US Private Enforcement

Anticompetitive practices

 The US District Court for the District of Delaware contradicts the Supreme Court precedent regarding patent settlements in the pharmaceutical sector (Chimicles Schwartz Kriner / Donaldson-Smith / Amgen / Teva / Watson / Actavis)
White & Case (New York)
United States 2 contributions 149 visits
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White & Case (Washington)
United States 6 contributions 2683 visits
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White & Case (Washington)
United States 3 contributions 287 visits
A Nov. 30 decision by the U.S. District Court for the District of Delaware, In re: Sensipar Antitrust Litigation, contradicts controlling U.S. Supreme Court precedent and, if followed, could have significant implications for patent settlements well outside the pharmaceutical context in which it (...)

The US New York State Senate proposes legislation to modernize state antitrust law and expands the State’s and private litigants’ ability to litigate against companies for anticompetitive conduct (Twenty-First Century Anti-Trust Act)
Constantine Cannon (New York)
United States 2 contributions 1827 visits
New York Could Lead the Nation Into 21st Century Antitrust Enforcement* New York is on the verge of revamping state antitrust enforcement to tackle competition issues of the 21st Century. On September 14, 2020, the Consumer Protection Committee of the New York State Senate held a virtual (...)

The US Court of Appeals for the Third Circuit overturns a district court decision certifying a class of direct purchaser plaintiffs without undertaking a rigorous analysis in order to resolve factual disputes, assess competing evidence or weigh conflicting expert testimony (Lamictal)
McDermott Will & Emery (New York)
United States 5 contributions 734 visits
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Crowell & Moring (Washington)
United States 16 contributions 1704 visits
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McDermott Will & Emery (Chicago)
United States 10 contributions 1896 visits
The US Court of Appeals for the Third Circuit recently concluded in In re Lamictal Direct Purchaser Antitrust Litigation that a district court’s reliance on average prices to determine class-wide impact was insufficient. Instead, courts must conduct a rigorous analysis of the facts, evidence and (...)

The US Court of Appeals for the Seventh Circuit rules on the co-conspirator exception to the Illinois Brick rule against distributors in the healthcare market(Marion Healthcare / Becton Dickinson & Company)
Bona Law (San Diego)
United States 17 contributions 2859 visits
The Seventh Circuit Explains the “Co-Conspiracy Exception” to the Illinois Brick Rule in Healthcare Antitrust Lawsuit* Antitrust law evolves in such a way that opinions from federal appellate courts are always interesting in how they affect the doctrine. But there are a select few judges who (...)

The Court of Appeals for the Seventh Circuit clarifies in a passing on case between two healthcare providers the issues of whether and when a consumer who purchases from a distributor may hold a manufacturer liable for overcharges resulting from a conspiracy between the distributor and manufacturer (Marion Healthcare / Becton Dickinson)
Hausfeld (New York)
United States 2 contributions 121 visits
Introduction In its recent decision in Marion Healthcare, LLC v. Becton Dickinson & Co., the Seventh Circuit added to the discussion among circuit courts as to whether and when a consumer who purchases from a distributor may hold a manufacturer liable for overcharges resulting from a (...)

The US District Court for the Southern District of Florida receives an antitrust claim against bitcoin companies concerning alleged coordination in order to restrain trade (United American Corp / Bitmain)
Constantine Cannon (New York)
United States 1 contribution 144 visits
The First Blockchain Antitrust Case. Or Is It?* Legal professionals paying close attention to the still nascent world of blockchains and cyptocurrencies are following what is considered to be the first antitrust case involving cryptocurrencies. For enthusiasts, United American Corp. v. (...)

The US District Court for the Eastern District of Pennsylvania finds that a company was not part of a conspiracy to manipulate the supply of eggs and raise prices (In re Processed Egg Prods)
Dechert (Philadelphia)
United States 1 contribution 275 visits
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Dechert (Philadelphia)
United States 2 contributions 390 visits
The case began 10 years ago when a class of companies that purchase eggs sued the country’s leading egg producers, seeking more than $1 billion in damages. The plaintiffs claimed that the egg producers conspired to manipulate the supply and raise prices for eggs. Specifically, the buyers (...)

