D.C. District Court Denies Motion To Dismiss FTC Monopolization Claim Based On Loyalty Discount Program And Exclusive Dealing Arrangements
On January 17, 2020, District Judge John D. Bates of the United States District Court for the District of Columbia denied defendant’s motion to dismiss an FTC complaint alleging monopolization in violation of Section 2 of the Sherman Act against a health information technology company (the “Company”), rejecting the Company’s arguments that the Court lacked subject matter jurisdiction under Section 13(b) of the FTC Act, and finding that FTC had adequately pleaded a Section 2 violation. FTC v. Surescripts LLC, 19-1090 (D.D.C. Jan. 17, 2020).
United States District Court Judge Denies Writers Guild Motion To Dismiss Antitrust Suit Brought By Hollywood Talent Agencies Alleging The Orchestration Of An Illegal Boycott In The Entertainment Industry
On January 6, 2020, District Judge Andre Birotte Jr. of the United States District Court for the
Central District of California denied defendants, Writers Guild of America West, Inc. and Writers Guild of America East, Inc.’s (“WGA”) motion to dismiss an action brought by three of the largest Hollywood talent agencies alleging that WGA violated Section 1 of the Sherman Act by orchestrating an illegal boycott. William Morris Endeavor Entertainment, LLC., et al. v. Writers Guild of America, West, Inc. et al., No. 2:19-cv-05465-AB-FFMx (Jan. 7, 2020).
Court Orders NCAA To Pay Student Athletes’ $33M Legal Bill After Successful Antitrust Challenge To NCAA Rules But Declines To Apply A Multiplier
On December 23, 2019, Magistrate Judge Nathaniel M. Cousins of the United States District Court for the Northern District of California issued an order directing the National Collegiate Athletic Association (“NCAA”) to pay $31.8 million in attorney fees and $1.3 million in costs incurred by plaintiffs in their antitrust challenge to certain NCAA rules governing compensation for student-athletes. In re National Collegiate Athletic Association Athletic Grant-in-aid Cap Antitrust Litigation, No. 4:14-md-02541 (N.D. Ca. Dec. 23, 2019).
Texas Court Of Appeals Gives Plaintiff Second Take In Conspiracy Suit Against Major Movie Theater Chain
On December 5, 2019, the Court of Appeals for the First District of Texas held that a movie theater chain presented sufficient evidence suggesting two national competitors conspired to prevent the chain’s entry to withstand summary judgment. This ruling reversed the trial court’s decision, which granted summary judgment to the remaining defendant and dismissed antitrust restraint-of-trade claims. iPic-Gold Class Entm’t LLC, et al. v. AMC Entm’t Holdings Inc., et al., No. 01-17-00805-CV (Tex. App. Dec. 5, 2019). Justice Peter Kelly, writing for a unanimous panel, ruled that evidence of parallel actions by the two competitors and communication lines between them raised genuine issues of material fact as to the existence of a conspiracy in violation of The Texas Free Enterprise and Antitrust Act (“TFEAA”).
Eastern District Of Pennsylvania Refuses To Determine Proper Standard Of Review In No-Poach Suit At The Motion To Dismiss Phase; Denies Motion In Part
On November 25, 2019, Judge Anita Brody of the United States District Court for the Eastern District of Pennsylvania issued an order granting in part, and denying in part, defendants’ motion to dismiss claims alleging Jiffy Lube’s (the “Company’s”) franchise agreements included no-poach provisions that violate Section One of the Sherman Act. Fuentes v. Royal Dutch Shell PLC, et al., 18-cv-05174 (E.D. Pa. Nov. 25, 2019). Plaintiffs alleged that requests to be transferred between the Company franchisees in Florida and Pennsylvania were denied because of no-poach clauses that prevented franchisees from hiring other franchisees’ employees while they were working at the Company and for six months following the end of their employment. According to plaintiffs, the no-poach provision in the Company’s franchising agreements suppressed wages, inhibited employment mobility and lessened professional work opportunities.
Ninth Circuit Affirms Dismissal Of ODD Price-Fixing Suit
On November 20, 2019, the United States Court of Appeals for the Ninth Circuit affirmed summary judgment dismissing indirect purchaser plaintiffs’ claims that defendants, electronics manufacturers, conspired to fix the prices of optical disc drives (“ODD”) and computers with ODD. Indirect Purchaser Class v. Samsung Electronics Co. Ltd. et al., No. 1:18-cv-15058 (9th Cir. 2019). The Ninth Circuit rejected plaintiffs’ claims, because their economic expert’s analysis seeking to show that the fixed prices were passed on to consumers was not supported by the record evidence.
