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 made its formal findings as recently as 2007, it identified “the U.S. class action mechanism” as one of (...)
US Private Enforcement
Anticompetitive practices
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)
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 Court of Appeals for the Third Circuit issues a decision holding that purchasers have standing to seek damages from suppliers accused of price-fixing (Processed Egg Products)
Last week, in In re: Processed Egg Products Antitrust Litigation, the U.S. Court of Appeals for the Third Circuit issued a decision holding that purchasers of processed egg products have standing to seek damages from egg suppliers accused of price-fixing in violation of Section 1 of the Sherman (...)
The U.S. 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)
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 US Court of Appeals for the 9th Circuit hears interesting oral argument on Foreign Trade Antitrust Improvements Act related issues (Best Buy / Hannstar Display)
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 U.S. DOJ announces second criminal prosecution into online price fixing (Daniel William Aston)
U.S. DOJ announces second criminal prosecution into online price fixing*
On December 4, 2015, the U.S. Department of Justice’s Antitrust Division announced (see also the FBI statement) the second criminal prosecution against a conspiracy targeting e-commerce.
Last April 6, 2015, the U.S. (...)
The US Supreme Court declines an appeal for two related antitrust cases involving an international price-fixing cartel (Motorola / AU Optronics)
Motorola and the Extraterritorial Application of US Antitrust Laws to Foreign Component Price Fixing Cartels*
Last month the Supreme Court declined to accept an appeal for two related antitrust cases involving an international price-fixing cartel. The cases come from different circuits, one (...)
The US FTC reaches record $1.2 billion proposed “pay for delay” settlement and injunctive relief restricting future similar settlements of patent infringement cases (Cephalon)
Federal Trade Commission Reaches Record $1.2 Billion Proposed “Pay for Delay” Settlement with Cephalon and Injunctive Relief Restricting Future Similar Settlements of Patent Infringement Cases*
Last week, on the eve of trial, the Federal Trade Commission (“FTC”) reached a proposed settlement in (...)
The US Department of Justice announces first criminal prosecution against a conspiracy specifically targeting e-commerce (Topkins)
First E-commerce Price Fixing Prosecution Yields Swift Guilty Plea*
In what it is calling the Antitrust Division’s “first criminal prosecution against a conspiracy specifically targeting e-commerce,” the Department of Justice has announced that an individual has agreed to plead guilty to charges (...)
The US Supreme Court is given the possibility to clarify the application of the Foreign Trade Antitrust Improvement Act (Motorola / AU Optronics)
Supreme Court Has Opportunity to Clarify Application of Foreign Trade Antitrust Improvements Act*
Last week, the U.S. Supreme Court was asked, in parallel petitions, to resolve a split between the Seventh Circuit and the Ninth Circuit on the application of the federal antitrust laws to a (...)
A US District Court rules that it could assume the umbrella theory of antitrust injury is viable for the purposes of determining whether the plaintiffs are entitled to a preliminary injunction (Boardman / Pacific Seafood)
Oregon Federal Court Weighs In on Disputed Umbrella Theory of Damages*
An Oregon federal court recently relied on the so-called umbrella theory of damages to decide that the plaintiffs had an antitrust injury necessary to pursue an injunction. While this decision has garnered attention for (...)
The US Court of Appeals for the 7th Circuit reminds companies that they cannot forum shop (Motorola / AU Optronics)
Seventh Circuit to Motorola: No Rehearing En Banc*
On December 1, 2014, we wrote about the Seventh Circuit’s decision in Motorola Mobility LLC v. AU Optronics Corp., which affirmed dismissal of the vast majority of Motorola’s claims regarding LCD panels.
Motorola filed a petition for rehearing (...)
The US Department of Justice indicts seven Japanese executive for conspiring to fix prices (Mitsubishi / Hitachi)
Indictments of Seven Japanese Executives Announced In Auto Parts Cartel Investigation*
The Antitrust Division, through a federal grand jury, indicted seven Japanese executives for conspiring to fix prices in the long running auto parts investigation. There were two separate indictments. One (...)
The US Court of Appeals for the 7th Circuit agrees to rehear the appeal dismissing an antitrust claims under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
Seventh Circuit Panel to Rehear Motorola Mobility v. AU Optronics: A Preview of Some of the FTAIA Issues in Component International Price Fixing Cases*
The Seventh Circuit has decided to rehear the appeal from a judgment dismissing nearly Motorola’s entire $3.5 billion antitrust claim against (...)
A US District Court reaffirms that under the Capper-Volstead Act farmers may cooperate to collectively market their products, though the output limitation obtained by concerted action remains precluded by the Sherman Act (Cal-Maine Foods)
Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop*
In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they (...)
A US District Court denies motion to dismiss the complaint finding insufficient arguments to warrant a dismissal of the claims on per se tying and block-booking on the market for cable television (Cablevision / Viacom International)
Suit Challenging Cable Bundling Survives Motion to Dismiss*
Cable subscribers, tired of being forced to purchase more obscure channels like VH1 Classic and Teen Nick in order to get their nightly Daily Show fix on Comedy Central, should be encouraged by a recent antitrust decision out of the (...)
A US District Court receives notification that the class plaintiffs, state plaintiffs and the defendant have reached an agreement concerning the lawsuit in the e-books prices fixing case (Apple)
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 (...)
The US Court of Appeals for the Second Circuit rejects antitrust claims finding that the injury preceded any domestic effect in the causal chain (Lotes / Hon Hai Precision Industry)
Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act*
The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in (...)
A US District Court files an antitrust action against a boycott impeding private schools to compete on the markets for commercial exhibition of high school football contests and basketball contests in Virginia (Liberty Christian Academy / VHSL)
Do Public School Athletic Leagues Have To Admit Private High Schools?*
Liberty Christian Academy (LCA), a private high school in Lynchburg, Virginia, has filed an antitrust action against the Virginia High School League (VHSL), a non-profit organization of public high schools in Virginia. The (...)
A US District Court receives a complaint on an allegation of anticompetitive agreements to exclude the plaintiff from the market for ownership of professional basketball franchises (Donald Sterling / NBA)
Basketball, Surreptitious Recordings, and Antitrust*
Donald Sterling — yes, that Donald Sterling — filed an antitrust lawsuit a few days ago against the National Basketball Association. You can download a copy here: Sterling Antitrust Complaint.
It’s not clear if the complaint has now been (...)
The federal jury in Puerto Rico acquits former Vice President on charges of conspiring with rivals to fix the prices (Crowley Liner Services)
A federal jury’s recent acquittal of a shipping company executive charged with price fixing highlights the challenges and uncertainties the Antitrust Division of the Department of Justice (“DOJ”) faces when defendants force DOJ to prove its case at trial. It also highlights the fact that, when (...)
The US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
The Virginia Board of Medicine Violated the Antitrust Laws*
Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)
A US District Court grants class certification and gives its preliminary approval for a partial class action settlement of a lawsuit on the allegation of conspiracy to hold down salaries in Silicon Valley (High-Tech employees)
The Antitrust Laws Encourage Stealing*
That’s right, the antitrust laws care so much about competition that they even prohibit agreements among competitors to not steal. In a society that morally condemns stealing, this is counter-intuitive (and a good reason to learn a little bit about (...)
The US Court of Appeals for the 7th Circuit affirms dismissal of antitrust claims under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
Seventh Circuit Affirms Dismissal of Motorola’s LCD Antitrust Claims Based on Foreign Purchases*
On March 27, in the latest major development in Motorola Mobility’s lawsuit alleging price-fixing of liquid crystal display modules (LCDs), a three-judge panel of the Seventh Circuit, including (...)
The Court of Appeals for the 9th Circuit upholds the judgment of the lower court dismissing claims of conspiracy to restrain trade and attempted monopolization on the market for prosthetic microprocessor knees (DAW Industries / Hanger Orthopedic Group)
Ninth Circuit Once Again Affirms That Malicious Actions To Destroy A Competitor Do Not State An Antitrust Claim Unless Accompanied By Injury To Competition*
On February 24, 2014, the Ninth Circuit Court of Appeals affirmed the lower court’s grant of summary judgment dismissing DAW Industries’ (...)
The US District Court of Dallas dismisses antitrust claims because plaintiffs did not plausibly state an agreement on the market for direct online sale of hotel room reservations leaving the question of potential anticompetitive effect of the most favored nation (MFN) clause without an answer (OTC / Hotel Booking)
OTA Case Turns Out to Be Less about MFNs and More about Agreement*
Back in September 2012, the potential anticompetitive aspects of most favored nation (MFN) clauses was the hot antitrust topic. While antitrust counselors (and courts) had found the clauses to be innocuous almost all the time, (...)
The US District Court of Dallas dismisses a class action lawsuit filed by an online travel discount company against 12 dominant hotel chains and 9 online travel agencies alledging unfair exclusion from the market (OTC / Hotel Booking)
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 Court of Appeals for the 7th Circuit dismisses price-fixing claims based on overseas purchases of LCD panels made by foreign affiliates (Motorola Mobility / AU Optronics)
LCD Court Dismisses Motorola’s Multi-Billion Dollar Antitrust Claims Based On Overseas Purchases*
On January 23, in a landmark decision that is one of the most important yet to be handed down in the sprawling LCD antitrust litigation pending in various federal courts since 2006, Judge Joan (...)
A US District Court largely rejects a motion to dismiss an antitrust price-fixing complaint, though it holds that a recognized exception against indirect purchaser suits has not been adequately pled (Lithium Battery)
Lithium Ion Batteries Court Addresses Illinois Brick Exception, Finds Standing for Certain Indirect Purchasers of Component Products*
In In re: Lithium Ion Batteries Antitrust Litigation, 2014 U.S. Dist. LEXIS 7516 (N.D. Cal. Jan. 21, 2014) (Gonzalez Rogers, J.), the Northern District of (...)