The US District Court for the Northern District of California denies a motion for class certification for a proposed class of indirect purchasers of lithium ion batteries (Lithium Ion Batteries)
McDermott Will & Emery (Washington)
United States 6 contributions 854 visits
Indirect purchaser plaintiffs’ motion for class certification in a lithium ion battery suit was denied for failing to show concrete evidence linking increased input costs to increased end-product prices; theoretical inference is not enough. What happened: The US District Court for the Northern (...)

The 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)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 8 contributions 1936 visits
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Skadden, Arps, Slate, Meagher & Flom (New York)
United States 2 contributions 545 visits
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Skadden, Arps, Slate, Meagher & Flom (New York)
United States 6 contributions 1642 visits
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 US Court of Appeals for the Ninth Circuit upholds dismissal of an antitrust suit where a jury verdict in a parallel case found no patent infringement (Casacade Computer / RPX / Samsung)
McDermott Will & Emery (Washington)
United States 6 contributions 854 visits
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Crowell & Moring (Washington)
United States 16 contributions 1704 visits
What Happened: Wading into the merging streams of antitrust and patents, the US Court of Appeals for the Ninth Circuit upheld dismissal of an antitrust suit where a jury verdict in a parallel case found no patent infringement. Cascades Computer Innovation, LLC v. RPX Corp. and Samsung (...)

The US District Court in the Southern District of New York dismisses a class action lawsuit alleging a large number of entities and individuals in a cartel case (Sea brent crude oil)
Skadden, Arps, Slate, Meagher & Flom (New York)
United States 12 contributions 2395 visits
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 1 contribution 349 visits
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 FTC urges the Court of Appeals for the First Circuit to hold that a reverse payment need not be in cash (Loestrin)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 6470 visits
U.S. FTC urges the Appeals Court to revive the Loestrin Suit* On December 7, 2015, during oral argument, the U.S. FTC urged the Court of Appeals for the First Circuit to revive the Loestrin suit. The case concerns a so-called reverse payment settlement. In 2009 Watson Pharmaceuticals agreed (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Crowell & Moring (New York)
United States 3 contributions 511 visits
First Circuit boosts antitrust challenges to pay-for-delay settlements by finding non-cash deals subject to Actavis scrutiny*Antitrust challenges to so-called “pay-for-delay” settlements—in which brand-name drug makers temporarily keep generics out of the market by making payments to would-be (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Rutgers University (Camden)
United States 22 contributions 17165 visits
On February 22, 2016, in the second federal appellate drug patent settlement ruling since the Supreme Court’s decision in FTC v. Actavis, 133 S. Ct. 2223 (2013), the U.S. Court of Appeals for the First Circuit vacated a lower court decision granting a motion to dismiss for defendants. Writing (...)

The US Court of Appeals for the Ninth Circuit hears interesting oral argument on Foreign Trade Antitrust Improvements Act related issues (Best Buy / Hannstar Display)
GeyerGorey (Washington)
United States 17 contributions 3236 visits
Ninth Circuit’s Oral Argument on FTAIA Related Appeal* If an FTAIA related case is ever taken by the Supreme Court I believe it will be a private civil price fixing damage case like Best Buy Co., Inc. v. Hannstar Display Corporation. The Antitrust Division’s international cartel prosecutions (...)

The US District Court for the Northern District of California upholds assignment of antitrust claims to indirect purchasers (United Food / Teikoku Pharma)
Patterson Belknap Webb & Tyler (New York)
United States 5 contributions 968 visits
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Patterson Belknap Webb & Tyler (New York)
United States 1 contribution 182 visits
Northern District of California Upholds Assignment of Antitrust Claims to Indirect Purchasers* Portions of a reverse payment suit against Endo Pharmaceuticals and others were recently dismissed by Judge William H. Orrick of the Northern District of California. The case [1] was brought by (...)