Plaintiffs Failed To Sufficiently Allege Airlines’ Parallel Actions To Establish Conspiracy Claim
On November 12, 2019, Judge George J. Hazel of the United States District Court for the District of Maryland dismissed without prejudice plaintiffs’ putative class action against major airlines with routes between the United States and Mexico. Plaintiffs had failed to allege violations of the Racketeering Influenced Corrupt Organizations Act (“RICO”), Section 1 of the Sherman Act, or state law. Rojas v. Delta Airlines, Inc., Case No. GJH-19-665 (D. Md. Nov. 12, 2019). The Court also denied defendants’ motion to change venue.
Federal Trade Commission Orders Otto Bock To Unwind Consummated Merger
On November 6, 2019, the Federal Trade Commission (“FTC” or “Commission”) unanimously upheld an Administrative Law Judge’s decision requiring Otto Bock HealthCare North America, Inc. (“Otto Bock”) to unwind its consummated acquisition of Freedom Innovations (“Freedom”).The Commission concluded that the transaction resulted in anticompetitive harm in the market for microprocessor-equipped prosthetic knees (“MPKs”), which offer certain improvements over conventional, mechanical prosthetic knees.The decision represents the first time that the current slate of Commissioners has ordered the unwinding of a consummated transaction.
Second Circuit Affirms Dismissal Of Pharmaceutical Antitrust Action, Holding The FTAIA’s Import Exclusion Is Effects-Based, Not Intent-Based
On November 5, 2019, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (Panel) affirmed the U.S. District Court for the Southern District of New York’s dismissal of antitrust claims brought against manufacturers of cancer treatment drugs. Biocad JSC v. F. Hoffmann-La Roche Ltd., No. 17-3486-cv (2d Cir. Nov. 5, 2019). Plaintiff, a private pharmaceutical company based in Russia, alleged that defendants conspired to block plaintiff from entering the U.S. market for cancer treatment drugs in violation of Sections 1 and 2 of the Sherman Act and other statutes. In affirming the district court’s dismissal, the Panel held plaintiff’s claims were barred under the Foreign Trade Antitrust Improvements Act (“FTAIA”), clarifying that, in the Second Circuit, the proper test under the FTAIA’s import exclusion is effects-based, not intent-based.
Western District Of Kentucky Upholds Complaint Challenging Franchise No-Poach Agreements As Horizontal Restraints Of Trade
On October 21, 2019, Judge Joseph H. McKinley Jr. of the United State District Court for the Western District of Kentucky issued a mixed order and opinion that denied Defendants Papa John’s International, Inc. and Papa John’s USA’s (“Papa John’s” or “Defendants”) motion to dismiss Plaintiffs’ class claims, but granted Defendants’ motion to compel one of the named plaintiffs to arbitrate. In Re Papa John’s Employee and Franchisee Employee Antitrust Litigation, NO: 3:18-CV-00825-JHM (W.D. Ky. 2019). The case involves three consolidated putative class actions filed by current and former employees against defendants, alleging no-poach, or no-hire, clauses in the company’s franchise agreements are a horizontal restraint on trade and a per se violation of Section 1 of the Sherman Act. The Court ruled that plaintiffs adequately alleged a per se violation, but that discovery would be necessary to determine what standard of review would apply moving forward.
Southern District Of New York Dismisses “Truly Novel” Restraint Of Trade Theory In Pharmaceutical Antitrust Action
On October 8, 2019, United States District Judge for the Southern District of New York Ronnie Abrams dismissed all but one claim in a putative antitrust class action brought against Takeda Pharmaceutical Company Ltd. and various Takeda entities, as well as generic manufacturers Teva Pharmaceuticals, Ranbaxy Pharmaceutical Industries Ltd., Actavis PLC, and Mylan Inc. In re: Actos Direct Purchaser Antitrust Litigation, No. 1:15-cv-03278 (S.D.N.Y. Oct. 8, 2019). The class complaint alleged that Takeda illegally conspired with the other defendants to delay generic competition for its blockbuster diabetes drug Actos through a series of patent settlement agreements, which granted the other defendants non-exclusive licenses to produce generic Actos at a future date prior to the expiration of Takeda’s patents. The Court dismissed these conspiracy claims, finding that plaintiffs’ “truly novel” theory for why the settlement agreements between Takeda and the other defendants violated the antitrust laws lacked “even a colorable basis” of support. The Court’s decision left in place one remaining claim against Takeda for monopolization.