A US District Court approves the proposed class action settlement of the antitrust suit over swipe fees (Visa / MasterCard)
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 denies the motions to dismiss the plaintiff’s amended complaint against the "anti-troll" group organizing a boycott of android related patents (Cascades Computer Innovation / RPX)
“Anti-Patent Troll” Fails to Secure Dismissal of Amended Antitrust Complaint*
Back in January, I covered the case of Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), where Judge Yvonne Gonzalez Rogers dismissed – with leave to amend – Cascades’ (...)
A US District Court certifies a class seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of the rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)
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 US District Court for the Northern District of California dismisses plaintiff’s antitrust claims and ascertains that allegations of harm to competition caused by multiple defendants can’t be aggregated (Orchard Supply Hardware/Home Depot, METCo & Makita)
Allegations of Harm to Competition Caused by Multiple Defendants Can’t be Aggregated*
Earlier this year, I covered the case of Orchard Supply Hardware LLC v. Home Depot USA, Inc. .
On September 19, 2013, the court (the Northern District of California) issued its decision on defendants’ motion (...)
The US Southern District of New York holds that antitrust plaintiffs need not show that conspiracy is the sole inference from the evidence (Apple)
In this prominent case, the United States and 33 states and U.S. territories brought civil suits against Apple Inc. and five book publishing companies, alleging that they conspired and acted together, in violation of United States antitrust law, to cause the publishing industry to move from a (...)
The US Supreme Court holds that patent protection does not confer immunity from antitrust attack (Actavis)
U.S. Supreme Court reverses Eleventh Circuit opinion in FTC v. Actavis, Inc*
On 17 June 2013, the U.S. Supreme Court (“the Court”) reversed a decision by the Court of Appeals (Eleventh Circuit). The Court of Appeals had upheld a dismissal of a complaint made by the Federal Trade Commission (...)
The US Supreme Court holds that reverse-payment patent settlements should be reviewed under the antitrust rule of reason (Actavis)
But Decision Raises as Many Questions as it Answers
The Supreme Court yesterday held that it may be unlawful under the antitrust laws for a brand-name drug manufacturer to resolve patent litigation against an allegedly infringing generic drug maker by paying the generic to forestall market (...)
The US Eastern District of New York Federal Court awards plaintiffs $162 million in first-ever civil price-fixing verdict against Chinese companies (Vitamin C Cartel)
On March 14, 2013, a federal jury in Brooklyn, New York returned a verdict in In re Vitamin C Antitrust Litigation, No. 1:06-md-1738 (E.D.N.Y.), finding that two Chinese companies had unlawfully fixed prices and controlled the supply of vitamin C exports from China to the United States. (...)
The US District Court for the Northern District of California dismisses with leave to amend antitrust claims against high-tech producers employing the android operating system (Cascades Computer Innovation / RPX)
Can An “Anti-Patent Troll” Be a Monopsonist or a Section 1 Conspirator?*
A recent interesting case suggests that “anti-patent trolls” may in theory face antitrust liability. In Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), Judge Yvonne (...)
The Californian Supreme Court applies the continuous accrual doctrine to actions under the unfair competition law finding that each overcharge shall give rise to a separate claim (Aryeh / Canon Business Solutions)
California Supreme Court Resolves Split Over Accrual Rules for Unfair Competition Claims*
The California Supreme Court has offered hope to plaintiffs facing statute of limitations problems under California’s Unfair Competition Law, holding that special rules for calculating accrual dates for (...)
The US Court of Appeals for the Second Circuit upholds the District Court judgment and holds for the first time that the filed rate doctrine can bar private claims related to market-based rates that arise from regulated auctions (Simon / KeySpan)
On September 20, 2012, the United States Court of Appeals for the Second Circuit affirmed KeySpan’s victory in Simon v. KeySpan, holding for the first time that the filed rate doctrine can bar private claims related to market-based rates that arise from regulated auctions. While the Court (...)
A US Court of Appeals upholds that the filed rate doctrine applies to the federal milk marketing orders (Gerald Carlin / DairyAmerica)
In Agricultural Regulation, A “Flawed Rate” is Not a “Filed Rate” For Damage Purposes*
Notwithstanding the general applicability of the Filed Rate Doctrine, the Ninth Circuit recently held that it does not necessarily bar producer class actions for overcharges. Whether a given rating authority has (...)
A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust suit involving alleged price-fixing of ATM fees (ATM Fee Antitrust Litigation)
Brick By Illinois Brick: Ninth Circuit Builds High Wall For Indirect Purchaser Suits*
The Ninth Circuit unanimously affirmed a grant of summary judgment for defendants in an antitrust suit involving alleged price-fixing of ATM fees, holding that the plaintiffs were indirect purchasers within (...)
The US Court of Appeals for the 7th Circuit potentially expands the extraterritorial reach of the U.S. antitrust laws (Minn-Chem / Agrium)
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. Its unanimous en banc decision in Minn-Chem, Inc. v. Agrium Inc. (7th Cir. 2012) may make it easier for the Department of Justice (...)
The US Court of Appeals for the 7th Circuit unanimously expands extraterritorial reach of US antitrust rules in a foreign price-fixing conspiracy case (Potash II)
Seventh Circuit Sitting En Banc Reverses in Potash, Announces Second Most Important of All FTAIA Opinions, Shores Up the Text Messaging Position on Conspiracy Pleading*
Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I (...)
The US Court of Appeals for the 7th Circuit takes broad view of the foreign trade antitrust improvements Act (Minn-Chem / Agrium)
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 (...)
US Ninth Circuit affirms dismissal of antitrust action by atm cardholders due to lack of standing (ATM Fee Antitrust Litigation)
The Ninth Circuit recently affirmed the decision of the United States District Court for the Northern District of California and held that automated teller machine (“ATM”) cardholders lacked standing to bring an antitrust class action against banks and former and current corporate owner-operators (...)
The Kansas Supreme Court condemns vertical price fixing agreements as per se illegal under the Kansas Restraint of Trade Act (O’Brien / Leegin Creative Leather Products)
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 the district judge erred in his demand for proof of a "concrete injury" in the price fixing of women’s accessories (O’Brien / Leegin Creative Leather Prods)
Kansas Supreme Court Declares “Rule of Reason” Inapplicable to Kansas Antitrust Law; Legislature May Have a Different Idea*
In Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the U.S. Supreme Court expressly overruled the categorical ban on vertical price fixing (...)
The US 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)
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 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)
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 US Judge of New Jersey District Court dismisses the claims of the indirect purchasers in price-fixing litigation (Magnesium Oxide)
Indirect Purchasers’ Claims Undermined In Mineral Price-Fixing Litigation*
Judge Dickinson R. Debevoise of the U.S. District Court for the District of New Jersey has dismissed class action claims of price fixing brought by indirect purchasers against several magnesium oxide companies in the (...)
The US Judge of New Jersey District Court dismisses the claims of the indirect purchasers for lack of standing to bring a cause of action (Magnesium Oxide Antitrust Litigation)
With No Reliance Nor Nexus, Indirect Purchaser Plaintiffs’ Claims Fall Short: In re Magnesium Oxide Antitrust Litigation (D.N.J. Apr. 5, 2012)*
Introduction
Antitrust claims by indirect purchasers of magnesium oxide did not survive defendant manufacturers’ motion to dismiss a complaint alleging (...)
The US District Court of Detroit dismisses antitrust claims against practice of requiring hospitals to enter into "MFN-Plus" contracts (City of Pontiac / Blue Cross Blue Shield)
District Court Dismisses Follow-On Suit Challenging Blue Cross’s “MFN-Plus’ Contracts Under Both Per Se and Rule of Reason Standards*
The District Court for the Eastern District of Michigan recently dismissed antitrust claims brought by the City of Pontiac against Blue Cross Blue Shield of (...)
A Federal jury in San Francisco returns verdicts in rare price-fixing trial of global liquid-crystal displays conspiracy (AU Optronics)
Companies and individuals that are accused of price-fixing rarely go to trial. Indeed, in the last 10 years, no corporate defendant (and only a handful of individuals) has elected to litigate an international criminal cartel case in a U.S. court. The vast majority of cases are resolved through (...)
A Northern District of California jury finds two of five defendants, all from Taiwan, guilty of conspiring to fix the prices of thin-film transistor liquid crystal displays (AU Optronics)
Are Antitrust Violations Crimes Involving Moral Turpitude?*
On March 13, 2012, the United States obtained its first trial convictions ever against foreign nationals for antitrust violations under the Sherman Act. A Northern District of California jury found two of the five defendants, all from (...)
The United States District Court for the Southern District of New York finds that a series of meetings between two credit card companies related to drafting and implementing arbitration clauses was probative of an antitrust conspiracy (Currency Conversion Fee)
New York Federal Court Holds That Meetings Related To Drafting Arbitration Clauses May Be Probative Of Antitrust Conspiracy Despite Decision Makers’ Lack Of Knowledge*
In In re Currency Conversion Fee Antitrust Litig., 2012 WL 401113 (S.D.N.Y. Feb. 8, 2012), Judge William H. Pauley III denied a (...)
The US District Court for the Eastern District of Pennsylvania dismisses claims of anti-competitive exclusion of positioning technology from standards (Trueposition / Ericsson)
U.S. District Court dismisses claims of anti-competitive exclusion of positioning technology from standards*
On 6 January 2012 the U.S. District Court for the Eastern District of Pennsylvania granted motions to dismiss claims that manufacturers of mobile telecommunications products conspired (...)
A US District Court denies motion to dismiss antitrust conspiracy claims against potato grower cooperatives in US several states (Fresh and Process Potatoes Antitrust Litigation)
I Can’t Make You Love Me If You Won’t: Capper-Volstead Jilted*
The intersection between the Sherman Act and the Capper-Volstead exemption for collective conduct by agricultural industry members has given rise to a number of recent cases. In re Fresh and Process Potatoes Antitrust Litig., No. (...)