The US Supreme Court declines an appeal for two related antitrust cases involving an international price-fixing cartel (Motorola / AU Optronics)
Womble Bond Dickinson (Washington)
United States 10 contributions 2502 visits
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 a record $1.2 billion proposed pay-for-delay settlement and injunctive relief restricting future similar settlements of patent infringement cases (Cephalon)
Weil, Gotshal & Manges (New York)
United States 2 contributions 984 visits
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Weil, Gotshal & Manges (New York)
United States 2 contributions 1448 visits
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 Circuit Court of Appeals for the Third Circuit annuls a district court’s order which certified a class of direct purchasers in a price-fixing suit in the blood reagents market (Ortho Clinical Diagnostics)
McDermott Will & Emery (Paris)
France 109 contributions 50312 visits
On Wednesday, April 8, 2015, the Third Circuit Court of Appeals vacated a district court’s order certifying a class of direct purchasers of blood reagents in a price-fixing suit against Ortho-Clinical Diagnostics Inc. In re Blood Reagents, case number 12-4067. Plaintiffs allege that (...)

The US DoJ announces first criminal prosecution against a conspiracy specifically targeting e-commerce (Topkins)
Siemens (New York)
United States 21 contributions 6962 visits
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Patterson Belknap Webb & Tyler (New York)
United States 5 contributions 1124 visits
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 clarifies the application of the foreign trade antitrust improvement act (Motorola / AU Optronics)
Wolters Kluwer (Riverwoods)
United States 78 contributions 36984 visits
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)
BakerHostetler (Washington)
United States 2 contributions 258 visits
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 Seventh Circuit reminds companies that they cannot forum shop (Motorola / AU Optronics)
Siemens (New York)
United States 21 contributions 6962 visits
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Patterson Belknap Webb & Tyler (New York)
United States 2 contributions 725 visits
Seventh Circuit to Motorola: No Rehearing En Banc* On December 1, 2014, we wrote about the Seventh Circuit’s decision in Motorola Mobility LLC v. AU Optronics Corp., which affirmed dismissal of the vast majority of Motorola’s claims regarding LCD panels. Motorola filed a petition for rehearing (...)

The US Court of Appeals for the Seventh Circuit agrees to rehear the appeal dismissing an antitrust claim under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
GeyerGorey (Washington)
United States 17 contributions 3236 visits
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 (...)

The US District Court for the Eastern District of Pennsylvania 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 (In Re Processed Egg Products Antitrust Litigation)
Sheppard Mullin (Los Angeles)
United States 46 contributions 6447 visits
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Sheppard Mullin (San Francisco)
United States 2 contributions 307 visits
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 (...)

The US District Court for the Southern District of New York 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)
Womble Bond Dickinson (Charlotte)
United States 3 contributions 468 visits
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 (...)

The US District Court for the Southern District of New York receives notification that both the class plaintiffs, state plaintiffs and the defendants have reached an agreement concerning the lawsuit in the e-books price fixing case (Apple)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 6470 visits
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)
Wolters Kluwer (Riverwoods)
United States 78 contributions 36984 visits
Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act* The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in (...)

A US District Court files an antitrust action against a boycott impeding private schools to compete on the markets for commercial exhibition of high school football contests and basketball contests in Virginia (Liberty Christian Academy / VHSL)
Womble Bond Dickinson (Washington)
United States 10 contributions 2502 visits
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 of anticompetitive agreements to exclude the plaintiff from the market for ownership of professional basketball franchises (Donald Sterling / NBA)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 US District Court for the District of Puerto Rico acquits shipping company’s former vice president of charges of conspiring with rivals to fix the prices (Crowley Liner Services)
Paul Weiss (Washington)
United States 5 contributions 1434 visits
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Paul Weiss (Washington)
United States 4 contributions 362 visits
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Paul Weiss (Washington)
United States 2 contributions 393 visits
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This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. 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 US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
Bona Law (San Diego)
United States 17 contributions 2859 visits
The Virginia Board of Medicine Violated the Antitrust Laws* Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)