Southern District of New York Dismisses Putative Antitrust Class Action Finding Plaintiffs Failed To Plead Defendants Transacted Business Of A “Substantial Character” In New York
On October 4, 2019, District Judge Edgardo Ramos of the United States District Court for the Southern District of New York dismissed a putative antitrust class action against certain defendants, foreign banks, and individuals for lack of personal jurisdiction and improper venue. In re SSA Bonds Antitrust Litig., No. 16 CIV. 3711 (ER) 2019 WL 4917608 (S.D.N.Y. Oct. 4, 2019). Plaintiffs alleged that the defendant financial institutions and certain employees operating as dealers in the U.S. dollar SSA bond market conspired to fix the price of SSA bonds in violation of Section 1 of the Sherman Act. Several dealer defendants (the “Foreign Dealer Defendants”) and four of their employees (the “Individual Defendants”) moved to dismiss for lack of personal jurisdiction and venue. The Court granted the motion, finding that plaintiffs had not satisfied the venue provision of the Clayton Act because plaintiffs failed to show that the Foreign Dealer Defendants transacted business of a “substantial character” in New York and failed to establish a nexus for purposes of personal jurisdiction “between the alleged business transactions in New York and the claims of this antitrust case.”
Seventh Circuit Closes Chapter On Creditor Price Fixing Claims Against Bankruptcy Software Provider
On September 5, 2019, the U.S. Court of Appeals for the Seventh Circuit affirmed a decision by the Northern District of Illinois dismissing Illinois state antitrust claims brought by a bankruptcy creditor against the bankruptcy trustee’s software services provider. McGarry & McGarry, LLC v. Bankr. Mgt. Sols., Inc., 18-2619, 2019 WL 4197546 (7th Cir. Sept. 5, 2019). Plaintiff alleged that defendant entered into a price-fixing conspiracy with other bankruptcy software providers. Judge Diane S. Sykes, writing for a unanimous panel, ruled that plaintiff lacked antitrust standing because it did not meaningfully participate in the relevant market for bankruptcy software services and, accordingly, its alleged injury was too remote from the claimed price-fixing violation.
Southern District Of New York Dismisses Claims In Mexican Government Bonds Antitrust Suit
On September 30, 2019, Judge Paul Oetken of the United States District Court for the Southern District of New York dismissed claims that defendants, a group of ten financial institutions and related entities, had conspired to manipulate the market for certain debt securities issued by the Mexican government. In re Mexican Government Bonds Antitrust Litigation, 18-CV-2830 (S.D.N.Y. Sept. 30, 2019). Plaintiffs, a group of pension funds, alleged that defendants rigged the auction process used by the Mexican government to issue bonds and conspired to manipulate the pricing of the bonds on the secondary market, in violation of Section 1 of the Sherman Act. According to plaintiffs, the conspiracy artificially depressed auction prices, artificially inflated secondary market prices, and fixed bid-ask spreads, resulting in harm to the pension funds in the United States.
European Union General Court Annuls Cartel Fine Based On European Commission’s Insufficient Reasoning
On September 24, 2019, the EU General Court annulled the cartel fine the European Commission had imposed on a financial institution for alleged anticompetitive conduct in the Euro interest rate derivatives market based on the Commission’s failure to adequately explain its reasoning in determining the amount of the fine. HSBC Holdings plc et al v. European Commission, Judgment in Case T-105-17. At the same time, the Court largely upheld the Commission’s decision on the underlying infringement and provided additional clarity on other key aspects of cartel rules, namely, ‘by object’ infringements, the evidentiary requirements to establish a single and continuous infringement (SCI), and the Commission’s obligation to uphold a non-settling party’s presumption of innocence in hybrid settlement procedures.
Northern District Of Illinois Finds Hockey Club’s Shot Against Hockey League Misses The Net
On September 26, 2019, Judge Manish S. Shah of the United States District Court for the Northern District of Illinois dismissed antitrust claims by plaintiff Reapers Hockey Association, Inc., an amateur hockey club, against Amateur Hockey Association Illinois (“AHAI”), an amateur hockey league, and its four constituent clubs (the “club defendants”), finding that plaintiff failed to state a claim under Sections 1 and 2 of the Sherman Act. Reapers Hockey Association, Inc. v. Amateur Hockey Association Illinois, Inc., et al., No. 19-cv-1302 (N.D. Ill. Sept. 26, 2019). Because it decided that plaintiff’s claims failed on the merits, it also denied plaintiff’s motion for a preliminary injunction.