A US District Court denies a motion to dismiss antitrust conspiracy claims against potato grower cooperatives in several states (Fresh and Process Potatoes)
Allegations of Conspiracy to Limit Crop Production: Ripe for Analysis Under Capper-Volstead*
On December 2, 2011, the district court denied a motion to dismiss antitrust conspiracy claims against potato grower cooperatives in several states. In re Fresh and Process Potatoes Antitrust (...)
A US federal district court approves three settlements in a class action for price-fixing conspiracies in the concrete industry defining the case “a model for the nation” (Iowa Ready-Mix Concrete Antitrust Litigation)
What Do Model Antitrust Class Actions Look Like?*
“[O]vercome with a rare and gargantuan sense of awe,” a federal district court judge in Sioux City, Iowa, has called a consolidated class action case arising from price fixing conspiracies in the concrete industry “a model for the nation.” The (...)
A US Court of Appeals holds claims against a foreign price-fixing cartel in the potash industry either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!*
Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)
A US District Court grants motion to dismiss class action on an allegation of price fixing of rock salt (Erie County / Morton Salt)
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., (...)
Washington State passes revised unfair competition law increasing exposure for misappropriated IP
US State Unfair Competition Laws Create Increased Exposure for Misappropriated IP*
For many years, information technology companies in the United States have expressed concern regarding what they have perceived to be the prevalence of pirated software in certain countries. One recent report, (...)
A US Court of Appeals vacates a lower court’s injunction lifting football players’ lockout in an antitrust suit (NFL)
Injunction Against NFL Lockout Improperly Granted in Players’ Antitrust Suit*
Earlier today, the U.S. Court of Appeals in St. Louis vacated an injunction lifting the National Football League’s "lockout" of its players. The divided appellate court, just five days after hearing oral argument on (...)
A US Court of Appeals affirms the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages (Brantley / NBC Universal)
Ninth Circuit Rejects Consumer Antitrust Challenge To Cable Television Bundling*
The Ninth Circuit recently affirmed the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages. Brantley v. NBC (...)
A US District Court issues an injunction ending football players lockout in an antitrust suit (NFL)
The NFL Lockout*
In our belief that the application of competition law to the world of sports has a tremendous potential that still today remains to a great extent unexplored in the EU. Not only are sports-related cases some of the most visible ones at the EU level (for the general public (...)
The U.S. District Court of the Northern District of California rejects a breach of contract defence based on the illegality of the contract under the Robinson-Patman Act (Pet Food Express / Royal Canin)
Robinson-Patman Act Defense Rejected in Breach-of-Contract Case*
Asserting a breach-of-contract defense based on the illegality of the contact under the Robinson-Patman Act appears to be as difficult as successfully alleging a Robinson-Patman Act claim itself.
Earlier this week, the federal (...)
The US District Court for the Southern District of New York dismisses class action alleging electricity overcharges (Simon / Keyspan)
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 (...)
A US District Court approves a settlement in a class action based on LCD price-fixing suit (In re LG Philips LCD)
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 (...)
A US District Court dismisses an antitrust suit brought against "catch and release" transactions on the market for licenses of mobile wireless-related patents (Siti / AST)
Antitrust suit against defensive patent purchasing organization dismissed*
On 29 December 2010, the U.S. District Court for the Southern District of New York dismissed an antitrust suit brought by Siti-Sites.com, Inc. (“Siti”) against Allied Security Trust (“AST”) and allegedly associated entities (...)
The US Court of Appeals of Atlanta (Eleventh Circuit) affirms a ruling of dismissal of an action brought on behalf of a class of purchasers of visco-elastic foam mattresses against a distributor (Benny Jacobs Wanda / Tempur-Pedic)
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 (...)
A US federal district court denies dismissal of antitrust conspiracy claim in tomato products industry (The Morning Star Company, SK Foods)
Claim of Antitrust Conspiracy Among Tomato Processors Avoids Dismissal*
The federal district court in Sacramento, California, has refused to dismiss an antitrust claim alleging that SK Foods L.P.—a now-defunct food products distributor—conspired with others to eliminate competition in the market (...)
The US House Judiciary Committee holds a hearing on competition in the evolving digital marketplace
U.S. hearing on competition in the digital marketplace*
On 16 September 2010 the Subcommittee on the Courts and Competition Policy of the U.S. House Judiciary Committee held a hearing on Competition in the Evolving Digital Marketplace.
A prepared statement of the U.S. Federal Trade (...)
The US Court of Appeals for the Federal Circuit clarifies requirements for patent misuse (Princo)
U.S. Federal Circuit (en banc) finds no patent misuse in Princo*
On 30 August 2010 the U.S. Court of Appeals for the Federal Circuit (en banc, 8-2) found – in contrast to an earlier ruling by a panel of the Court – that an alleged agreement between Philips Corp. and Sony Corp. to suppress a (...)
A US Court of Appeals finds that in order to allege a viable vertical restraint claim a plaintiff must plausibly allege the defendant’s market power (PSKS / Leegin Creative Leather Products)
Fifth Circuit Dismisses Leegin Resale Price Maintenance Case Anew, Following Supreme Court Remand*
In 2007, the United States Supreme Court, updating the application of the cumulative advances in antitrust economics as applied to vertical restraint cases, overruled the venerable Dr. Miles Med. (...)
The U.S. DOJ obtains disgorgement remedy in civil antitrust settlement with a power electricity undertaking in a market manipulation case (KeySpan)
Reaching the end of a three-year investigation, today the Department of Justice Antitrust Division asked a New York federal court to approve the DOJ’s settlement of claims that KeySpan violated the antitrust laws by manipulating the NYC wholesale electricity market. The DOJ claimed KeySpan (...)
The US Court of Appeals for the 3rd Circuit vacates a class action settlement in diamond industry favoring the status of direct purchasers for antitrust laws enforcement in U.S. courts (Sullivan, DB Investments)
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 California Supreme Court rejects pass-on defense under Cartwright Act in price fixing case in the pharmaceutical industry (Clayworth, Pfizer)
California Supreme Court Rejects Pass-On Defense in Price Fixing Case*
By Jeffrey May, Wolters Kluwer Law & Business In a case of first impression, the California Supreme Court recently decided that alleged victims of a price fixing scheme can pursue treble damages claims under the (...)
The California Supreme Court rejects "Pass-On" Defense for antitrust damages (Pfizer)
In its July 12, 2010, decision in Clayworth v. Pfizer, Inc., the California Supreme Court rejected the « pass-on » defense for claims brought under California’s antitrust law, the Cartwright Act. Defendants have used the pass-on defense to argue that direct purchasers of goods sold by allegedly (...)
Three US Senators introduce a bill that would make permanent provisions of the ACPERA granting reduced civil liability to successful leniency applicants
Bill Introduced To Secure Reduced Civil Liability For Amnesty Applicants*
Three U.S. senators have introduced a bill that would make permanent provisions of the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 (ACPERA) granting reduced civil liability to companies who (...)
A US District Court allows the reverse payment suits to proceed finding that the agreements extended beyond the scope of the concerned patent (Provigil)
U.S. District Court allows Provigil reverse payment suits to proceed*
On 29 March 2010 the U.S. District Court for the Eastern District of Pennsylvania rejected defendants’ motions to dismiss in suits concerning reverse payment settlements between the brand name manufacturer of the (...)
The New York Attorney General relies on New York General Business Code in a petition challenging restrictions on advertised prices used by a leading mattress manufacturer (Tempur-Pedic)
In a series of articles and public statements, enforcement officials from the New York Attorney General’s office have warned that vertical agreements to fix minimum resale prices, also referred to as minimum resale price maintenance (RPM) agreements, may remain per se unlawful under existing New (...)
A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)
Cross-Market Claims Flunk Twombly*
In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)
The US Court of Appeals for the 2nd circuit affirms dismissal of antitrust claims addressing the proper application of the implied preclusion doctrine (Electronic Trading Group / Banc of America Securities)
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 (...)
A US Court of Appeals affirms the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged cumulative anticompetitive effects (Gilley Enterprises / Atlantic Richfield)
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 U.S. District Court of the Northern District of California finds sufficient ground for a claim of alleged illegal secret rebates, kickbacks and commissions in the market for the sale of title insurance, but rejects a claim of collusive conduct (California Title Insurance)
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market*
Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)
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)
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 US FTC’s new market manipulation prohibits false statements and omissions in petroleum markets
The Federal Trade Commission has issued its long-awaited rule targeting « market manipulation » in wholesale petroleum markets. With high, daily penalties, the rule is likely to cause petroleum suppliers to develop cautious compliance programs that restrict information disclosed to the market. (...)
A US Court of Appeals finds that the tying arrangement consisting in sales of real estate property didn’t affect a substantial amount of commerce in the market for the real estate services identified as the tied product (Blough / Holland Realty)
Ninth Circuit Finds That New Home Buyer Plaintiffs Fail To Satisfy Per Se Tying Element That Amount Of Commerce Not Be “Insubstantial”"Zero Foreclosure” Is Less Than “De Minimus.”*
Buyers of newly constructed homes in the Boise, Idaho, area filed a federal antitrust class action, alleging that (...)
The US DoJ files amicus brief on reverse payment settlements on the market for broad spectrum antimicrobial medicines (Arkansas Carpenters Health / Bayer, Hoechst, Watson)
U.S. DOJ files amicus brief on reverse payment settlements*
On 6 July 2009 the U.S. Department of Justice filed an amicus brief in a reverse payment settlement case on appeal before the 2nd Circuit (In re Ciprofloxacin Hydrochloride Antitrust Litigation). The filing is in response of an (...)