The US District Court for the Northern District of California grants class certification and gives its preliminary approval for a partial class action settlement of a lawsuit on the allegation of conspiracy to hold down salaries in Silicon Valley (High-Tech employees)
Bona Law (San Diego)
United States 17 contributions 2859 visits
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 Seventh Circuit affirms dismissal of antitrust claims under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
Sheppard Mullin (San Francisco)
United States 6 contributions 772 visits
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 US Court of Appeals for the Ninth Circuit upholds a lower court’s judgement dismissing claims of conspiracy to restrain trade and attempted monopolization on the market for prosthetic microprocessor knees (DAW Industries / Hanger Orthopedic)
Sheppard Mullin (San Francisco)
United States 13 contributions 2684 visits
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 for the Northern District of Texas dismisses a class action lawsuit filed by an online travel discount company against 12 dominant hotel chains and 9 online travel agencies alledging unfair exclusion from the market (OTC / Hotel Booking)
Ashurst (Milan)
Italy 100 contributions 23629 visits
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)
Sheppard Mullin (San Francisco)
United States 6 contributions 772 visits
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Sheppard Mullin (San Francisco)
United States 5 contributions 1290 visits
LCD Court Dismisses Motorola’s Multi-Billion Dollar Antitrust Claims Based On Overseas Purchases* On January 23, in a landmark decision that is one of the most important yet to be handed down in the sprawling LCD antitrust litigation pending in various federal courts since 2006, Judge Joan (...)

A US District Court largely rejects a motion to dismiss an antitrust price-fixing complaint, though it holds that a recognized exception against indirect purchaser suits has not been adequately pled (Lithium Battery)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 (...)

The US Court of Appeals for the 4th Circuit finds in favour of the appellee on the account of its counterclaims of unjust enrichment and breach of contract in relation to a subcontracting agreement on the provision of transport and logistics for the US army in Afghanistan (Vlox / Mirzada)
Womble Bond Dickinson (Washington)
United States 10 contributions 2502 visits
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 (...)

The US District Court for the Eastern District of New York approves the proposed class action settlement of the antitrust suit over swipe fees (Visa / MasterCard)
Manatt, Phelps & Phillips LLP (Los Angeles)
United States 1 contribution 223 visits
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 U.S. 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)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
“Anti-Patent Troll” Fails to Secure Dismissal of Amended Antitrust Complaint* Back in January, I covered the case of Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), where Judge Yvonne Gonzalez Rogers dismissed – with leave to amend – Cascades’ (...)

The US District Court for the Northern District of California certifies a class of student athletes seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 (...)

Dominance

 The US Court of Appeals for the Federal Circuit reverses a judgment that upheld “skinny labels” and allowed a generic to launch on uses not covered by a patent (GlaxoSmithKline / Teva)
Rutgers University (Camden)
United States 22 contributions 17165 visits
On October 2, 2020, the U.S. Court of Appeals for the Federal Circuit vacated a district court’s judgment in favor of defendant Teva in a case involving “skinny labels.” GlaxoSmithKline LLC v. Teva Pharm. USA, Inc., 976 F.3d 1347 (Fed. Cir. 2020). When a drug can be used to treat multiple (...)

The US Court of Appeals for the Third Circuit upholds a lower Court’s ruling certifying a class of pharmaceutical drug purchasers alleging that the defendant engaged in anticompetitive behaviour to maintain its monopoly over a drug (Suboxone / Indivior)
Hausfeld (Washington)
United States 5 contributions 186 visits
On July 28, 2020, a Third Circuit Court of Appeals panel unanimously upheld a lower court ruling certifying a class of Suboxone purchasers who alleged that the defendant Indivior Inc. engaged in anticompetitive behavior to maintain its monopoly over the drug. The Third Circuit panel rejected (...)

The US Court of Appeals for the Third Circuit affirms directed verdict following rare price discrimination trial (Spartan Concrete Products / Argos USVI)
Jones Day (Washington DC)
United States 1 contribution 163 visits
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Jones Day (Cleveland)
United States 11 contributions 3836 visits
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Jones Day (Washington DC)
United States 23 contributions 10455 visits
Failure to show antitrust injury proved fatal to price discrimination claims as the Third Circuit affirmed a directed verdict in favor of cement company, Argos USVI, in a case brought by its customer, ready-mix concrete company Spartan Concrete Products ("Spartan"). This decision highlights (...)