Second Circuit Finds District Court Failed To Properly Consider Two-Sided Markets In Travel Platform Suit, Voids $15M Antitrust Verdict
On September 11, 2019, the United States Court of Appeals for the Second Circuit, in a panel consisting of Judges Robert D. Sack, Debra Ann Livingston and Denny Chin, affirmed in part, reversed in part and vacated in part a lower court’s decision in an antitrust action related to contracts for a travel technology platform. US Airways, Inc., for American v. Sabre Holdings Corporation, No. 17-960 (2d Cir. Sept. 11, 2019). The Second Circuit held that the district court had erred in failing to find the relevant market to be two-sided as a matter of law. The case was remanded for a new trial on the substantive question of whether certain contractual provisions in the business agreements between the parties were unlawful restraints of trade in violation of Sections 1 and 2 of the Sherman Act.
Seventh Circuit Allows Beer Conspiracy Allegations One More Shot
On September 5, 2019, Judge Kenneth Ripple, writing for a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit, partially reversed a lower court’s dismissal of antitrust claims alleging that two brewers conspired to restrict a competitor’s exports of beer to Ontario, Canada. Mountain Crest SRL, LLC v. Anheuser-Busch InBev SA/NV, No. 18-2327, 2019 WL 4198809 (7th Cir. Sept. 5, 2019). The Seventh Circuit held that agreements with a Canadian government-controlled entity (the Liquor Control Board of Ontario, or “LCBO”) were immune from antitrust scrutiny under the act of state doctrine. However, the Court held that claims of an alleged conspiracy between competitors to strong-arm the LCBO into entering into the agreements did not implicate the act of state doctrine and were improperly dismissed.
Second Circuit Affirms Dismissal Of Price Fixing Claims Against Oil Companies
On August 29, 2019, the United States Court of Appeals for the Second Circuit issued an Opinion and Summary Order affirming the dismissal of plaintiffs-appellant derivatives traders’ Sherman Act and Commodities Exchange Act claims against defendant-appellees oil companies. Prime International Trading, Ltd., et al. v. BP PLC, et al., No. 1:17-cv-2233 (2d Cir. 2019).
Second Circuit Reverses District Court’s Dismissal Of Metal Purchasers’ Antitrust Claims
On August 27, 2019, the Second Circuit Court of Appeals vacated a grant of summary judgment by the United States District Court for the Southern District of New York, which had dismissed the claims of a group of aluminum buyers on grounds they did not have standing in an antitrust suit alleging a conspiracy to artificially inflate aluminum prices. Judge Pierre N. Leval, writing for the panel, disagreed with the District Court’s dismissal, ruled that plaintiffs had adequately pleaded antitrust injury, and remanded the case for further proceedings. Eastman Kodak Co. v. Henry Bath LLC, 16-4230, 2019 WL 4018285 (2d Cir. Aug. 27, 2019).
District of Columbia Circuit Pulls The Brake On Class Certification Bid In Railroad Price-Fixing Suit
On August 16, 2019, the United States Court of Appeals for the District of Columbia Circuit affirmed a lower court’s decision to deny class certification in an antitrust action involving some of the country’s largest freight railroad companies. In Re: Rail Freight Fuel Surcharge Antitrust Litigation, MDL No. 1869, (D.C. Cir. Aug. 16, 2019). Plaintiffs alleged that defendants conspired to fix rate-based fuel surcharges in violation of Section 1 of the Sherman Act, Section 4 of the Clayton Act and various state laws. The panel, which consisted of Chief Judge Merrick Garland and Judges Judith Rogers and Gregory Katsas, held that class certification was inappropriate because plaintiffs’ regression analysis did not establish predominance.
Eastern District Of Michigan Slices No-Poach Antitrust Claims Against Pizza Franchise
On July 29, 2019, Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan dismissed, with prejudice, antitrust claims stemming from a fast-food pizza franchise’s use of “no-poach” hiring agreements in its standard franchise contracts. Judge Lawson determined that plaintiff, who did not attempt to advance a rule of reason antitrust claim, had not pled a viable per se or quick look antitrust violation. Moreover, plaintiff did not plausibly allege that the no-poach agreements caused him a cognizable antitrust injury. Ogden v. Little Caesar Enterprises, Inc., No. 18-12792, 2019 WL 3425266 (E.D. Mich. July 29, 2019).
D.C. Circuit Grounds Competition Challenge To FAA Regulations For Lack Of Standing
On August 2, 2019, the United States Court of Appeals for the District of Columbia Circuit dismissed an airline technology company’s petitions for review of regulations that petitioner alleged both restricted competition for airport flight slots and limited petitioner’s market opportunity for lack of standing. Exhaustless Inc. v. FAA, Case No. 18-1304 (D.C. Cir. 2019). The panel—Judges Karen Henderson, Sri Srinivasan and Cornelia Pillard—ruled that petitioner failed to show that it was injured or would incur injury from the Federal Aviation Association’s regulations limiting the number of flights out of LaGuardia and JFK Airports.