A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust action on an allegation of conspiration to allocate customers and fix prices within the tools business (Nitro Distributing / Alticor)
Eighth Circuit Affirms Dismissal of Antitrust Claims Against Amway*
The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a “horizontal (...)
The US Federal Circuit dismisses antitrust claims against reverse payment agreement between pharmaceutical companies (Ciprofloxacin Hydrochloride)
On 15 October 2008 the Federal Circuit affirmed the grant of summary judgment by the Court for the Eastern District of New York that patent settlement agreements («Agreements») entered into between Bayer AG and Bayer Corp (collectively «Bayer») and several manufacturers of generic drugs providing (...)
A US District Court rejects the allegation according to which inducement by a drug wholesaler of a drug price publisher to inflate the wholesale price may constitute a per se violation (New England Carpenters Health Benefits Fund / McKesson)
Twombly Meets Leegin. Failure of Plaintiff to Allege “Plausible” Entitlement to Relief Constitutes Failure to Allege “Antitrust Injury.”*
In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts (...)
The US Supreme Court overrules prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices as a per se violation (Leegin Creative)
Vertical Price Agreements in the Wake of Leegin v. PSKS: Where Do We Stand Now?*
I. INTRODUCTORY REMARKS
For nearly a century, agreements between retailers and suppliers stipulating a minimum retail price were considered per se violations of the Sherman Act. Resale price maintenance (“RPM”) (...)
The US Supreme Court redefines notice pleading and clearly raises the bar for plaintiffs in private antitrust conspiracy claims (Bell Atlantic/Twombly)
Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler and the Uncertain Future of Antitrust Enforcement*
The Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is a watershed ruling whose impact on private litigation, especially antitrust (...)
The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
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 (...)
A US District Court holds that the action against multistate tobacco settlement agreement was barred by the state action doctrine (Sanders / Lockyer)
“Active Supervision” Standard Of Midcal Not Applicable To Conduct Of Sovereign. Multistate Tobacco Settlement Is Parker and Noerr Exempt Both For State And Private Parties*
In the aftermath of the entry of the Multistate Tobacco Settlement Agreement (“MSA”), and enactment by the California (...)
The US Court of Appeals for the Federal Circuit reverses the ruling of the lower court maintaning that a rebuttable presumption arises from the possession of patent rights to tying engineered fastening systems (Independent Ink / Illinois Tool Works)
Of Bats And Sunshine: Presumption Of Market Power In Patent Tying Case Alive But Rebuttable*
In January, the Court of Appeals for the Federal Circuit issued an opinion in Independent Ink Inc. v. Illinois Tool Works, Inc.. Addressing the issue whether, in a Section 1 tying case, a rebuttable (...)
The US Supreme Court blocks foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
On June 14 2004, in a unanimous judgment, the Supreme Court blocked foreign plaintiffs from bringing an antitrust claim in U.S. courts seeking damages based on higher foreign prices that are allegedly independent of the domestic effects of higher domestic prices. However, the case was remanded (...)
The US Supreme Court rules that the Sherman Act does not apply to claims arising solely out of the foreign effect of a global cartel (Hoffman-LaRoche / Empagran)
As economic globalization marches on, one question that emerges repeatedly is how far the U.S. legal system can and should reach beyond its own borders. Answering that question has become particularly urgent in antitrust enforcement, as the effects of cartels and business practices increasingly (...)
The US Supreme Court restricts the applicability of US antitrust laws with regard to injuries suffered abroad holding that foreign nations can preserve competition without American interference (Hoffman-La Roche / Empagran)
F. Hoffman-La Roche Ltd. v. Empagran S.A.: The Supreme Court Trusts That Foreign Nations Can Preserve Competition Without American Interference*
In F. Hoffman-La Roche Ltd. v. Empagran S.A., the United States Supreme Court held that United States courts do not have jurisdiction over claims of (...)
The US Supreme Court prevents foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
The FTAIA and Empagran: What Next?*
In F. Hoffman LaRoche Ltd. v. Empagran S.A., 542 US 155 (2004), the Supreme Court limited access to American courts by foreign plaintiffs suing under the Sherman Act based on foreign transactions. Jurisdiction over foreign antitrust claims is governed by (...)
A US Court of Appeals holds that US courts have authority under the FTAIA to award damages for price-fixing in an action brought by foreign buyers and sellers (Kruman)
The twenty years since the enactment of the Federal Trade Antitrust Improvements Act (the FTAIA) in 1982 have seen steady progress in the cooperation of antitrust authorities worldwide. Prior to the FTAIA’s passage, the US’s extraterritorial application of its antitrust laws created international (...)
Dominance
The California Southern District Court receives a claim from a smartphone manufacturer against one of its suppliers over allegedly abusive wireless patents (Apple / Qualcomm)
Apple and Qualcomm proceeding*
In January 2017 Apple filed suit against Qualcomm over its allegedly abusive licensing practices regarding wireless patents.
Apple filed patent, antitrust and breach of contract claims against Qualcomm; this could result in damages of billions of dollars. (...)
The US District Court for the Northern District of California receives joint filling closing over three years of patent and antitrust proceedings (Samsung / Apple)
Samsung/Apple update: Samsung will pay $548 million in patent damages to Apple*
On December 3, 2015 Samsung and Apple submitted a joint filing in which Samsung agreed to pay $548 million in patent damages to Apple to satisfy a partial judgment.
In August 2012, a jury had awarded $ 1.05 (...)
A US District Court dismisses tying claim related to the market for distribution of hotel content since the tying product and the tied product were not separate (Pro Search Plus / VFML Leonardo)
De Facto Exclusive Dealing: What a Difference a Day Makes*
In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media content for (...)
A US District Court dismisses an action brought by a putative class of consumers on claims of monopolization of the aftermarket for iPhone apps (Apple iPhone Antitrust Litigation)
Plaintiffs Hit an Illinois Brick Wall: Indirect Purchasers of iPhone Apps Lack Standing to Bring Antitrust Suit*
On December 2, 2013, United States District Judge Yvonne Gonzalez Rogers of the Northern District of California dismissed a case against Apple brought by a putative class of (...)
The US District Court of Western Texas dismisses antitrust claims predicated upon alleged trademark misuse in relation to flow conditioners in oil pipelines (RJ Machine / Canada Pipeline Accessories)
Trademark Misuse Is ^Almost^ Never an Antitrust Injury*
Trademarks are commonly thought to convey no market power. In RJ Machine Co. v. Canada Pipeline Accessories Co., Case No. 1:13-cv-00579-SS (W.D. Tex. Nov. 22, 2013) (Sparks, J.), the court dismissed antitrust claims predicated upon (...)
The U.S. District Court of Northern California draws a sharp line between two types of sham litigation claims and dismisses the monopolization counterclaims with leave to amend (Surface Supplied/Kirby Morgan Dive)
A Useful Reminder About Sham Litigation as Exclusionary Conduct*
In Surface Supplied, Inc. v. Kirby Morgan Dive Systems, Inc., 2013 U.S. Dist. LEXIS 143478 (N.D. Cal. Oct. 3, 2013) (Chesney, J.), the Court dismissed attempted monopolization and monopolization counterclaims with leave to amend. (...)
The U.S. Court of Appeals for the Ninth Circuit affirms the district court’s denial of class certification and the dismissal of complaint with prejudice (Sommers/Apple)
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 of Miami dismisses claims on monopolization and resale price maintenance on the market for beauty products in duty free shops (Duty Free Americas / Estée Lauder)
Claims of Providing Truthful Marketing Information to Airports Issuing Bids for Duty Free Shops Fails to Allege Actionable Conspiracy or Attempted Monopolization*
Conclusory allegations of parallel business conduct which are in the economic self-interest of the actor do not state an actionable (...)
The US District Court, 9th Circuit refuses to dismiss the plaintiffs’ below-cost pricing claims raised under Unfair Practices Act in respect of clinical laboratory testing services (Rheumatology Diagnostic Laboratory/Aetna)
Is the California Unfair Practices Act a Free Pass on Motions to Dismiss?*
Probably not, but UPA claims can be tough to defeat at the motion to dismiss stage. Witness Rheumatology Diagnostics Laboratory, Inc. v. Aetna, Inc., 2013 U.S. Dist. LEXIS 151128 (N.D. Cal. Oct. 18, 2013) (Orrick, J.), (...)
The US Supreme Court reverses the decisions of the lower courts and emphasizes that any model supporting a plaintiff’s damages case must be consistent with its liability case (Comcast / Behrend)
Comcast v. Behrend Sets a Higher Bar for Class Certification*
On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of (...)
A US District Court grants motion for summary judgment on the grounds that the plaintiffs failed to establish the element of “dangerous probability” for an antitrust claim for attempted monopolization on the market for containerized waste hauling and disposal services (All Star Carts and Vehicles / BFI Canada Income Fund)
Summary Judgment Dooms Attempted Monopolization Claim in Small Container Trash Hauling Market*
In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted (...)
A US District Court grants motion for summary judgment stating that the alleged exclusionary conduct constituted nonprice restraints and thus subject to rule of reason analysis (Church & Dwight / Mayer Laboratories)
“Planogram” and “Category Captain” Marketing Programs Held Non-Exclusionary*
Rival condom manufacturer’s antitrust claims dismissed. Church & Dwight Co., Inc. v. Mayer Laboratories, Inc., United States District Court, Northern District of California, Case No. C-10-4429 EMC (April 12, 2012). (...)
A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan)
ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim*
The District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an (...)
A US District Court finds that the alleged facts were insufficient to allege a plausible monopoly power maintenance claim in respect of the market for automotive refrigerant recycling and recovery machines (SPX / Mastercool)
Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury*
Plaintiff SPX Corporation ("SPX") brought a patent infringement action against Master Cool U.S.A. ("Master Cool"). Master Cool answered and counterclaimed. In its counterclaim, it alleged (...)