The US District Court for the Central District of California hears private enforcement actions alleging price discrimination by an energy drink manufacturer (Living Essentials)
Bona Law (Detroit)
United States 15 contributions 2958 visits
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. ROBINSON-PATMAN SUITS AGAINST 5-HOUR ENERGY MAKER PROVIDE LESSONS FOR OTHER SUPPLIERS* Living Essentials LLC, the maker of 5-hour Energy drinks, has faced two (...)

The US District Court Southern District of California receives a claim from a smartphone manufacturer against one of its suppliers over allegedly abusive wireless patents (Apple / Qualcomm)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 6470 visits
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 Court of Appeals for the Tenth Circuit affirms a lower Court decision and dismisses the complaint due to difficulties to prove the possessed market power and the adverse effects on competition (Suture Express / Cardinal Health / Owens & Micro)
Mc Dermott Will & Emery (Irvine)
United States 3 contributions 146 visits
In an antitrust case involving bundled discount on sutures, the United States Court of Appeals for the Tenth Circuit affirmed a lower court decision granting summary judgment in favor of defendants Cardinal Health 200, LLC and Owens & Micro Distribution, Inc. The Tenth Circuit held that (...)

The US District Court for the Northern District of California receives joint filling closing over three years of patent and antitrust proceedings (Samsung / Apple)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 6470 visits
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 (...)

The US District Court of California dismisses tying claim related to the market for distribution of hotel content since the tying product and the tied product were not separate (Pro Search Plus / VFML Leonardo)
Sheppard Mullin (Los Angeles)
United States 46 contributions 6447 visits
De Facto Exclusive Dealing: What a Difference a Day Makes* In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media content for (...)

The US District Court of Western Texas dismisses antitrust claims predicated upon alleged trademark misuse about flow conditioners in oil pipelines (RJ Machine / Canada Pipeline Accessories)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 alleged (...)

The US Court of Appeals for the Ninth Circuit affirms the District Court’s denial of class certification and the dismissal of the complaint with prejudice (Sommers / Apple)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 (...)

Mergers

 The US Court of Appeals for the Fourth Circuit upholds the first divestiture order in an antitrust suit brought by a private party challenging a merger, years, after the transaction in the door manufacturing sector (Steves & Sons / Jeld-Wen)
Baker Botts (Washington)
United States 11 contributions 1817 visits
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Baker Botts (Washington)
United States 2 contributions 393 visits
On February 18, 2021, the U.S. Court of Appeals for the Fourth Circuit upheld the first divestiture order in an antitrust suit brought by a private plaintiff which challenged its rival’s acquisition four years after the transaction. Post-consummation merger challenges are rare and—until now—have (...)

The Delaware Chancery Court issues an opinion in litigation between two health-insurance giants over a failed merger and confirms that neither is entitled to damages (Anthem / Cigna)
Skadden, Arps, Slate, Meagher & Flom (New York)
United States 1 contribution 63 visits
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 13 contributions 5605 visits
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Skadden, Arps, Slate, Meagher & Flom (New York)
United States 12 contributions 2395 visits
On August 31, 2020, the Delaware Chancery Court issued an opinion in litigation between Anthem and Cigna related to the contract in their terminated merger. In its sprawling 306-page opinion, the court detailed a “corporate soap opera” in which the parties’ “battle for power spanned multiple acts.” (...)

The US District Court for the Eastern District of Virginia orders a defendant in private antitrust litigation to divest a manufacturing plant following a competitor’s merger challenge (Steves & Sons / Jeld-Wen)
Jones Day (Houston)
United States 28 contributions 13308 visits
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Jones Day (Washington DC)
United States 4 contributions 1068 visits
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Jones Day (Washington DC)
United States 2 contributions 243 visits
A federal district court has ordered a defendant in private antitrust litigation to divest a manufacturing plant following a competitor’s merger challenge. Although the decision is certain to be appealed, it may embolden customers or competitors wishing to challenge a transaction and create new (...)

