement* Reverse payments settlements between patent holders and would-be generic competitors in the pharmaceutical industry should be reviewed under a “quick look” rule of reason analysis based on the economic (...)

The US Court of Appeals for the Third Circuit rejects the “scope of the patent” test in favor of a quick look rule of reason analysis when reviewing reverse payment settlements between patent holders and potential generic competitors in the pharmaceutical industry (Schering-Plough)
Vinson & Elkins (Dallas)
Citing the dire consequences for companies seeking to comply with antitrust law in the wake of a direct circuit split, major pharmaceutical makers are asking the Supreme Court to review a Third Circuit decision that declared settlement payments by brand-name pharmaceutical companies to (...)

The US Court of Appeals for the Ninth Circuit holds direct-purchaser antitrust plaintiffs lack standing to seek damages for alleged antitrust price-fixing in the ATM services (ATM Fee)
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 Court of Appeals for the Seventh Circuit potentially expands the extraterritorial reach of the US antitrust laws (Minn-Chem / Agrium)
Davis Polk & Wardwell (New York)
,
Davis Polk & Wardwell (New York)
,
Gibson Dunn (New York)
This article has been nominated for the 2013 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction The U.S. Court of Appeals for the Seventh Circuit (the “Court”) recently potentially expanded the extraterritorial reach of the U.S. antitrust laws. (...)

The US Court of Appeals for the Seventh Circuit rules that a foreign anticompetitive conduct may be subject to US antitrust laws (Minn-Chem / Agrium)
Covington & Burling (Washington)
,
Covington & Burling (Washington)
,
Covington & Burling (Washington)
Yesterday, the influential Court of Appeals for the Seventh Circuit, sitting en banc, held that foreign anticompetitive conduct can be regulated by U.S. antitrust law if it has “a reasonably proximate causal nexus” with an injury to a U.S. purchaser. The Seventh Circuit explicitly rejected the (...)

The US Court of Appeals for the Seventh Circuit takes broad view of the foreign trade antitrust improvements Act (Minn-Chem / Agrium)
US Department of Justice - Antitrust Division (Washington)
,
Theodora Oringher (Orange County)
,
Katten Muchin Rosenman (Orange County)
Overview In a much-awaited decision, the Seventh Circuit has taken a broad view of the ability of U.S. courts to hear antitrust cases concerning alleged foreign cartel activity that plaintiffs contend has effects in the U.S. The Court’s ruling reviving a cartel case in the potash industry is (...)

The Kansas Supreme Court condemns vertical price fixing agreements as per se illegal under the Kansas Restraint of Trade Act (O’Brien / Leegin Creative Leather Products)
Wolters Kluwer (Riverwoods)
Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal* Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of (...)

The Kansas Supreme Court holds that resale price maintenance, whether purely vertical or in a dual distribution setting, is per se illegal and rejects applicability of federal rule of reason analysis to claims brought under Kansas antitrust law (O’Brien / Leegin Creative Leather Products)
Crowell & Moring (Washington)
,
Crowell & Moring (Irvine)
,
Crowell & Moring (Washington)
UPDATE NOTE: On April 16, 2013, the Kansas legislature reversed the decision discussed below, and adopted a "reasonableness" standard for analyzing vertical price agreements. On May 4, 2012, Kansas joined the growing trend among states to limit the distribution flexibility that had been (...)

The Kansas Supreme Court holds resale price maintenance is per se illegal under state law, but ruling subsequently overturned by state legislature (O’Brien / Leegin Creative Leather Products)
McDermott Will & Emery (Washington)
,
McDermott Will & Emery (Washington)
The Kansas Supreme Court recently determined resale price maintenance is per se illegal under state law, becoming the latest state to reject the rule of reason standard mandated by the Supreme Court of the United States. The decision serves as a reminder that although a supplier’s pricing (...)

The US District Court for the District of New Jersey dismisses the claims of the indirect purchasers in price-fixing litigation (Magnesium Oxide)
Constantine Cannon (New York)
,
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 District Court for the District of New Jersey dismisses the claims of the indirect purchasers for lack of standing to bring a cause of action (Magnesium Oxide)
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 Korean Fair Trade Commission offers funding private antitrust class action against two electronics companies fines for price-fixing (Samsung / LG)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Competition authorities around the globe are taking an increasingly active part in the pursuit of civil claims for damages for antitrust infringements. The (...)

The US District Court for the Northern District of Ohio 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., (...)

The US District Court for the Northern District of California receives class action lawsuit alleging price-fixing of e-books sales between five major publishers and a leading electronic devices producer (Hachette Book / HarperCollins / Apple)
Sidley Austin (Brussels)
Is Apple forcing customers to pay more for e-books? - Global developments in the alleged e-book price-fixing case* European investigations On December 6, 2011 the European Commission announced that it opened formal proceedings to examine whether five major international publishers (Hachette (...)

The US District Court for the Southern District of New York dismisses class action alleging electricity overcharges (Simon / Keyspan)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
KeySpan Corporation secured a sweeping victory on March 22, 2011, in the U.S. District Court for the Southern District of New York. Judge Shira Scheindlin’s broad decision granted with prejudice KeySpan’s motion to dismiss a putative consumer class action claiming approximately $360 million in (...)

The US District Court for the Southern District of New York approves a settlement in a class action based on LCD price-fixing suit (In re LG Philips LCD)
Arent Fox (New York)
On March 11, 2011, Judge Richard Sullivan of the US District Court for the Southern District of New York gave final approval to a settlement between LG Display Co. Ltd. (“LG”) and a class of investors who alleged that LG’s stock price was artificially inflated due to LG’s undisclosed participation (...)