A US District Court dismisses the antitrust counterclaims alleging monopolization on the market for maintainance of printers, while allowing the tortious interference claims to continue (Océ North America / MCS)
Aftermarket Monopolization Claims Dismissed as Afterthought*
Plaintiff Océ North America, Inc. ("Océ") brought an action against a service market supplier for copyright infringement. Defendant MCS Services, Inc. ("MCS") filed a Kodak-style "aftermarket" monopolization counterclaim, in addition (...)
A US District Court denies a motion to dismiss allegations of a price squeeze implemented through the granting of secret rebates to the plaintiff’s customers on the market for resailing of paper bag products (Western Pacific Kraft / Duro Bag)
In Secret Rebate Case, If It Walks Like A Duck, Allegations That It Will Also Quack Are Plausible*
On May 24, 2011, United States District Court, Central District of California, denied a motion to dismiss allegations of a "price squeeze" implemented through the granting of secret rebates to (...)
The US District Court Southern District of New York rejects settlement between online search provider and copyright owners in the digitized books sector (Google Books Settlement)
Google Books Settlement Rejected*
Some of you will recall that roughly a year ago I wrote a post on the Google Books settlement (“Google Books Settlement: It’s the search market stupid!”) in which I argued that the only competitive problem, if any, posed by the amended settlement related to the (...)
A US District Court dismisses claims on monopolization, unfair competition and fraud, since the plaintiff did not articulated a proper definition of the relevant market (Digital Sun / The Toro Company)
Federal Court Finds Allegations of “Bad Faith” in Sprinkler License Agreements to be “Vox Clamantis in Deserto”*
On March 22, 2011, the United States District Court for the Northern District of California entered an order granting defendants The Toro Company’s ("Toro") motion to dismiss plaintiff (...)
The US District Court Southern District of New York rejects a proposed settlement in the digitized book search sector (Google Books Settlement)
Moving Forward in Google Book Search*
On Tuesday, after more than a year of silence, Judge Denny Chin rejected the proposed settlement in the Google book search case. The innovative settlement asked more than Rule 23 could deliver. In his words, the settlement “would simply go too far.” Others (...)
A US District Court denies a motion to dismiss a fraudulent patent claim and allows standing to a direct purchaser of NAND flash memory (Ritz / SanDisk)
Expanded Standing, or “Back to Basics”? Flash Memory Direct Purchasers Found to Have Standing to Assert Walker Process Claims*
In Ritz Camera & Image, LLC v. SanDisk Corporation, et al., United States District Court, ND Cal., Case No. 5:10-CV02787-JF/HRL, the court denied a motion to dismiss (...)
A US District Court dismisses indirect purchaser class actions challenging proposed reverse payment agreements as anticompetitive on an allegation of preventing a cheaper generic medicine to enter the market sooner (Plavix Indirect Purchaser)
Indirect Purchaser Plavix Class Actions Tossed for Lack of Antitrust Standing*
On January 31, 2011, the District Court for Southern District of Ohio granted defendants’ Rule 12(b)(6) motion, dismissing indirect purchaser class actions that challenged proposed reverse payment agreements as (...)
The US 1st District California Court of Appeal upholds a jury verdict finding that a claim of unfair competition based on below-cost sales of advertising did not require proof of the defendant’s ability to recoup losses by subsequent monopoly pricing (Bay Guardian Company / New Times Media)
A Step Back to Square One? California Court of Appeal Elevates UPA Protection of Competitors Over Protection of Competition in Newspaper Ad Dispute*
On August 11, 2010, the California Court of Appeal for the First District upheld a jury verdict in favor of plaintiff Bay Guardian Company (...)
A US District Court grants motion for summary judgment on claims of maintaining a monopoly in the operating systems market (Novell / Microsoft)
U.S. District Court dismisses Novell’s claims against Microsoft*
On 30 March 2010 the U.S. District Court for the District of Maryland granted Microsoft’s motion for summary judgment on Novell’s claims that Microsoft violated U.S. antitrust laws by engaging in anti-competitive conduct in order to (...)
The US Court of Appeals for the Second Circuit states that direct purchasers of antidiuretic medicine have antitrust standing in patent infringement suit (DDAVP)
2nd Circuit finds DDAVP purchasers stated Walker Process and related claims and had antitrust standing*
On 16 October 2009 the Court of Appeals for the Second Circuit held (In re: DDAVP Direct Purchaser Antitrust Litigation) that direct purchasers of desmopressin acetate tablets, sold under (...)
The US District Court of SDNY dismisses antitrust claims raised by a distributor of compatible mainframe computers produced by the plaintiff (IBM/T3 Technologies)
U.S. District Court dismisses T3’s antitrust claims against IBM*
On 30 September 2009 the U.S. District Court of S.D.N.Y. granted in International Business Machines Corp. v. Platform Solutions, Inc. and T3 Technologies, Inc. (No. 06 Civ. 13565(LAK)) IBM’s motion for summary judgment on antitrust (...)
A US Court of Appeals affirms the decision of the lower court allowing a summary judgment on all claims including the exclusion of competition from the market for gasoline (Partner / ExxonMobil Oil)
PMPA Franchise Agreement Disavowing Plaintiff’s Claim to an Exclusive Market and Geographic Territory Trumps Alleged Oral Commitment*
Partner v. ExxonMobil Oil Corp., 08-1590 (6th Cir. May 4, 2009)
In 2000, plaintiff Partner & Partner, Inc. entered into a lease/franchise agreement with (...)
The US Supreme Court rejects antitrust liability for price-squeeze by integrated dominant firms in the telecommunication industry illustrating deep suspicion about the institutional players in the antitrust system (Pacific Bell / linkLine)
linkLine’s Institutional Suspicions
In this essay, I review the Supreme Court’s most recent monopolization decision—Pacific Bell v. linkLine—with a focus on the suspicions between the various institutions that had a hand in the case.
I. The linkLine Decision
The linkLine decision continues the (...)
The US Supreme Court affirms that when a regulatory structure aiming to deter and remedy anti-competitive harm prevails, the costs of antitrust enforcement are likely to be greater than the benefits (Pacific Bell Telephone / Linkline Communications)
Supreme Court Restricts “Price-Squeeze” Claims Under Section 2 of the Sherman Act to Situations Where the Defendant has an Antitrust Duty to Deal*
In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. (...)
A US District Court dismisses based on the statute of limitations an antitrust complaint alleging a refusal to deal with a professional association of cardiologists expressed by an operator of five hospitals in Arkansas (Little Rock Cardiology Clinic / Baptist Health)
What Part of “No” Don’t You Understand? Unequivocal Refusal to Deal Triggers Statute of Limitations*
Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008).
Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing (...)
The US Supreme Court finds implied antitrust immunity in regulated securities industry related claims (Credit Suisse Securities / Billing)
Securities Law and Antitrust Law: Two Legal Titans Clash Before the United States Supreme Court in Credit Suisse v. Billing*
Because of the inherent tension between antitrust law on one hand and industry-specific regulations on the other, the United States Supreme Court has often been called (...)
A US District Court dismisses antitrust claims arising from an allegation of foreign related conduct that affected the plaintiff’s foreign sales (AMD / Intel)
Court dismisses AMD’s “foreign commerce claims” against Intel for lack of subject matter jurisdiction and standing*
In a recent opinion, the District Court for the District of Delaware dismissed AMD’s antitrust claims against Intel that arose out of Intel’s alleged foreign-related conduct that (...)
A US Court of Appeals confirms the dismissal of antitrust claims related to an alleged loss of competitive technologies being deemed so diffuse that it could not possibly be adequately measured (Kloth / Microsoft)
Indirect Purchaser and Remoteness Doctrines Barred Antitrust Claims Against Microsoft by End-User Software Licensees*
A question arising from end-user license agreements ("EULAs"), which accompany applications software programs that have been preinstalled on personal computers, is whether they (...)
The U.S. Second Circuit Court of Appeals affirms a nominal jury verdict of $1 for illegal monopolization by a professional football league (USFL/NFL)
The U.S. Second Circuit Court of Appeals affirmed a jury verdict awarding the U.S. Football League (“USFL”) only $1 in nominal damages against the National Football League (“NFL”) and agreed with the jury’s finding that the NFL did not engage in exclusionary conduct through its agreements with (...)
Mergers
A US District Court starts hearings in a class action case where the plaintiffs argue that a previously concluded DoJ settlement failed to ameliorate the competitive harm occasioned by the removal of a direct competitor and price maverick (AB InBev / Grupo Modelo)
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 Supreme Court hears oral arguments to determine whether iPhone App Store customers are Apple direct purchasers in order to pursue the Big Tech monopoly claims (Apple / Pepper)
Will High Court allow consumers to pursue Apple Monopoly claims?*
The Supreme Court heard oral arguments on November 26 in a suit alleging that the Ninth Circuit erred in holding that iPhone App Store customers were direct purchasers of those apps and had standing to sue Apple for the (...)
The US DOJ Antitrust Division names new deputy assistant attorney general for criminal enforcement
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 U.S. Department of Justice Antitrust Division considers individual civil enforcement actions against executives implicated in corporate wrongdoing (Yates Memo)
The U.S. Department of Justice Antitrust Division will consider individual civil enforcement actions against executives implicated in corporate wrongdoing, according to recent comments by DOJ Assistant U.S. Attorney General Bill Baer. His comments follow a September 2015 memo, "Individual (...)
The US Supreme Court grants certiorari and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed immediately, notwithstanding other cases still pending in the same proceeding (Gelboim/Bank of America)
Supreme Court to Review Appeal Issue in LIBOR Litigation*
Contributing Author: Clayton Collett.
Introduction
The Supreme Court has granted certiorari in Gelboim v. Bank of America Corp. and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed (...)