Procedures

 The US Court of Appeals for the Ninth Circuit clarifies class certification standards in an antitrust appeal (Olean Wholesale Grocery / Bumble Bee Foods)
Jones Day (San Francisco)
United States 3 contributions 697 visits
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Jones Day (San Francisco)
United States 1 contribution 579 visits
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Jones Day (Irvine)
1 contribution 579 visits
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The Ninth Circuit approved use of statistical analysis that relies on averaging but reversed class certification because the district court failed to resolve whether more than a de minimis number of putative class members were injured. On April 6, 2021, in Olean Wholesale Grocery Coop. v. (...)

The US Congress approves the renewal and permanent extension of the Antitrust Criminal Penalty Enhancement and Reform Act
Skadden, Arps, Slate, Meagher & Flom (New York)
United States 9 contributions 5302 visits
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Skadden, Arps, Slate, Meagher & Flom (New York)
United States 12 contributions 2395 visits
On June 25, 2020, Congress approved the renewal and permanent extension of the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA or “the Act”), which limits the civil damages exposure of companies that cooperate with the Department of Justice (DOJ) in selfreporting their own (...)

The U.S. Supreme Court rejects an attempt to block consumer claims against a big tech company under indirect purchaser rule (Apple / Pepper)
Constantine Cannon (New York)
United States 1 contribution 3196 visits
Apple v. Pepper: Supreme Court Rejects Attempt to Block Consumer Claims Under Indirect-Purchaser Rule* The Supreme Court on Monday issued a much-anticipated decision in the Apple v. Pepper case, where iPhone owners are accusing Apple of monopolizing the retail market for iOS applications, or (...)

The US Supreme Court holds that the claims of consumers purchasing apps from a big tech app store may proceed as they are direct purchasers of the big tech company (Apple / Pepper)
Covington & Burling (Washington)
United States 12 contributions 9174 visits
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Covington & Burling (Washington)
United States 1 contribution 2113 visits
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Covington & Burling (Washington)
United States 6 contributions 2346 visits
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Appellate and Supreme Court On May 13, 2019, the Supreme Court (“the Court”) announced its 5-4 decision in Apple, Inc. v. Pepper, permitting iPhone users to (...)

The US Supreme Court rejects an attempt to block consumer claims against a big tech company under the indirect-purchaser rule (Apple / Pepper)
Jones Day (Silicon Valley)
United States 10 contributions 3368 visits
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Jones Day (Houston)
United States 28 contributions 13308 visits
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Jones Day (Los Angeles)
United States 1 contribution 788 visits
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This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In May 2019, the U.S. Supreme Court issued a 5–4 decision in Apple v. Pepper, one of the Court’s most significant antitrust rulings of the last several years. In a (...)

The 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)
Wolters Kluwer (Chicago)
4 contributions 1081 visits
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 Supreme Court accepts a claim as the opportunity to revisit its rules on antitrust claims by indirect purchaser (Apple / Pepper)
Clifford Chance (Washington D.C.)
United States 1 contribution 67 visits
On June 18, 2018, the U.S. Supreme Court accepted Apple’s petition for certiorari in Apple Inc. v. Pepper, appealing the Ninth Circuit’s decision that Apple is, by contract, the exclusive distributor of iPhone applications (“apps”) through the online Apple App Store platform, from which consumers (...)

The US DoJ Antitrust Division names deputy assistant attorney general for criminal enforcement
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 8 contributions 1936 visits
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 29 contributions 7748 visits
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 13 contributions 5605 visits
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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)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
United States 13 contributions 5605 visits
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Jones Day (Cleveland)
United States 11 contributions 3836 visits
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Jones Day (Houston)
United States 28 contributions 13308 visits
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This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The U.S. Department of Justice Antitrust Division will consider individual civil enforcement actions against executives implicated in corporate wrongdoing, (...)

The US Supreme Court grants certiorari and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed immediately, notwithstanding other cases still pending in the same proceeding (Gelboim / Bank of America)
Weil, Gotshal & Manges (New York)
United States 4 contributions 844 visits
Supreme Court to Review Appeal Issue in LIBOR Litigation* 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 immediately, notwithstanding other (...)