The US Court of Appeals for the Eleventh Circuit affirms a ruling of dismissal over 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 UK Court of Appeal upholds Chancellor’s order striking out "representative parts" of a class action claim (Emerald / British Airways)
Ropes & Gray (London)
,
Latham & Watkins (London)
Class Actions in the U.K: Emerald Supplies Limited & Anr. v. British Airways plc* The U.K. Court of Appeal has recently rebuffed an attempt by Plaintiff’s firm, Hausfeld, to bring a collective “opt out” style action using Rule 19.6 of the CPR rules (Emerald Supplied Limited v. British Airways (...)

The US Court of Appeals for the Third Circuit vacates a class action settlement in diamond industry favoring the status of direct purchasers for antitrust laws enforcement in US courts (Sullivan / DB Investments)
Gibson Dunn (New York)
In U.S., It’s Getting Harder to Bring Consumer Antitrust Class Actions* One of the inevitable facts of life in the U.S. after a government antitrust investigation becomes public – especially if it is a cartel investigation with an amnesty applicant or guilty pleas – is customer class actions. (...)

The US Court of Appeals for the Second Circuit affirms dismissal of antitrust claims addressing the proper application of the implied preclusion doctrine (Electronic Trading Group / Banc of America Securities)
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
On December 3, 2009, in In re Short Sale Antitrust Litigation (No. 08-0420-cv), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action alleging collusion among certain financial institutions that serve as “prime brokers” in connection with short sale (...)

The US Court of Appeals for the Ninth Circuit 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. (...)

The US District Court for the Eastern District of Pennsylvania 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 (...)

The UK High Court strikes out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, refusing to stretch the scope of the English civil procedure rules in order to encourage the bringing of private damages actions (Emerald Supplies / British Airways)
European Commission - Legal Service (Brussels)
In striking out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, the English High Court has refused to stretch the scope of the English civil procedure rules in order to facilitate the bringing of such damages actions. Background The (...)

The UK High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald / British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (London)
,
Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana
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 defines minimum pleading standard in antitrust class action (Bell Atlantic / Twombly)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
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 (...)

Unilateral Practices

The US Court of Appeals for the Third Circuit upholds a lower Court’s ruling certifying a class of pharmaceutical drug purchasers alleging that the defendant engaged in anticompetitive behaviour to maintain its monopoly over a drug (Suboxone / Indivior)
Hausfeld (Washington)
On July 28, 2020, a Third Circuit Court of Appeals panel unanimously upheld a lower court ruling certifying a class of Suboxone purchasers who alleged that the defendant Indivior Inc. engaged in anticompetitive behavior to maintain its monopoly over the drug. The Third Circuit panel rejected (...)

The Ontario Superior Court holds that misleading information can trigger class actions as a breach of the Competition Act (Rebuck / Ford Motor)
Steve Szentesi Law Corporation (Vancouver)
Key Requirements For Misleading Advertising Civil Actions Confirmed By Ontario Superior Court* In a recent case handed down by the Ontario Superior Court of Justice, in Rebuck v. Ford Motor Company, the Court confirmed key requirements for commencing Competition Act misleading advertising (...)

The US District Court for the Central District of California hears private enforcement actions alleging price discrimination by an energy drink manufacturer (Living Essentials)
Bona Law (Detroit)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. ROBINSON-PATMAN SUITS AGAINST 5-HOUR ENERGY MAKER PROVIDE LESSONS FOR OTHER SUPPLIERS* Living Essentials LLC, the maker of 5-hour Energy drinks, has faced two (...)

The US District Court for the Northern District of California Judge expresses possible abuses in asserting legal privilege (Qualcomm / FTC)
DLA Piper Weiss-Tessbach (Vienna)
U.S. Qualcomm Case Update: Privilege Assertions* On 22 March 2018, in a court hearing in the Qualcomm case, Judge Koh expressed her concern over possible abuses in asserting legal privilege over certain documents. In January 2017, the U.S. FTC sued Qualcomm, alleging that the company (...)

The US Court of Appeals for the Second Circuit clarifies that a patent holder’s contractual duty to deal is not necessarily subject to an antitrust duty to deal (Louisiana Wholesale Drug Company / Shire)
McDermott Will & Emery (Paris)
Addressing for the first time whether a patent holder under a contractual duty to deal is also subject to an antitrust duty to deal, the U. S. Court of Appeals for the Second Circuit upheld dismissal of a putative antitrust class action challenge to a drug manufacturer’s refusal to fully supply (...)

The US District Court for the District of California dismisses an action brought by a putative class of consumers on claims of monopolization of the aftermarket for phone apps (Apple)
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 Court of Appeals for the Ninth Circuit affirms the District Court’s denial of class certification and the dismissal of the complaint with prejudice (Sommers / Apple)
Orrick, Herrington & Sutcliffe (San Francisco)
If Your Allegations Don’t Establish a Price Effect, You May Lack Antitrust Standing* In Somers v. Apple, Inc., Case No. 11-16896 (9th Cir. Sept. 3, 2013), the Ninth Circuit affirmed the district court’s dismissal of a putative class action against Apple, Inc., alleging antitrust violations in (...)

The US District Court for the District of Minnesota dismisses an antitrust complaint on the basis that copyright owners may exclude others from using even portions of their work in the market for footage of professional football games (Washington / NFL)
Loeb & Loeb (New York)
,
Loeb & Loeb (Los Angeles)
,
Loeb & Loeb (Los Angeles)
Plaintiffs Gene Washington, Diron Talbert, and Sean Lumpkin, former professional football players, brought a class action suit against the National Football League and a number of affiliated entities, including each of the 32 NFL teams, alleging that the NFL defendants, by constraining (...)