A US Court of Appeals affirms on statute of limitations grounds the district court’s dismissal of the Sherman Act and Clayton Act claims related to an allegation of anti-competitive price increase on the market for petroleum wax-based oxidates (Z Technologies / Lubrizol)
Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations*
Z Technologies Corp. v. Lubrizol Corp., No. 2:12-cv-12206 (6th Cir., May 23, 2014).
In February, 2007, Lubrizol Corporation made a “merger to monopoly” acquisition of the assets (...)
A US District Court receives letter from former employee and plaintiff in the trial asking the judge to reject the settlement negotiated by his own lawyers (High-Tech Employee Antitrust Litigation)
A Rare Challenge to a Class Action Settlement . . . From a Named Plaintiff*
One of the named class plaintiffs in the high-tech employee antitrust case has filed an objection to the proposed class settlement. The plaintiff, Mr. Michael Devine, analogized the approximately $300 million (...)
The US District Court for the Northern District of Georgia refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine, since such a conclusion would have contradicted the decision of the Supreme Court finding that a reverse payment settlement agreement should be subject to antitrust scrutinity (Actavis)
FTC v. Actavis on Remand: A New Chapter*
District Court refuses to grant renewed motion to dismiss based on Noerr-Pennington doctrine. In re AndroGel Antitrust Litigation (No. II), MDL No. 2084 (re Federal Trade Commission v. Actavis, Inc., No. 1:09-CV-955-TWT) (N.D. GA April 21, 2014).
In (...)
A US Court of Appeals affirms the dismissal of the antitrust claims, agreeing that plaintiffs lack standing (Bruce Max Davis / AT&T Wireless Services)
Digital Content Producers (Still) Lack Antitrust Standing to Sue Wireless Carriers Over MMS*
In a prior post, I covered the district court’s decision in Davis v. AT&T Wireless Services, Inc. There, the Central District of California dismissed antitrust claims against various wireless (...)
The US DoJ announces its successfully litigated extradition on an antitrust charge against a participant in a conspiracy to suppress and eliminate competition by rigging bids, fixing prices and allocating market shares for sales of marine hose sold worldwide (Marine Hose)
From DOJ: First-Ever Pure Antitrust Extradition*
In what may well affect African and other international price-fixers going forward, the spectre of U.S. extradition for criminal antitrust charges has been reinforced by the recent successful DOJ extradition request in the “Marine Hose” cartel. (...)
The US Supreme Court affirms the judgment of the Court of Appeals for the Sixth Circuit and gives voice to criticism against the traditional standing test for antitrust claims (Lexmark International / Static Control Components)
Supreme Court Creates New Standing Test For Asserting False Action Claim Under Lanham Act*
On March 25, 2014, the Supreme Court issued a unanimous opinion, authored by Justice Scalia, in Lexmark International, Inc. v. Static Control Components, Inc. In a previous post, I discussed my (...)
The US Supreme Court clarifies standing requirements under the federal trademark law with possible implications for the antitrust claims (Lexmark International / Static Control Components)
Will the Supreme Court’s Lexmark Standing Decision Lead Indirect-Purchaser Antitrust Plaintiffs to Federal Court?*
While waiting for my flight to leave San Diego on my way to Washington, DC for the ABA Antitrust Spring Meeting, I saw on Twitter—the best source for immediate Supreme Court (...)
A US District Court dismisses an antitrust class action against two pharma producers regarding an agreement to postpone the production of a generic epilepsy and bipolar disorder drug because no reverse payment with cash was involved to keep the rival off the market (GSK / Teva)
U.S. District Court holds that Actavis requires monetary payments for antitrust scrutiny to be applicable*
On January 24, 2014 U.S. District Judge William H. Walls dismissed an antitrust class action against GlaxoSmithKline LLC (“GSK”) and Teva Pharmaceutical Industries Ltd. (“Teva”) regarding (...)
The US Supreme Court reviews a decision of a District Court in order to determine a party’s standing to maintain an action under Federal Trademark Law (Lexmark International / Static Control Components)
Supreme Court to Decide Requirements for Standing under Lanham Act*
In the coming weeks, the Supreme Court will decide a case involving the proper framework for determining standing to maintain an action for false advertising under the Lanham Act. The case, Lexmark International, Inc. v. (...)
The US Supreme Court rules that a state attorney general asserting state law claims for injuries incurred by its citizens is not required to be removed to federal court under the Class Action Fairness Act (AU Optronics)
High Court Rejects Removal of Mississippi Antitrust Suit as Mass Action under Class Action Fairness Act*
A price fixing action filed by the State of Mississippi as the sole named plaintiff was not a “mass action” under the Class Action Fairness Act (CAFA), even though the state sought (...)
The US Court of Appeals for the 7th Circuit reconfirms class certification post-Comcast (Butler/Sears Roebuck)
Purchasers of Kenmore washing machines brought class actions alleging products defects involving mold and defective control units. The district court certified the defective control unit class but refused to certify the mold class.
On appeal, the Seventh Circuit reversed the refusal to (...)
The US Court of Appeals for the 3rd Circuit vacates class certification order on ascertainability grounds in consumer false advertising case (Carerra/Bayer)
Purchasers of a diet supplement brought a class action asserting that Bayer falsely claimed that the supplement enhanced metabolism by including a green tea extract.
The district court certified a class of purchasers in Florida.
The Third Circuit vacated the class certification order and (...)
The US DC Circuit Court of Appeals unanimously overturns the district court’s order granting certification of a class of direct purchasers against four freight railroad companies (Rail Freight Fuel Surcharge Antitrust Litigation)
Railroad shippers brought a class action, asserting that four freight railroad companies that together comprised nearly 90% of the market for rail freight had participated in a conspiracy to impose rate-based fuel surcharges.
The district court certified a class based on two regression models, (...)
The US Southern District of New York certifies a class for liability purposes only (Jacob/Duane Reade)
Pharmacy store managers brought suit against a retail chain pharmacy, asserting that the pharmacy failed to compensate them for overtime in violation of the Fair Labor Standards Act.
The district court concluded that certification of the class for all purposes was inappropriate under Comcast. (...)
The US District Court for the Southern District of New York certifies class for liability purposes only in a lawsuit brought against retail chain pharmacy (Jacob/Duane Reade)
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 U.S. Court of Appeals for the Eighth Circuit holds that “informational injury” alone is sufficient to confer standing (Charvat v. Mutual First Federal Credit Union)
The United States Court of Appeals for the Eighth Circuit recently held that a consumer may establish an injury in fact to meet constitutional standing requirements by alleging “an informational injury” within the context of the Electronic Fund Transfer Act (“EFTA”). The Eighth Circuit addressed (...)
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)
Purchasers of Kashi food products brought a class action for alleged unfair business practices and false advertising, asserting that advertisements claiming Kashi products contained “nothing artificial” and were “all natural” were false and misleading.
Defendants argued that the plaintiffs were (...)
The US District Court for Western District highlights the unique damages theory, which requires plaintiffs to “show that the method of calculating damages measures ‘only those damages attributable to that theory’ of injury asserted by the plaintiffs (Barfield/Sho-Me Power)
Missouri landowners brought a class action asserting that electric companies that had easements over their properties for the transmission of electricity had exceeded the scope of their easements, by also transmitting fiber optic communications through the properties in addition to electricity. (...)
The US Court of Appelas for the Sixth Circuit Sixth Circuit affirms class certification even for members whose product did not manifest the alleged defect (Whirlpool Litigation)
Purchasers of Whirlpool washing machines brought a product liability class action against Whirlpool, alleging that a design defect in many of the machines resulted in mold and mildew in the machines and foul odors in their homes. A class was certified as to liability issues, with proof of (...)
A US Court of Appeals upholds a district court’s class certification of a class alleging federal antitrust claims (Glazer/Whirlpool)
Earlier this year, the U.S. Supreme Court vacated and remanded the Sixth Circuit’s decision in Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (Comcast). The Sixth Circuit has now issued a new ruling, (...)
The US Court of Appeals for the Eastern District Court of California states that if putative class members prove Medline’s liability, damages may be calculated based on the wages each employee lost (Barbosa/Cargill Meat Solutions)
Employees at a meat processing facility brought a class action claiming that required sanitary procedures deprived them of the benefit of the break time during which their employer required them to perform those procedures.
Class certification was sought in connection with a proposed class (...)
The US Central District of California denies class certification on California law claims and grants class certification on New York law claims (Guido/L’Oreal)
Purchasers of a hairstyling product (“Serum”) from L’Oreal brought a class action, asserting that the product was flammable, that its flammability was not adequately disclosed, and that class members would not have bought the product had they known that it was flammable. On that basis, they (...)
The US Supreme Court rules that an arbitration agreement did not prevent effective vindication of antitrust rights (American Express / Italian Colors Restaurant)
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)
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)
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 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)
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 9th Circuit reverses a federal district court’s denial of class certification (Levya/Medline Industries)
Present and former employees of a medical products manufacturer sued under California labor and unfair practice laws for various time calculation practices that allegedly reduced their pay.
The district court denied class certification on the basis that damage amounts for each employee would (...)
The US Ninth Circuit reverses an order denying class certification of plaintiffs’ claim for pay discrimination based on national origin (Parra/Bashas)
Grocery store employees brought a class action alleging discrimination based on race and national origin.
Defendants argued that there was no predominance of common questions, asserting that the Supreme Court’s Comcast decision precluded a finding of predominance because individual damage (...)
The US Eastern District of Kentucky denies class certification due to individual damage calculation (Cowden/Parker)
Individual insurance agents brought a class action against their insurance agency employer, asserting that the agency had agreed to pay its agents a commission on certain health insurance plans but had refused to pay them. The court denied class certification, reasoning that under Comcast, (...)