United States District Court For The Southern District Of California Certifies Big Tuna Classes
On July 30, 2019, U.S. District Court Judge Janis Sammartino of the Southern District of California certified three separate classes of tuna purchasers alleging price-fixing by producers of packaged tuna: (1) direct-purchaser plaintiffs, (2) commercial-food-preparer plaintiffs, and (3) end-payer plaintiffs. In re Packaged Seafood Products Antitrust Litigation, No. 15-MD-2670, July 30, 2019.
Central District Of California Gives Poor Review To Movie Rental Antitrust Claims
On July 17, 2019, Judge Dean D. Pregerson of the U.S. District Court for the Central District of California dismissed antitrust claims alleging that a major media and entertainment conglomerate unlawfully restrained trade in the nationwide market for rentals and sales of movies on DVD, Blu-ray and digital platforms. Judge Pregerson determined that plaintiff had not met its pleading burden; specifically, it did not adequately allege market power or anticompetitive effects in the relevant market. Redbox Automated Retail, LLC v. Buena Vista Home Entertainment, Inc., CV 18-00677-DDP (AGRx), 2019 WL 3237376 (C.D. Cal. July 17, 2019).
Seventh Circuit Extinguishes Antitrust Conspiracy Claims About Local Fire Alarm Laws
On July 15, 2019, the Seventh Circuit Court of Appeals dismissed claims alleging an antitrust conspiracy between a local municipality, an intergovernmental cooperation association and a private provider of commercial fire-alarm services. Alarm Detection Sys., Inc. v. Vill. of Schaumburg, No. 18-3316, 2019 WL 3071744 (7th Cir. July 15, 2019). The Court held that plaintiffs failed to plausibly plead the existence of an underlying agreement between defendants as required to plead an antitrust conspiracy claim.
Eastern District Of Pennsylvania Dismisses Claims Against Generic Drug Distributor In Multi-District Price-Fixing Suit
On June 26, 2019, Judge Cynthia M. Rufe of the Eastern District of Pennsylvania dismissed claims that McKesson Corporation and McKesson Medical Surgical, Inc. (collectively the “Company”) engaged in a conspiracy to fix prices of generic pharmaceuticals. Marion Diagnostic Center, LLC, et al. v. McKesson Corporation, et al., No. 16-MD-2724 (June 26, 2019). The Court held that the plaintiffs had not plausibly alleged that the Company’s conduct as a generic drug distributor was the result of an agreement with co-defendant generic drug manufacturers.
Companies With Effective Antitrust Compliance Programs Could Get Relief From Criminal Prosecution Under New DOJ Policy
The Antitrust Division of the U.S. Department of Justice (“Division”) finally will consider the existence of effective antirust compliance programs at the charging stage of criminal antitrust investigations, opening up the possibility that cartel participants could avoid prosecution even if they are not a first-in leniency applicant. The Division’s previous, and longstanding, approach had been not to consider compliance programs at the charging stage, on the theory that a compliance program is by definition ineffective if it failed to prevent a criminal violation of the antitrust laws.
Central District Of California Finds Clothing Rental Company’s Antitrust Claims All Style, No Substance
On June 24, 2019, Judge George H. Wu of the United States District Court for the Central District of California granted a defendant clothing rental company’s motion to dismiss antitrust claims brought under California’s Cartwright Act, as well as other state-law claims brought by a competing clothing rental company. FashionPass, Inc. v. Rent the Runway, Inc., No. 19-cv-3537-CG(JCx) (June 24, 2019). Plaintiff alleged that defendant interfered with and intentionally caused certain clothing suppliers to cancel their contracts with, and refuse to supply, plaintiff in violation of the Cartwright Act and California’s Unfair Competition Law (“UCL”). Plaintiff also brought tort claims for intentional interference with contract and intentional interference with prospective economic advantage based on the same alleged conduct. The Court dismissed the complaint in full, finding that plaintiff failed to plead a primary violation of the Cartwright Act, because the complaint did not identify any harm to the market or to competition generally, but instead pleaded only harm to plaintiff itself.