The Chinese Supreme Court issues rules governing private antitrust litigations arising from monopolistic conducts
Covington & Burling (Washington)
,
Covington & Burling (Washington)
,
Covington & Burling (Beijing)
On May 8, China’s Supreme People’s Court (“SPC”) issued its Rules on the Application of Laws for Adjudicating Civil Disputes Arising From Monopolistic Conduct (“the Rules”). According to the SPC, the Rules, which take effect June 1, are intended to ease plaintiffs’ burdens and are thus likely to have (...)

The US District Court for the Southern District of Ohio dismisses indirect purchasers’ class action challenging proposed reverse payment agreements as anticompetitive on an allegation of preventing a cheaper generic medicine to enter the market sooner (Plavix)
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 District Court for the District of Ohio grants summary judgement in a class action suit alleging that a drug manufacturer’s rebates to pharmacy benefit managers to obtain an exclusive listing do not violate the Sherman Act (Wyeth / J.B.D.L)
Jones Day (Washington DC)
A U.S. District Court in Ohio granted summary judgment for defendants in a class action suit alleging that a drug manufacturer’s rebates to pharmacy benefit managers in order to obtain an exclusive listing in the PBMs’ drug formulary violated Section 1 of the Sherman Act. The plaintiffs, (...)

Mergers

The US District Court for the Northern District of Illinois certifies a class action in challenging a consummated merger in the healthcare system services (Evanston Northwestern)
McDermott Will & Emery (Paris)
On December 10, 2013, Judge Edmond Chang of the Northern District of Illinois certified a class of plaintiffs who filed a proposed class action against NorthShore University Health System (formerly Evanston Northwestern Healthcare) on behalf of all end-payors who purchased inpatient and (...)

The US District Court for the Northern District of California starts hearings in a class action case where the plaintiffs argue that the previous US 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

The US Court of Appeals for the Ninth Circuit clarifies class certification standards in an antitrust appeal (Olean Wholesale Grocery / Bumble Bee Foods)
Jones Day (San Francisco)
,
Jones Day (San Francisco)
,
Jones Day (Irvine)
The Ninth Circuit approved use of statistical analysis that relies on averaging but reversed class certification because the district court failed to resolve whether more than a de minimis number of putative class members were injured. On April 6, 2021, in Olean Wholesale Grocery Coop. v. (...)

The UK Court of Appeal confirms that collective proceedings’ funding arrangements are not damages-based agreements (DAF)
Ashurst (London)
,
Ashurst (London)
On 5 March 2021, the Court of Appeal upheld a decision of the Competition Appeal Tribunal ("CAT") that the funding arrangements in place in two collective proceedings arising from the Trucks cartel are not damages-based agreements ("DBAs"). What you need to know - key takeaways The decision (...)

The UK Court of Appeal dismisses a request for appeal as the Tribunal’s funding judgment does not fall within the ambit of section 49(1A) of the Competition Act (DAF)
Hausfeld (London)
,
Hausfeld (London)
Following a rolled-up hearing comprising a panel of three judges sitting as both the Court of Appeal and the Divisional Court, a judgment earlier this month has provided helpful clarity on two important aspects relating to the collective proceedings regime: (i) the extent to which litigation (...)

The UK Supreme Court receives actions from consumers and small businesses to seek redress for price fixing and abuses of dominant power in the financial services sector (Merricks / Mastercard)
Hausfeld (London)
In 2015, the legislation introducing a UK collective litigation procedure for competition claims came into force – enabling consumers and small businesses to seek redress for the anti-competitive behaviours of price fixing and abuses of dominant power. Five years later, and such a collective (...)

The UK Supreme Court dismisses the appeal of a financial services company in a class action related to an alleged overcharging of interbank fees (Merricks / Mastercard)
Covington & Burling (London)
,
Covington & Burling (London)
,
Covington & Burling (Brussels)
The UK Supreme Court has today ruled in favour of Walter Merricks, the former head of the UK Financial Ombudsman Service., in a hotly-anticipated judgment in the first opt-out competition class action brought in the UK. Background Mr Merricks is the proposed class representative for 46.2 (...)

The UK Supreme Court overturns a Competition Appeal Tribunal’s ruling and clarifies the class action regime in a proceeding brought against a credit card company (Merricks / Mastercard)
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
Earlier today the Supreme Court handed down its hotly-anticipated judgment regarding the certification of an opt-out competition collective action brought by Walter Merricks against Mastercard. The claim is seeking £14bn in damages on behalf of some 46.2 million UK consumers, in respect of (...)

The UK Supreme Court dismisses the appeal of a financial services company by upholding the decision of the Court of Appeal and makes a significant impact on the national collective proceedings for the future (Merricks / Mastercard)
White & Case (London)
,
White & Case (London)
In a landmark judgment (and in unusual circumstances), the UK Supreme Court has held that the ongoing Merricks v Mastercard case should be referred back to the Competition Appeal Tribunal (CAT). Not only is this a step towards Merricks’ claim that interchange fees were "an invisible tax on UK (...)

The UK Supreme Court hands down a significant judgment relating to the certification of a £14bn opt-out competition collective action brought against a credit card company (Merricks / Mastercard)
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
On 11 December 2020 the Supreme Court handed down a very significant judgment relating to the certification of a £14bn opt-out competition collective action brought by Walter Merricks against Mastercard, in respect of losses alleged to have resulted from the use of anti-competitive multilateral (...)