A US Court of Appeals affirms on statute of limitations grounds the district court’s dismissal of the Sherman Act and Clayton Act claims related to an allegation of anti-competitive price increase on the market for petroleum wax-based oxidates (Z Technologies / Lubrizol)
Sheppard Mullin (Los Angeles)
United States 46 contributions 6447 visits
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 (...)

The US District Court for the Northern District of California receives a letter from former employee and plaintiff in the trial asking the judge to reject the settlement negotiated by his lawyers (High-Tech employees)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 a renewed motion to dismiss based on the Noerr-Pennington doctrine given such a conclusion would contradict the Supreme Court’s decision finding that a reverse payment settlement agreement should be subject to antitrust scrutiny (Actavis)
Sheppard Mullin (Los Angeles)
United States 46 contributions 6447 visits
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 U.S. Court of Appeals affirms the dismissal of the antitrust claims, agreeing that plaintiffs lack standing (Bruce Max Davis / AT&T Wireless Services)
Orrick, Herrington & Sutcliffe (San Francisco)
United States 22 contributions 7709 visits
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 a 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 worldwide (Marine Hose)
Primerio (Washington)
44 contributions 8323 visits
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 clarifies standing requirements under the federal trademark law with possible implications for the antitrust claims (Lexmark International / Static Control Components)
Bona Law (San Diego)
United States 17 contributions 2859 visits
Will the Supreme Court’s Lexmark Standing Decision Lead Indirect-Purchaser Antitrust Plaintiffs to Federal Court?* While waiting for my flight to leave San Diego on my way to Washington, DC for the ABA Antitrust Spring Meeting, I saw on Twitter—the best source for immediate Supreme Court (...)

The US Supreme Court affirms the judgment of the Court of Appeals for the Sixth Circuit and gives voice to criticism against the traditional standing test for antitrust claims (Lexmark International / Static Control Components)
Womble Bond Dickinson (Washington)
United States 10 contributions 2502 visits
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 District Court for the District of New Jersey dismisses antitrust class action against two pharma producers regarding an agreement because no reverse payment with cash was involved to keep the rival off the market (GSK / Teva)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 6470 visits
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 U.S. Supreme Court reviews a decision of a District Court in order to determine a party’s standing to maintain an action under Federal Trademark Law (Lexmark International / Static Control Components)
Womble Bond Dickinson (Washington)
United States 10 contributions 2502 visits
Supreme Court to Decide Requirements for Standing under Lanham Act* In the coming weeks, the Supreme Court will decide a case involving the proper framework for determining standing to maintain an action for false advertising under the Lanham Act. The case, Lexmark International, Inc. v. (...)

The US Supreme Court rules that a state attorney general asserting state law claims for injuries incurred by its citizens is not required to be removed to federal court under the Class Action Fairness Act (AU Optronics)
Wolters Kluwer (Riverwoods)
United States 78 contributions 36984 visits
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 Seventh Circuit reconfirms class certification post-Comcast (Butler / Sears Roebuck)
Cohen Milstein (Washington)
United States 48 contributions 6438 visits
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Cohen Milstein (New York)
United States 48 contributions 6438 visits
Purchasers of Kenmore washing machines brought class actions alleging products defects involving mold and defective control units. The district court certified the defective control unit class but refused to certify the mold class. On appeal, the Seventh Circuit reversed the refusal to (...)

The US Court of Appeals for the Third Circuit vacates class certification order on ascertainability grounds in consumer false advertising case (Carerra / Bayer)
Cohen Milstein (Washington)
United States 48 contributions 6438 visits
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Cohen Milstein (New York)
United States 48 contributions 6438 visits
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 (...)

Regulatory

 The US FTC and DOJ publish the proposed antitrust guidelines for international enforcement and cooperation
Jones Day (Cleveland)
United States 11 contributions 3836 visits
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Jones Day (Washington DC)
United States 23 contributions 10455 visits
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Jones Day (Washington DC)
United States 16 contributions 13372 visits
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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 (...)

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