Plaintiffs’ No Poach Class Claims Run Off The Rails
On June 20, 2019, Judge Joy Flowers Conti of the Western District of Pennsylvania dismissed plaintiffs’ class claims that defendant employers colluded to suppress market wages by agreeing not to hire each other’s employees. The Court found that the complaint failed to adequately plead that all or nearly all employees in the proposed class were harmed by the alleged collusion. In re Railway Industry Employee No-Poach Antitrust Litigation, No. 18-798 (W.D. Pa. June 20, 2019). The Court, however, acknowledged plaintiffs had sufficiently pled the existence of an overarching conspiracy among defendants from 2014 to 2016 and individual agreements among each of the three defendants beginning at different times since 2009. Since the class claims were dismissed without prejudice, plaintiffs have the opportunity to remedy their class-related pleading defects.
California Superior Court Sends Healthcare Pricing Case To Trial
On June 18, 2019, California Superior Court Judge Anne-Christine Massullo issued an order denying Sutter Health’s motion for summary judgment on the alleged California antitrust claims concerning allegedly anticompetitive provisions in Sutter Health’s vendor contracts. See UFCW & Employers Benefit Trust, et al. v. Sutter Health, et al., CGC-14-538451 (Sup. Ct. Cal. 2014).
Northern District Of Georgia Rules On Antitrust State Action Immunity
On May 8, 2019, Judge William M. Ray II of the United States District Court for the Northern District of Georgia issued an order granting in part and denying in part defendants’ motion to dismiss. SmileDirectClub, LLC, v. Georgia Board of Dentistry, et al., No. 1:18-cv-02328-WMR (D.N.G. 2019). Plaintiff alleged that the Georgia Board of Dentistry (the “Board”) and its individual members (collectively, “defendants”) conspired to exclude non-dentists from participating in the market for orthodontic aligner treatment services in Georgia. The Court found that claims against the Board were barred by sovereign immunity, while claims against individual members of the Board were adequately pled and survived dismissal.
Eastern District Of Michigan Allows Sherman Act Suit Based On Employee No-Poach Agreement To Proceed
On May 24, 2019, Judge Victoria A. Roberts of the United States District Court for the Eastern District of Michigan denied defendant Domino’s Pizza Franchising LLC’s and other related Domino’s corporate entities’ motion to dismiss, finding that plaintiff, an employee of one of defendants’ franchisees, had adequately alleged a no-poach agreement in violation of Section 1 of the Sherman Act. Blanton v. Domino’s Pizza Franchising LLC, No. 18-13207 (E.D. Mich. May 24, 2019). The Court also found that plaintiff plausibly pleaded that defendants’ fraudulently concealed their conduct such that the Sherman Act’s four-year statute of limitations was tolled.
Second Circuit Revives Direct Injury Claims In Group Boycott Lawsuit
On May 10, 2019, the Second Circuit Court of Appeals, in a panel consisting of Judges John M. Walker, Jr., Dennis Jacobs, and Rosemary S. Pooler, affirmed in part and vacated in part a decision by Judge Brian M. Cogan of the United States District Court for the Eastern District of New York on antitrust standing. IQ Dental Supply, Inc. v. Henry Schein, Inc., 18-175-cv (2d Cir. May 10, 2019). The court agreed with Judge Cogan that plaintiff, IQ Dental Supply, Inc. (“IQ”), had failed to establish antitrust standing to challenge the alleged boycott of an online distribution portal, SourceOne, Inc. (“SourceOne”), which it used to distribute dental supplies to dental practices nationwide. However, the court found that IQ had pled sufficient facts to establish antitrust standing regarding a boycott of its own business and vacated the district court’s judgment.
In Case Against Major Technology Corporation, United States Supreme Court Holds Mobile Phone Owners Have Antitrust Standing To Bring Claims Against Operator Of Application Store
On May 13, 2019, the Supreme Court of the United States affirmed a Ninth Circuit decision reversing a California District Court’s dismissal of plaintiffs’ antitrust claims on grounds that plaintiffs could not sue defendant because they were not direct purchasers from defendant. The 5-4 majority opinion written by Justice Kavanaugh held that plaintiffs—owners of mobile phones produced and sold by defendant—were direct purchasers because they bought applications directly from defendant’s application store. Thus, as injured buyers under Section 4 of the Clayton Act, plaintiffs were not barred from suing defendant on claims that defendant monopolized the retail market for the sale of its phone applications and exploited this position to overcharge consumers. Apple Inc. v. Pepper, No. 17-204 (U.S. May 13, 2019).