The UK Supreme Court gives guidance on collective proceedings in competition appeal tribunal in the financial services sector (Merricks / Mastercard)
Shearman & Sterling (London)
,
Shearman & Sterling (Brussels)
,
Shearman & Sterling (London)
In our May 2020 Competition Litigation Update, we covered the hearing of the landmark Supreme Court case of Mastercard Incorporated v Walter Hugh Merricks [2020] UKSC 51. The Supreme Court has now handed down its judgment in the case which concerned the test for the certification of collective (...)

The UK Supreme Court lowers the bar for certification of class actions when giving its judgment against a financial services company (Merricks / Mastercard)
Hogan Lovells (London)
,
Hogan Lovells (London)
,
Hogan Lovells (London)
In a key decision, the UK Supreme Court has given guidance on the threshold for certifying a class action for breach of competition law. The Court’s judgment in Mastercard v Merricks will make it easier to obtain class certification and will likely encourage a significant increase in class (...)

The UK Supreme Court hands down a landmark judgment, finding that the Competition Appeal Tribunal incorrectly rejected an application for certification to bring collective proceedings (Merricks / Mastercard)
Bird & Bird (London)
,
Bird & Bird (London)
,
Bird & Bird (London)
The UK Supreme Court has handed down a landmark judgment, finding that the Competition Appeal Tribunal (CAT) incorrectly rejected an application for certification to bring collective proceedings. This decision sets out important clarifications on the framework to be applied by the CAT when (...)

The UK Supreme Court sends back to the UK Competition Appeal Tribunal a £14 billion class action lawsuit against a credit card company (Merricks / Mastercard)
Van Bael & Bellis (Brussels)
On 11 December 2020, the UK’s Supreme Court sent a planned £ 14 billion class action lawsuit against Mastercard back to the Competition Appeal Tribunal (“CAT”) for review. This is the first collective proceedings case of this kind to reach the Supreme Court and it addresses important questions (...)

The UK Supreme Court lowers the bar on certification for collective actions by dismissing a credit card company’s appeal (Merricks / Mastercard)
Ashurst (London)
,
Ashurst (London)
In a highly anticipated ruling, the UK Supreme Court has dismissed Mastercard’s appeal against the principles established by the Court of Appeal (on appeal from the UK’s Competition Appeal Tribunal ("CAT")) in relation to the approval of class actions by the CAT. The case will now be remitted to (...)

The UK Supreme Court clarifies low bar for class action certification (Merricks / Mastercard)
Skadden, Arps, Slate, Meagher & Flom (London)
,
Skadden, Arps, Slate, Meagher & Flom (London)
,
Skadden, Arps, Slate, Meagher & Flom (London)
On 11 December 2020, the U.K. Supreme Court (the Court) handed down its much-awaited ruling in Merricks v Mastercard, dismissing Mastercard’s appeal against the English Court of Appeal’s April 2019 decision in a 3-2 ruling. The main aspects of the decision are explained below: This ruling (...)

The UK Court of Appeal clarifies the ability of parties that settle EU Commission antitrust investigations to challenge the Commission’s findings in follow-on damages actions (Trucks cartel)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
The Court of Appeal has handed down an important judgment clarifying the ability of parties that settle European Commission (Commission) antitrust investigations to challenge the Commission’s findings in follow-on damages actions. The judgment concerns an appeal relating to a preliminary issue (...)

The UK Court of Appeal dismisses an appeal relating to the evidential weight to be given to recitals to an EU Commission infringement decision issued under the settlement procedure (Trucks cartel)
Ashurst (London)
,
Ashurst (London)
On 11 November 2020, the Court of Appeal emphatically dismissed an appeal brought by five truck manufacturers against a judgment of the Competition Appeal Tribunal ("CAT") handed down in March 2020 relating to the evidential weight to be given to recitals to a European Commission infringement (...)

The Regional Court of Munich dismisses follow-on damages claims totaling €600 million against participants in a truck cartel (Trucks cartel)
Court of First Instance of Namur (Namur)
On 7 February 2020, the Regional Court of Munich (the “Court”) dismissed a follow-on claim for damages brought by litigation vehicle Financial right, a registered legal services company. The claim followed a 2016 fining decision of the European Commission (the “Commission”) against participants in (...)

The US Supreme Court rejects an attempt to block consumer claims against a big tech company under the indirect-purchaser rule (Apple / Pepper)
Jones Day (Silicon Valley)
,
Jones Day (Houston)
,
Jones Day (Los Angeles)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In May 2019, the U.S. Supreme Court issued a 5–4 decision in Apple v. Pepper, one of the Court’s most significant antitrust rulings of the last several years. In a (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision in favour of consumers in collective proceedings against a credit card company (Merricks / Mastercard)
Allegro Consulting (Brussels)
Walter Merricks v. Mastercard, Paving the Way for Economic Analysis in Class Actions* The England and Wales Court of Appeal has overturned the Decision of the United Kingdom Competition Appeals Tribunal (CAT) in the collective proceedings Walter Merricks v MasterCard, where final consumers are (...)

The UK Court of Appeal confirms that the first claim under the UK’s flagship "opt-out" regime can proceed (Merricks / Mastercard)
Simmons & Simmons (London)
The action is based on the EU Commission’s finding that MasterCard’s EEA multilateral interchange fees (MIFs) breached Article 101(1) TFEU (see here for further details). That finding was upheld by the European Court of Justice (on appeal by MasterCard) on 11 September 2014 (see our further (...)