The US District Court for the Eastern District of Tennesse denies motion to dismiss in antitrust case brought against drug makers (Skelaxin -Metaxalone- Antitrust Litigation)
Plaintiff drug purchasers brought suit under federal and state antitrust laws, contending that the defendants had engaged in an unlawful scheme calculated to raise and maintain the prices of the drug Skelaxin through sham litigation, the filing of sham citizen petitions and unlawful horizontal (...)
The US Eastern District of Michigan certifies a class for liability only (Miri/Dillon)
The plaintiffs, a Michigan brew pub and its owner, brought a class action asserting that standard practices of the Michigan Treasury Department, involving issuance of warrants without judicial approval and search and seizure of property without advance notice, involve routine violations of due (...)
The US District Court for the Northern District of California certifies class action underlying that the predominance element “does not require a plaintiff to prove that each element of her claim is susceptible to class wide proof” (Diamond Foods Securities Litigation)
Shareholders of a nut processing, marketing and distributing company brought a class action under the federal securities laws, asserting that the company had maintained artificially high share prices by understating the cost of walnuts.
Defendants argued that the plaintiff had failed to (...)
The US Central District of California denies class certification due to individual questions of fact (Forrand/Federal Express)
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 Court of Appeals for the Ninth Circuit reinforces the validity of arbitration clauses, but leaves door open for public injunction challenges (Kilgore)
In the U.S., pre-dispute arbitration clauses are common in consumer financial services agreements, such as credit card, banking and investment contracts. These clauses traditionally compel the involved parties to resolve any legal dispute in arbitration, while foreclosing traditional state and (...)
The US District of Kansas grants certification to liability only (Motor Fuel Temperature Sales Practice Litigation)
Gasoline consumers in California brought a class action against gas station owners and operators in California, claiming that their failure to adjust gasoline prices based on the effects of temperature on gasoline volume and to disclose those effects was a violation of California’s unfair (...)
The US Northern District of California denies class certification in high tech employees’ price-fixing lawsuit (High-Tech Employee Antitrust Litigation)
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 Supreme Court vacates no-injury consumer class action (Whirlpool)
The U.S. Supreme Court summarily vacated and remanded the Sixth Circuit’s decision in Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, No. 11-864, 2013 WL 1222646 (U.S. Mar. 27, 2013) (Comcast), which was decided last week. (...)
The US Northern District of New York denies class certification due to individualized damage calculations (Roach/TL Cannon)
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 determines whether the district Court properly certified a class action (Camcost / Behrend)
Challenging Class Action Certification and the Classic Antitrust Case of Comcast v. Behrend*
As an attorney defending an antitrust class action, your job is to get your client out of the case as expeditiously and inexpensively as possible. There are several exit points.
For example, with a (...)
The US Supreme Court overturns class certification, upholdding Rule 23 “rigorous analysis” (Comcast / Behrend)
Comcast v. Behrend: Supreme Court overturns class certification, upholds Rule 23 “rigorous analysis”*
In Comcast Corp. et. al. v. Behrend, et. al., the Supreme Court of the United States, in a 5-4 decision written by Justice Antonin Scalia, reaffirmed the Court’s recent holding in Wal-Mart v. (...)
The US Supreme Court applies class certification’s rigorous analysis also to causation and damages (Comcast / Behrend)
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)
The U.S. Supreme Court has reaffirmed that courts must conduct a "rigorous analysis" to determine whether antitrust class action plaintiffs meet the requirements for class certification, even when that requires inquiry into the merits of the underlying claims, and individual issues of damages (...)
The US Supreme Court holds that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages (Standard Fire Ins. v. Knowles)
On March 19, 2013, the U.S. Supreme Court held in Standard Fire Ins. Co. v. Knowles that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages. Although Standard Fire was not an antitrust case, the decision will (...)
The US Supreme Court preserves the Class Action Fairness Act (Standard Fire / Knowles)
On March 19, 2013, the U.S. Supreme Court held in Standard Fire Ins. Co. v. Knowles that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages. Although Standard Fire was not an antitrust case, the decision will (...)
The US Supreme Court holds that proof of materiality is not a prerequisite to certification of a securities-fraud class action (Amgen/Connecticut Retirement Plans & Trust Funds)
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 (...)
A US Court of Appeals applies “consumer-or-competitor” rule to deny antitrust standing to foreign manufacturer of drug marketed in US by licensee (Ethypharm/Abbott)
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 denying the defendant’s motions to exclude the testimony of the class plaintiffs’ liability expert (Urethane Antitrust Litigation)
In this recent decision, the court applied the well-known Daubert standards governing expert testimony admissibility in denying the defendant’s motions to exclude the testimony of the class plaintiffs’ liability expert. (The Court also denied the defendant’s motion to exclude the opinion of the (...)
The US District of Kansas clarifies the appropriate summary judgment standard for horizontal price-fixing of commodity products (Urethane Antitrust Litigation)
In this opinion, the court clarified the appropriate summary judgment standard to apply to the plaintiffs’ claims of horizontal price-fixing for commodity products, and then ruled on whether the plaintiffs had proffered sufficient evidence to get to trial under that standard. First, the court (...)
US Eastern District Court of New York approves class settlement in a price-fixing lawsuit brought against Vitamin C manufacturers (Vitamin C Antitrust Litigation)
In determining whether to finally approve a class settlement reached with one defendant, the court considered the objections of several members of the proposed indirect purchaser settlement class regarding class counsel’s decision to forego a monetary distribution to the class and instead make a (...)
The US Southern District of New York addresses the question of standing for named class representatives (DDAVP Indirect Purchaser Antitrust Litigation)
When class actions in recent years have been brought asserting claims on behalf of indirect purchasers under state laws that have repealed Illinois Brick, defendants have frequently argued that named class representatives lack "standing" to assert claims in a class action under the laws of (...)
The US Third Circuit clarifies the standard for analyzing the legality of exclusive agreements (ZF Meritor / Eaton)
In this case, the Third Circuit provided needed clarification on the standard for analyzing the legality of exclusive (or at least essentially exclusive) agreements that dominant firms enter into with their customer base. ZF Meritor, the only competitor of Eaton, the dominant supplier of (...)
The US Northern District of Georgia applies objective baselessness and subjective baselessness (Androgel Antitrust Litigation)
Especially in pharmaceutical antitrust class actions, many efforts have been made in recent years to rest cases on Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993)("PRE"), which requires that for a claim of so-called "sham litigation" to remove (...)
The US Court of Appeals for the Second Circuit applies the "filed rate doctrine" to electricity rates set by market-based auctions (Simon / KeySpan)
The Second Circuit was asked to consider whether the plaintiff, a retail consumer of electricity, could maintain an antitrust action against an electricity producer that allegedly agreed with its competitor to increase installed capacity prices and a financial firm that allegedly facilitated (...)
The US District Court for the Eastern District of Pennsylvania certifies a class in a price-fixing conspiracy case against two leading blood reagent producers (Blood Reagents Antitrust Litigation)
The plaintiffs, who alleged a price-fixing conspiracy between two leading blood reagent producers, moved for class certification. The court began by noting its duty to perform a rigorous analysis and to find by a preponderance of the evidence that each requirement of Rule 23 had been satisfied (...)
The US Second Circuit Second Circuit perforates Matsushita standards in reviewing price-fixing conduct by commercial papers manufactures (Publication Paper Antitrust Litigation)
Seizing upon the "opportunity to clarify the application of the standards established" more than a quarter-century ago in Matsushita Electric Industrial Co. v. Zenith Radio Corp. for determining the existence of a jury question as to collusive behavior, the Second Circuit reversed a summary (...)
The US Second Circuit reversed grant of summary judgment on horizontal price-fixing claim (Publication Paper Antitrust Litigation)
In this case, the Second Circuit overruled a district court order granting summary judgment to a company accused of horizontal price-fixing. The plaintiffs presented direct evidence of conspiracy in the form of testimony from one of the conspirators who testified that he had reached an (...)
The US FTC withdraws the policy statement on the use of disgorgement as a remedy for antitrust violations
This article was originally published on In Competition by King & Wood Mallesons (click here).
Cha-Ching - the highest penalties in the world and the FTC is still not happy?*
The FTC has withdrawn a 2003 policy statement that limited equitable monetary remedies for antitrust (...)
The US FTC withdraws 2003 policy statement hinting at further use of disgorgement as a remedy
On July 31, 2012, by a four-to-one vote, the United States Federal Trade Commission ("the Commission") announced it was withdrawing the 2003 Policy Statement on Monetary Equitable Remedies in Competition Cases. In explaining its decision, the Commission expressed concern that "the practical (...)
The US Court of Appeals for the Second Circuit overturnes the district court’s grant of summary judgment holding that the Matsushita standard does not apply in the presence of unambiguous price-fixing evidence (Publication Paper Antitrust Litigation)
The Second Circuit was asked to determine, among other things, whether there was enough evidence for a jury to find that the alleged agreement among competitors to raise prices actually caused the price increases that subsequently occurred. 690 F.3d at 65-66. While the Court conceded that it (...)
US Ninth Circuit holds direct-purchaser antitrust plaintiffs lacked standing to seek damages for alleged antitrust price-fixing in the ATM services (ATM Fee Antitrust Litigation)
Having failed at obtaining federal standing to sue for damages under one exception to the Illinois Brick rule, the plaintiffs argued in the alternative that they had standing under the “ownership/control” exception to that rule. Again, the court disagreed. 686 F.3d at 756. The court found that (...)
The US Third Circuit answers whether a distributor is a direct purchaser (Hypodermic Products Antitrust Litigation)
In this judgment, the Third Circuit was asked to answer an increasingly common question in antitrust litigation in the medical industry: whether a distributor who purchases a product from a manufacturer, albeit pursuant to prices negotiated by a group purchasing organization at the behest of (...)