Southern District Of California Denies Motion To Compel Attorney Communications In Price Fixing Action
On May 6, 2019, U.S. Magistrate Judge Mitchell D. Dembin of the United States District Court for the Southern District of California denied plaintiffs’ motions (i) to compel production of attorney-client communications and work product and (ii) to compel additional testimony in a multidistrict litigation over alleged price-fixing in the canned tuna industry. In re Packaged Seafood Prods. Antitrust Litig., No. 15-md-2670 (S.D. Cal. May 6, 2019). In denying the motions, the Court found that the general counsel for one of the defendants (the “Company”) did not waive privilege regarding analysis conducted by the Company’s outside counsel when he testified during his deposition that outside counsel had reviewed the discovery in the case and opined that there was no evidence of price-fixing other than regarding one product—5-ounce cans of tuna.CATEGORY: Price-Fixing
Second Circuit Rejects Bid To Revive Libor Antitrust Suit By Plaintiff Whose Bonds Were Not Tied To Libor
On April 30, 2019, the Second Circuit Court of Appeals, in a panel consisting of Judges Rosemary S. Pooler, Denny Chin, and Eric N. Vitaliano, affirmed a decision by Judge Paul G. Gardephe of the United States District Court for the Southern District of New York denying plaintiff’s request for leave to amend its complaint alleging that various banks conspired to manipulate LIBOR. 7 West 57th Street Realty Company, LLC v. Citigroup, Inc., 18-1102-cv (2d Cir. April 30, 2019). The Court agreed with Judge Gardephe that plaintiff, the successor in interest to a real estate developer, lacked antitrust standing to bring suit because it was not an efficient enforcer and that amending the complaint would be futile. The Court also agreed that plaintiff did not allege facts sufficient to state a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”).
Third Circuit Affirms Dismissal In Favor Of Defendant Internet Service Provider By Disconnecting Monopsony And Conspiracy Claims
On April 19, 2019, the Third Circuit Court of Appeals affirmed the Middle District of Pennsylvania’s dismissal of monopsony, antitrust conspiracy, and race discrimination claims by two plaintiff cable installer contractors against defendant, a dominant provider of internet services. Cable Line, Inc. v. Comcast Cable Communications of Pennsylvania, Inc., No. 18-2316 (3d Cir. Apr. 19, 2019). On the antitrust claims, the Third Circuit held that plaintiffs did not adequately allege facts to show that they suffered antitrust injury from the allegedly anticompetitive conduct, that defendant held monopsony power and used it to exclude other buyers of cable installation services, or that defendant had any agreement with the installers it chose as part of its RFP process to restrain trade in the cable installation market. The Third Circuit did, however, suggest that plaintiffs consider a retooled complaint alleging that defendant ties cable installation to its cable services, which may cause higher installation prices and reduce downstream competition.
District Of New Jersey Denies Summary Judgment On Robinson-Patman Rebates Claims
On April 1, 2019, Judge William J. Martini of the United States District Court for the District of New Jersey denied defendants’ motion for summary judgment in a Robinson-Patman Act suit. Marjam Supply Co. v. Firestone Building Products Co. LLC, et al., Case No. 2:11-cv-07119 (D.N.J. 2019). The Court found that plaintiff raised triable issues of fact regarding defendants’ selective offering of rebates, discounts, and other financing programs under the Robinson-Patman Act’s price discrimination provisions.
District Of New Jersey Denies Building Materials Manufacturer’s Motion For Summary Judgment In Alleged Price Discrimination Lawsuit
On April 1, 2019, Judge William J. Martini of the United States District Court for the District of New Jersey denied Firestone Building Products Company LLC’s motion for summary judgment on price discrimination claims brought by a building materials distributor. Marjam Supply Co. v. Firestone Bldg. Prod. Co., LLC, No. 2:11-cv-7119, 2019 WL 1451105 (D.N.J. Apr. 2, 2019). Plaintiff alleged that defendant, a manufacturer of building materials, offered its roofing products to several of plaintiff’s competitors (“Favored Distributors”) at terms more favorable than those offered to plaintiff through a variety of non-uniform rebate, discount and financing programs in violation of Sections 2(a) and 2(d) of the Robinson-Patman Act. Plaintiff claimed that due to the disparate terms offered by the manufacturer, Favored Distributors were able to offer the manufacturer’s products to plaintiff’s major customers at lower prices than plaintiff and that it lost significant business as a result.