The UK Court of Appeal clarifies the collective proceeding regime in a private action against a credit card company (Merricks / MasterCard)
Blackstone Chambers (London)
Merricks v MasterCard: Collective Actions Reinvigorated* The Court of Appeal today gave its much-anticipated judgment in the application to bring collective proceedings against MasterCard: see Merricks v MasterCard Incorporated and others [2019] EWCA Civ 674. It is a major victory for the (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision in landmark collective action (Merricks / Mastercard)
Court of First Instance of Namur (Namur)
On 16 April 2019, the UK Court of Appeal ruled that the Competition Appeal Tribunal (“CAT”) had incorrectly refused to certify a major collective action brought against Mastercard. The collective action seeks approximately GBP 14 billion in damages on behalf of an estimated 46.2 million customers (...)

The UK Court of Appeal overturns a decision refusing a £14 billion class action against a financial services company (Merricks / MasterCard)
Hausfeld (London)
,
Hausfeld (London)
On 16 April 2019, the UK Court of Appeal handed down what is undoubtedly the most significant ruling to date for the UK’s young collective actions regime. The Judgment in Merricks v Mastercard overturned the Competition Appeal Tribunal’s prior ruling refusing certification of Walter Merricks’ £14 (...)

The US Court of Appeals for the Seventh Circuit upholds dismissal of a class action against containerboard manufacturers for conspiring to increase prices and reduce output (Kleen Products / Georgia‐Pacific / West Rock CP)
Wolters Kluwer (Riverwoods)
Seventh Circuit Identifies Difficulties in Challenging* In a decision pondering the adequacy of the Sherman Act to protect consumers from consciously parallel conduct among oligopolists, the U.S. Court of Appeals in Chicago upheld dismissal of a class action against containerboard (...)

The US Court of Appeals for the First Circuit holds that no class containing uninjured members can be certified unless, when moving for class certification, plaintiffs offer a manageable way for defendants to contest at trial whether their conduct injured individual class members (In re: Asacol Antitrust Litigation)
White & Case (New York)
,
White & Case (New York)
,
White & Case (New York)
The U.S. Court of Appeals for the First Circuit’s landmark In re: Asacol Antitrust Litigation decision holds that no class containing uninjured members can be certified unless, when moving for class certification, plaintiffs offer a manageable way for defendants to contest at trial whether their (...)

The US Supreme Court rules, in relation to a class action for conspiracy to fix vitamin prices, that federal courts determining foreign law are not bound by the foreign government’s own interpretation of that law (Animal Science products / Hebei Welcome Pharmaceutical)
Norton Rose Fulbright (New York)
,
Norton Rose Fulbright (Houston)
,
Norton Rose Fulbright (Houston)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In an opinion issued on June 14, 2018, the United States Supreme Court addressed the effect U.S. courts should give to a foreign government’s interpretation of its (...)

The Canadian Court of Appeal accepts additional defendants in a price fixing class action against major banks (Mancinelli / Royal Bank of Canada)
Affleck Greene McMurtry (Toronto)
Court Of Appeal Adds Banks To FX Price Fixing Class Action* In overturning a lower court decision, the Ontario Court of Appeal ruled that TD Bank and BMO would be added as defendants in a price fixing class action against major banks. The case was Mancinelli v. Royal Bank of Canada. The (...)

The Canadian Court of Appeal clarifies the application of the discoverability principle and makes easier for plaintiffs to add defendants (Mancinelli / Royal Bank of Canada)
Steve Szentesi Law Corporation (Vancouver)
Ontario Court of Appeal Makes It Easier For Plaintiffs to Add Defendants Under Competition Act Limitation Provision* The Ontario Court of Appeal recently issued a significant decision in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 (C.A.), in which the Court clarified the application of (...)

The US DoJ Antitrust Division names deputy assistant attorney general for criminal enforcement
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
Richard A. Powers has recently joined the Department of Justice (DOJ) Antitrust Division as the acting deputy assistant attorney general (DAAG) for criminal enforcement and is expected to take on the role permanently. This is important because Mr. Powers will serve as the Antitrust Division’s (...)

The EU Commission launches "New Deal" Consumer legislation on collective redress
Latham & Watkins (Hambourg)
,
Latham & Watkins (Brussels)
,
Latham & Watkins (Brussels)
European Commission Launches “New Deal” Consumer Legislation Covering Digital Services* Proposed new consumer legislation raises regulatory risks for businesses, creating new rights for consumers and introducing potentially increased collective litigation and fines for businesses. The European (...)

The EU Council’s working group proposes a Directive on representative actions for the protection of collective interests of consumers
Bird & Bird (Brussels)
,
Bird & Bird (Brussels)
On 4 and 5 November 2019, the European Council’s Working Group on Consumer Protection and Information discussed the latest compromise proposal, as circulated by the Finnish Presidency of the Council, on representative actions for the protection of collective interests of consumers. The Finnish (...)

The EU Commission proposes a harmonized approach to collective redress such as group or class actions
Skadden, Arps, Slate, Meagher & Flom (London)
,
Skadden, Arps, Slate, Meagher & Flom (Frankfurt)
,
Skadden, Arps, Slate, Meagher & Flom (London)
Despite 20 years of robust legislative activity in the field of consumer protection and the 2013 European Commission recommendation on collective redress mechanisms, a harmonized approach to collective redress such as group or class actions does not exist throughout the European Union. That may (...)

The Italian Supreme Court upholds the class action ruling of the Court of Appeal of Milan on misleading advertising (Voden)
Jones Day (Milano)
,
Jones Day (Munich)
,
Jones Day (Paris)
The Situation: On January 31, 2018, the Italian Supreme Court ruled on the first Italian product-related class action promoted by a consumers’ association. The Result: The Court upheld the consumer’s class action claim regarding the unlawful advertising of a medical device. Looking Ahead: The (...)