The US Southern District of New York denies motion to dismiss conspiracy claims (Electronic Books Antitrust Litigation)
In this widely-followed case, consumers of electronic books alleged that the defendants, five of the six biggest publishers and Apple, conspired to raise prices of e-books. The defendants allegedly hatched the conspiracy to stymie the low e-book prices that dominant retailer Amazon was then (...)
The US Northern District of California denies motion to dismiss conspiracy claims with bilateral agreements (High-Tech Employee Antitrust Litigation)
In a high-technology case, employees of various high-tech companies sued their employers for conspiring to restrict their salaries. 856 F. Supp. 2d at 1108. Many of the plaintiffs’ allegations mirrored those from earlier complaints that the Department of Justice filed against the same firms, (...)
US District Court for the District of New Jersey dismisses class action claims of price fixing brought by indirect purchasers against several magnesium oxide companies (Magnesium Oxide Antitrust Litigation)
In this horizontal price-fixing conspiracy case, the defendants argued that the plaintiffs’ complaint failed to adequately plead fraudulent concealment so as to toll the statute of limitations.
In particular, the plaintiffs purportedly failed to plead (1) that the conspiracy was (...)
The US Central District of California rejects plaintiff’s market definition of live rock music concerts (Live Concert Antitrust Litigation)
This case illustrates the degree to which courts have become fundamentally confused in recent years about "market definition" concepts, with the consequence that cases increasingly are dismissed based on rejection of a plaintiff’s proposed product market definition, and expert analysis of market (...)
The US Northern District Court of California recognizes indirect purchasers’ standing in cases where component products have little independent utility (Flat Panel Antitrust Litigation)
In re TFT-LCD (Flat Panel) Antitrust Litig., 2012 U.S. Dist. LEXIS 145935 (N.D. Cal. 2012)
Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme (...)
The US Northern District of California decides antitrust standing issue for indirect purchasers (TFT-LCD Antitrust Litigation)
Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme Court in Illlinois Brick Co. v. Illinois, 431 U.S. 720 (1977) that only so-called "direct (...)
The US Seventh Circuit clarifies the expert testimony standards in connection with class certification (Mesner/Northshore Univ. Health)
In this opinion, addressed above with respect to the class certification element of predominance, the Seventh Circuit also clarified the standards trial courts should use in evaluating expert testimony submitted in connection with class certification.
The plaintiffs filed a motion seeking to (...)
The US Seventh Circuit clarifies the standards trial courts should use in evaluating expert testimony submitted in connection with class certification (Mesner/Northshore Univ. Health)
In this opinion overturning the district court’s denial of class certification, the Seventh Circuit clarified the standards trial courts should use in evaluating expert testimony submitted in connection with class certification.
The plaintiffs filed a motion seeking to exclude the defendant’s (...)
The US District Court for the District of Idaho issues an advisory opinion denying motion to dismiss antitrust conspiracy claims against potato grower cooperatives in US several states (Fresh and Process Potatoes Antitrust Litigation)
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 (...)
Several US Federal District Court rule against customers’ efforts to use arbitration to challenge a merger in the mobile sector (AT&T Mobility / Smith/ Gonnello / Bernardi / Fisher )
Customers’ Efforts to Use Arbitration to Challenge AT&T/T-Mobile Merger Fail*
Federal district courts around the country have blocked AT&T Mobility LLC customers from pursuing arbitration to challenge the merger of AT&T Mobility and T-Mobile USA Inc.—a transaction valued at (...)
The US Supreme Court denies petition for certiorari brought by a drug manufacturer with respect to federal jurisdiction over antitrust class action claims (Lorazepam & Clorazepate Antitrust Litigation)
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 Eighth Circuit rejects FTC’s market definition (Lundbeck)
In this case, the Eighth Circuit affirmed a trial court’s rejection of a case brought by the Federal Trade Commission based on rejection of the FTC’s proposed market definition, even in the face of clear evidence that the challenged conduct had in fact led directly to vastly increased prices, and (...)
The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores/Dukes)
This article has been selected for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision (...)
The US Supreme Court 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)
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 overturns a court of appeal’s decision in the mobile sector holding that federal law preempts state law banning class action waiver in arbitration agreements (AT&T Mobility / Concepcion)
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 2nd Circuit holds that a class action waiver provision contained in commercial contracts between merchants and charge card issuer/servicer provider was unenforceable (American Express)
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 FTC publishes a report on patent system recommending reforms on notice and remedies to benefit both consumers and competition
U.S. Federal Trade Commission Recommends Changes to U.S. Patent System*
The U.S. Federal Trade Commission (“FTC”) has issued a report analyzing the U.S. patent system from a competition policy perspective. The FTC recognizes that, like the competitive process fostered by competition law, the (...)
The US Court of Appeals for the 3rd Circuit approves a classwide settlement against a diamond distributor in abuse of dominance lawsuit (Sullivan/DB Investments)
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 (...)
A US trial Court holds a more rigorous approach to class certification (Plastic Additives Antitrust Litigation)
An August 31, 2010 trial court decision in Plastic Additives Antitrust Litigation is likely to be widely cited by defense counsel in class action cases provides an important example of the scrutiny needed in evaluating dueling testimony by experts. The decision is an early case to apply the (...)
The US District Court of the Eastern District of New York admits the confidentiality of document emanating from the European Commission’s investigation (Visa / MasterCard)
European Commission: Recent Developments on Discovery following Amicus Curiae
On 27 August 2010, the US District Court of the Eastern District of New York, Judge John Gleeson, on appeal issued an order whereby access by the plaintiffs to a Statement of Objections and to a transcript of an Oral (...)
A US Federal Court reinforces that the Twombly “facial plausibility” standard serves as strong basis for dismissal in a price-fixing class action (LaFlamme / Société Air France)
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 US Court of Appeals for the Third Circuit gives green light to antitrust action against giant cablem provider (Comcast)
Experts Can Turn Tide in Class Certification—Federal judge gives green light to antitrust action against Comcast*
A federal judge recently dealt another substantial and costly blow to Comcast in Behrend v. Comcast Corp., an antitrust lawsuit against the giant Philadelphia-based cable provider. (...)
The US Court of Appeals for the 9th Circuit holds a class-arbitration clause in a telephone sector agreement unenforceable under state law (Laster / AT&T Mobility)
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 President signs legislation extending provisions of the ACPERA thus allowing successful leniency applicants to avoid treble damages
Obama Signs Legislation Extending Limitations On Civil Liability For Amnesty Applicants*
On June 19, President Barack Obama signed legislation extending provisions of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 ("ACPERA") that allow successful amnesty applicants under the (...)
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)
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)
In re Hydrogen Peroxide Antitrust Litigation Bleaches Clean the Class Certification Standard*
With its December 30, 2008, decision in In re Hydrogen Peroxide Antitrust Litigation, the Third Circuit joins a growing list of U.S. Courts of Appeals that have clarified the responsibilities that (...)
The US Court of Appeals for the Fourth Circuit holds that parties to an arbitration agreement that prohibited joinder of jointly and severally liable defendants did not alter any substantive right under the Sherman or Clayton Acts (Cotton Yarn Antitrust Litigation)
In In re Cotton Yarn Antitrust Litigation, (505 F.3d 274 (4th Cir. 2007) the Fourth Circuit held inter alia that parties to an arbitration agreement that prohibited joinder of jointly and severally liable defendants did not alter any substantive right under the Sherman or Clayton Acts so as to (...)
The US Antitrust Modernization Commission (AMC) releases report and recommendations to Congress and President Bush
On April 2, 2007, the Antitrust Modernization Commission (“AMC”) released its Report and Recommendations to Congress and President Bush. The bipartisan AMC was commissioned by the Modernization Act of 2002 to examine whether antitrust law needed to be modernized, solicit views from interested (...)
A US Court of Appeals rules that the District Court did not err in dismissing the antitrust claims based on an alleged economic retaliation against a nurse after she rebuffed his sexual advances (Stark / Ear Nose & Throat Specialists of Northwestern Penn)
Asserted Economic Retaliation Against Plaintiff Based on Plaintiff’s Rejection of the Defendant’s Sexual Advances Did Not Violate Section 1 or 2 of the Sherman Act*
In an unpublished opinion, designated as "not precedential," the Third Circuit recently affirmed the District Court’s dismissal (...)
A US Court of Appeals holds that American courts have authority to hear antitrust claims brought by foreign plaintiffs against foreign defendants over foreign conduct (Empagran)
The twenty years since the enactment of the Federal Trade Antitrust Improvements Act (the FTAIA) in 1982 have seen steady progress in the cooperation of antitrust authorities worldwide. Prior to the FTAIA’s passage, the US’s extraterritorial application of its antitrust laws created international (...)
The US Congress adopts significant antitrust amendments within the Protection of the National Cooperative Research and Protective Act
For much of the last decade, virtually all antitrust policy development arising out of Washington has come from the enforcement agencies. The other traditional Washington actors responsible for key shifts in antitrust policy and enforcement-Congress and the Supreme Court-have been largely (...)
Public sector
The US FTC and the DOJ publish for public comment proposed Antitrust Guidelines for International Enforcement and Cooperation
The Federal Trade Commission and the Department of Justice have published for public comment proposed Antitrust Guidelines for International Enforcement and Cooperation ("2016 Proposed Guidelines"). This would be the third iteration of international enforcement guidelines, following the (...)
The US Court of Appeals for the 4th Circuit finds in favour of the appellee on the account of its counterclaims of unjust enrichment and breach of contract in relation to a subcontracting agreement on the provision of transport and logistics for the US army in Afghanistan (Vlox / Mirzada)
Fourth Circuit Affirms $2.8 Million Jury Verdict Obtained By Womble Carlyle For Government Subcontractor*
On December 16, 2013, the Fourth Circuit issued an opinion affirming a $2.8 million jury verdict obtained by a Womble Carlyle trial team, chaired by Jason Hicks, in the Eastern District of (...)
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