The US District Court for the Eastern District of Michigan dismisses a Sherman Act class action lawsuit for lack of antitrust injury (Shain / Advanced Technologies)
Cleary Gottlieb Steen & Hamilton (Rome)
US District Court dismisses a Sherman Act class action lawsuit brought by former and current Bureau of Prison inmates for lack of antitrust injury* On 28 February 2017, the U.S. District Court for the Eastern District of Michigan (hereinafter, “District Court”) dismissed a putative class action (...)

The US Court of Appeal for the Ninth Circuit overturns judgment of the District Court which rejected a class action on the basis of lack of evidence on potential substitutes in geographic markets (Sutter Health)
Crowell & Moring (New York)
Health Plan Members Convince Ninth Circuit to Revive Antitrust Class Action Against Dominant Northern California Healthcare Provider Sutter Health*An antitrust class action challenging the dominance of healthcare provider Sutter Health in Northern California received a new lease on life Friday (...)

The Canadian Supreme Court refuses to approve a fee sharing agreement between two companies on credit card interchange fees (Bancroft-Snell / Visa Canada)
Cassels Brock (Toronto)
Courts have begun to criticize plaintiff lawyers who file multiple overlapping class actions across the country. In Ontario, Perell J. refused to approve an agreement by two BC firms to share their fee with a Saskatchewan-based firm, Merchant Law Group (“MLG”) in Bancroft-Snell v. Visa Canada (...)

The UK Parliament allows opt-out antitrust class actions with strong safeguards
University of East Anglia (Norwich)
Collective actions after the Consumer Rights Act 2015* On 30 March 2015 the Consumer Rights Act 2015 received Royal assent, introducing opt-out collective actions into UK competition law enforcement. The UK system of private enforcement has long being criticised for being ineffective in (...)

The UK Parliament provides powers for the Competition Authority to approve voluntary redress schemes
University of East Anglia (Norwich)
Why harmed consumers may be more satisfied in the future – the CMA’s new redress scheme* In an earlier blog post I wrote about the new opt-out collective action regime introduced by the Consumer Rights Act 2015. This is not the only measure that is to help consumers and other injured parties to (...)

The US Supreme Court provides certainty to plaintiffs about the timing of their appeal in multidistrict litigations (Gelboim / Bank of America)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
,
Patterson Belknap Webb & Tyler (New York)
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 allows appeal of a 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 Canadian Supreme Court confirms plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations (Imperial Oil)
Steve Szentesi Law Corporation (Vancouver)
Canadian Supreme Court Clears Criminal Wiretap Evidence For Use in Competition Class Actions* In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence obtained (...)

The Canada Supreme Court rules that civil antitrust plaintiffs may receive wire-tap evidence obtained in a criminal investigation (Imperial Oil)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
Civil Antitrust Attorneys Receive Wire-Tap Evidence* The Canada Supreme Court ruled earlier this month that civil antitrust plaintiffs may receive wire-tap evidence obtained in the criminal investigation into an alleged price-fixing scheme by several large gas companies. During the criminal (...)

The US District Court for the Northern District of California receives a letter from former employee and plaintiff in the trial asking the judge to reject the settlement negotiated by his lawyers (High-Tech employees)
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 EU Parliament brings forward legislation to reform civil litigation procedures to facilitate follow-on damages actions in competition cases by remedying the difficulties faced by claimants
St John’s Chambers (Bristol)
Changes to the private litigation regime in the UK: are more collective damages actions on the way?* Private damages litigation is an important complement to public enforcement of UK and EU competition law by the European Commission and national competition authorities (“NCAs”), such as the UK’s (...)

The UK House of Commons amends the proposed bill on consumer rights which brings forward reform of the civil litigation procedures to facilitate follow-on damages actions in competition cases
St John’s Chambers (Bristol)
Changes to the private litigation regime in the UK: are more collective damages actions on the way?* Private damages litigation is an important complement to public enforcement of UK and EU competition law by the European Commission and national competition authorities (“NCAs”), such as the UK’s (...)

The UK Parliament adopts a proposal for an opt-out regime from contingency fees in collective actions
Quinn Emanuel Urquhart & Sullivan (London)
,
IMF Bentham (Sydney)
Sharing Risk in Collective Actions* With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (...)

The US District Court for the District of New Jersey dismisses antitrust class action against two pharma producers regarding an agreement 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 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 Canadian Supreme Court allows indirect purchasers to sue for damages caused by a price fixing cartel (Infineon / Pro-Sys / Sun-Rype)
Cassels Brock (Toronto)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Class action business as usual after SCC decisions* It’s business as usual for class actions after Canada’s Supreme Court issued a trilogy of decisions holding (...)

The Canadian Supreme Court rules on the matter of standing to sue for damages held by indirect purchasers in class action proceedings (Sun-Rype Products / Archer Daniels Midland)
Steve Szentesi Law Corporation (Vancouver)
New C.D. Howe Institute Report on Indirect Purchaser Class Actions Before Supreme Court Decision – Consensus? Open the Door* Canada’s Supreme Court is expected to release a long awaited indirect purchaser competition class action decision on 31 October 2013. This case, and the tortuous (and (...)

The Canadian Supreme Court rules on the matter of standing to sue for damages held by indirect purchasers in class action proceedings (Infineon Technologies / Option Consommateurs)
Steve Szentesi Law Corporation (Vancouver)
New C.D. Howe Institute Report on Indirect Purchaser Class Actions Before Supreme Court Decision – Consensus? Open the Door* Canada’s Supreme Court is expected to release a long awaited indirect purchaser competition class action decision on 31 October 2013. This case, and the tortuous (and (...)

The Canadian Supreme Court rules on the matter of standing to sue for damages held by indirect purchasers in class action proceedings (Pro-Sys Consultants / Microsoft)
Steve Szentesi Law Corporation (Vancouver)
New C.D. Howe Institute Report on Indirect Purchaser Class Actions Before Supreme Court Decision – Consensus? Open the Door* Canada’s Supreme Court is expected to release a long awaited indirect purchaser competition class action decision on 31 October 2013. This case, and the tortuous (and (...)

The US Court of Appeals for the Seventh Circuit reconfirms class certification post-Comcast (Butler / Sears Roebuck)
Cohen Milstein (Washington)
,
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 Third Circuit vacates class certification order on ascertainability grounds in consumer false advertising case (Carerra / Bayer)
Cohen Milstein (Washington)
,
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 Court of Appeals for the District of Columbia Circuit unanimously overturns the district court’s order granting certification of a class of direct purchasers against four freight railroad companies (In re: Rail Freight Fuel Surcharge Antitrust Litigation)
Cohen Milstein (Washington)
,
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 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 US District Court for the 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 California refuses to certify nationwide classes in nearly identical “all natural” cases brought against Kashi producers for false advertising (Astiana / Kashi)
Cohen Milstein (Washington)
,
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 the Western District of Missouri 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 Appeals for the Sixth Circuit upholds a district court’s class certification alleging federal antitrust claims (Glazer / Whirlpool)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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 Sixth Circuit affirms class certification even for members whose product did not manifest the alleged defect (Whirlpool)
Cohen Milstein (Washington)
,
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 (...)

The US District Court for the Eastern District 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)
,
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 District Court for the 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)
,
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 South African Constitutional Court upholds an appeal as regards certification of class actions for damages arising from a cartel violation and pronounces that the correct standard must determine if the institution of a class action would be in the interest of justice (Mukaddam / Pioneer Foods)
Nortons (Sandton)
South African Constitutional Court rules on appropriate test for class action relief for damages* ZA Constitutional Court broadens ambit of class-action relief As previously reported, the Supreme Court of Appeal (the “SCA”) handed down two judgments, in November 2012, in respect of the (...)

The South African Supreme Court of Appeal and the Constitutional Court open the door to class actions in all forms (Pioneer Foods)
Norton Rose Fulbright (Johannesburg)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. To date there have not been any successful private enforcement or collective redress claims in South Africa arising from breaches of competition law. However, (...)

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 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)
,
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 vacates another no-injury washing machine class action (Butler)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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 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 Court of Appeals for the Ninth Circuit reverses a federal district court’s denial of class certification (Levya / Medline Industries)
Cohen Milstein (Washington)
,
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 Court of Appeals for the 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 District Court for the Eastern District of Kentucky denies class certification due to individual damage calculation (Cowden / Parker)
Cohen Milstein (Washington)
,
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 (In re 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 District Court for the Eastern District of Michigan certifies a class for liability only (Miri / Dillon)
Cohen Milstein (Washington)
,
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 explains that the predominance element of a class action “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)
,
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 District Court for the Central District of California denies class certification due to individual questions of fact (Forrand / Federal Express)
Cohen Milstein (Washington)
,
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 Court for the District of Kansas grants certification to liability only (Motor Fuel Temperature Sales Practice Litigation)
Cohen Milstein (Washington)
,
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 District Court for the Northern District of California denies class certification in high tech employees’ price-fixing lawsuit (In re 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 District Court for the 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 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 / Behrend)
Jones Day (Los Angeles)
,
Jones Day (Washington DC)
,
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 overturns District Court’s finding and rules that it must conduct a “rigorous analysis” to ensure that the requirements of class certification have been satisfied (Comcast / Behrend)
DLA Piper (Washington)
,
GeyerGorey (Washington)
,
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 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 / Knowles)
Jones Day (Los Angeles)
,
Jones Day (Chicago)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. 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, (...)

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 Court of Appeals for the Third Circuit applies “consumer-or-competitor” rule to deny antitrust standing to a foreign manufacturer of a drug marketed in the US by licensee (Ethypharm / Abbott)
Wolters Kluwer (Riverwoods)
Third Circuit Holds the Line on Antitrust Standing* In order to assert an antitrust injury, a plaintiff needs to be a consumer or a competitor in the restrained market, the U.S. Court of Appeals in Philadelphia ruled on January 23, 2013. If a company makes the choice not to compete, then it (...)

The US District Court for the District of Kansas denies 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 for the District of Kansas clarifies the appropriate summary judgment standard for horizontal price-fixing of commodity products (Urethane Antitrust Litigation)
Cohen Milstein (Washington)
,
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 (...)

The US District Court for the Northern District 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 Supreme Court of Appeal of South Africa recognises right to class actions in competition cases (Children’s Resource Centre Trust / Pioneer Food)
United Kingdom’s Competition Authority - CMA (London)
,
Bowmans (Johannesburg)
,
Norton Rose Fullbright (Sydney)
In South Africa, the Supreme Court of Appeal has for the first time recognised in principle the availability of class actions to enforce damages claims resulting from practices prohibited under South Africa’s competition act. The judgment represents a fundamental change, because previously South (...)

The US District Court for the Eastern District Court of New York approves class settlement in a price-fixing lawsuit brought against Vitamin C manufacturers (Vitamin C)
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 District Court for the 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 District Court for the Northern District of Georgia applies objective and subjective baselessness (Androgel Antitrust Litigation)
Cohen Milstein (Washington)
,
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 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 UK Competition Authority welcomes the proposals for reforms in private enforcement of competition law advanced by the Government
Blackstone Chambers (London)
OFT welcomes DBIS proposals for reforms in private enforcement of competition law* Many readers will now be familiar with the proposals for the reform of private competition claims launched by the Department for Business Innovation and Skills (‘DBIS’) in April 2012 (‘Private actions in (...)

The EU Parliament publishes an independent study voicing support for EU legislation on antitrust damages actions (Lear’s Report)
Court of First Instance of Namur (Namur)
An independent report commissioned by the European Parliament (“EP”) and published on 12 June 2012 has expressed strong support for plans for EU-level regulation aimed at encouraging the initiation of damages claims by consumers and small companies who wish to seek redress for harm caused (...)

The US Court of Appeals for the 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 UK Government consults on changes to assist private litigants in seeking redress for breach of antitrust law
Covington & Burling (London)
The UK Government is consulting on changes to assist private litigants in seeking redress for breach of antitrust law. Most radically, the government has proposed introducing an opt-out collective redress mechanism. This change alone could significantly increase the volume and impact of (...)

The UK Government launches consultation implementing alternative remedies to reform private actions in competition law
University of East Anglia (Norwich)
Article published on Centre for Competition Policy blog. Breaking the deadlock? Private antitrust enforcement in the UK* Private antitrust enforcement in the UK has never got off the ground, even after the Competition Act of 1998 introduced enforceable antitrust provisions. Plaintiffs have (...)

The UK Government is consulting on reforms aimed at making it easier to bring private actions for antitrust damages
University of East Anglia (Norwich)
Article published on Centre for Competition Policy blog. An Unpopular Solution to the Private Enforcement Problem* The UK’s Department for Business is currently consulting on a package of reforms aimed at making it easier to bring private actions for damages against firms engaged in (...)

The US District Court for the Northern District of California denies motion to dismiss conspiracy claims with bilateral agreements (In re 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 District Court for the District of New Jersey dismisses class action claims for price fixing brought by indirect purchasers against several magnesium oxide companies (Magnesium Oxide)
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 Dutch Court of Appeal holds that global class action settlements can go through national courts (Converium)
Court of First Instance of Namur (Namur)
An interesting judgment of the Court of Appeal (Gerechtshof) of Amsterdam of 17 January 2012 shows that Dutch courts have jurisdiction to deal with international mass claim settlements. In its decision, the Court made binding a settlement agreement reached in the Converium case. This (...)

The US Court of Appeals for the 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 Court of Appeals for the 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 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 (In re 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 Supreme Court denies a petition for certiorari brought by a drug manufacturer with respect to federal jurisdiction over antitrust class action claims (In re 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)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
This article has been nominated for 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 holding that discrimination claims on behalf of up (...)

The US Supreme Court holds that consumer arbitration clause containing a class action waiver is enforceable (AT&T Mobility / Concepcion)
White & Case (Miami)
,
White & Case (Los Angeles)
,
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 overturns a Court of Appeals 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 Court of Appeals for the Second Circuit holds that a class action waiver provision contained in commercial contracts between merchants and card issuer and service provider is unenforceable (American Express)
Wolters Kluwer (Riverwoods)
Enforceability of Class-Arbitration Bans Still an Open Question* Including an arbitration agreement in a commercial or consumer contract that requires your customer to pursue only individual claims in the arbitral forum will not necessarily protect you from class-wide arbitration. You will (...)

The US Court of Appeals for the Third 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 UK Court of Appeal rules that English court procedures do not allow representative actions on behalf of a class of direct and indirect purchasers of the air-freight cartel (Emerald Supplies / British Airways)
Volvo (Brussels)
On 18 November 2010, the English Court of Appeal ruled in favour of BritishAirways Plc. in an appeal brought by Emerald Supplies Ltd. and Southern Glass House Produce Ltd. The appeal was launched against a High Court (Chancery Division) decision to strike out the representative element of an (...)

The UK Court of Appeal rejects representative element of private damages action (Emerald Supplies / British Airways)
DLA Piper (London)
The Court of Appeal in England issued a judgment denying the appellants the ability to bring a representative action on behalf of a further 178 or more possible claimants seeking to obtain damages against British Airways plc (BA) for its alleged involvement in the air cargo cartel. The first (...)

The UK Court of Appeal rejects attempted ’opt-out’ class action (Emerald Supplies / British Airways)
Herbert Smith Freehills (London)
The English Court of Appeal has rejected a creative attempt to use existing English civil procedure rules to craft an ‘opt-out’ style class-action. The matter concerned an action for damages arising from the international air freight cartel, in which the European Commission has recently fined (...)

The US Supreme Court shows in its recent antitrust decisions a concern about the burdens of US litigation process (Stolt-Nielsen / AnimalFeeds)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Many of the most important U.S. judicial decisions in antitrust have been driven by judicial concern with aspects of the U.S. litigation process that are perceived by some to impose excessive costs (...)

The US District Court for the Eastern District of New York reinforces the fact that the Twombly “facial plausibility” standard serves as strong basis for dismissal in a price-fixing class action (LaFlamme / Société Air France)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
On April 5, 2010, Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York issued a Memorandum and Order dismissing the plaintiffs’ putative antitrust class-action complaint against KLM Royal Dutch Airlines and others for failing to state a claim. The plaintiffs (...)

The Italian Parliament passes a provision allowing collective action for infringement of competition law (“Azione di classe”)
University of Turin (Turin)
After a number of postponements, the Italian Law providing for a ‘group action’ (“azione di classe”) will enter into force, subject to integrations and/or amendments, on January 1, 2010. According to the Law passed by the Parliament on July 9, 2009, consumer associations, but also individual (...)

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)
RuyakCherian LLP (Washington)
,
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 (...)

All issues

  • Latest News issue 
  • All News issues
  • Latest Special issue 
  • All Special issues