United States District Court For The Northern District Of California Focuses On Information Sharing To Magnify Anticompetitive Conspiracy In Antitrust Suit Against Telescope Manufacturers
On March 29, 2019, Judge Edward J. Davila of the U.S. District Court for the Northern District of California denied a motion to dismiss, finding that plaintiff Orion Telescopes & Binoculars (“Orion”) had sufficiently pled that defendants Ningbo Sunny Electronic Co., Ltd. (“Ningbo”) and Celestron, LLC (“Celestron”) had conspired to divide the market for low- to medium-end telescopes and block a competing manufacturer’s acquisition that would have enabled expansion and broader supply-side competition. Optronic Technologies, Inc., v. Ningbo Sunny Electronic Co., Ltd., No. 16-CV-6370 (N.D. Cal. Mar. 29, 2019). Judge Davila cited plaintiff’s specific allegations of: (a) a division among competitors of the low-end (to Ningbo) and high-end (to Celestron) telescope markets (facilitated in part by a transfer of intellectual property to Ningbo); and (b) Celestron’s advance knowledge of Ningbo’s interest in the merger. Celestron settled prior to the litigation, but Orion and Ningbo will continue into discovery.
United States District Court For The District Of Delaware Dismisses Allegations Of Anticompetitive Drone Pricing
On March 18, 2019, Judge Leonard P. Stark of the U.S. District Court for the District of Delaware dismissed allegations of predatory pricing in the “prosumer” drones market by DJI Technology Co., Ltd. and DJI Europe B.V. (collectively “DJI”). SZ DJI Technology Co., Ltd. v. Autel Robotics USA LLC, No. 16-706-LPS (D. Del. Mar. 18, 2019). The Court ruled in favor of the DJI plaintiffs, who were defendants in the antitrust counterclaims in the suit, finding that defendants Autel Robotics USA LLC and Autel Aerial Technology Co., Ltd. (collectively “Autel”) did not allege sufficient facts for a plausible predatory pricing claim. In particular, the Court found that Autel failed to show that DJI’s prices were below cost.
Northern District Of California Grants NCAA Athletes Partial Victory In Antitrust Challenge To NCAA Rules
On March 8, 2019, after a bench trial, Judge Claudia Wilkin of the United States District Court for the Northern District of California found that the NCAA’s restrictions on the amount of grants-in-aid and other benefits that universities can provide to student-athletes constitute anticompetitive restraints of trade. In re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, No. 4:14-md-02541-CW (N.D. Cal. Mar. 8, 2019). Based on this finding, the Court abrogated the NCAA’s limits on “education-related benefits” that its member colleges may provide the student-athletes. However, the Court did not eliminate all restrictions on the benefits that schools may provide to athletes. Instead, using a “less restrictive alternatives” analysis, the Court permitted the NCAA to continue to limit non-education related benefits and compensation, as well as cash payments, to student-athletes.
Southern District Of New York Dismisses CDOR Benchmark Manipulation Complaint In Its Entirety
On March 14, 2019, Judge Analisa Torres of the United States District Court for the Southern District of New York granted defendants’ motion to dismiss a complaint alleging they improperly manipulated the Canadian Dollar Offered Rate (“CDOR”) benchmark. Fire & Police Pension Association of Colorado v. Bank of Montreal, et al., Case No. 1:18-cv-00342 (S.D.N.Y Mar. 14, 2019).
D.C. Circuit Holds That DOJ Failed To Prove AT&T/Time Warner Merger Is Anticompetitive
On February 26, 2019, a panel of the D.C. Circuit Court of Appeals affirmed the district court’s denial of the government’s request for a permanent injunction against the merger of AT&T and Time Warner. The opinion by Judge Judith Rodgers, joined by Judges Robert Wilkins and David Sentelle, rejected the government’s argument that the district court misunderstood and misapplied economic principles and erroneously disregarded testimony by key government witnesses. United States v. AT&T, Inc., Docket No. 1:17-cv-02511 (D.C. Cir. 2019).
Reversing Prior Order, Utah District Court Holds Per Se Rule Applies To Customer Allocation Agreement
On February 21, 2019, Judge David Sam of the U.S. District Court for the District of Utah reversed course and found that a per se standard applies to a market allocation agreement among competitors in the heir location services market. Judge Sam initially found that the more lenient rule of reason standard should apply. However, following a recent Tenth Circuit ruling, Judge Sam held it is the form of the agreement—not the type of industry—that compels the appropriate standard of review. United States of America, v. Kemp & Associates, Inc. and Daniel J. Mannix, No. 2:16CR403 DS, 2019 WL 763796 (D. Utah Feb. 21, 2019).
Delaware District Court Dismisses Antitrust Suit Against Lab Testing Company Alleging Conspiracy To Exclude Smaller Lab From Market
On February 14, 2019, Judge Maryellen Noreika of the United States District Court for the District of Delaware dismissed a complaint alleging violations of Sections 1 and 2 of the Sherman Act. Prescient Medicine Holdings, LLC v. Laboratory Corporation of America Holdings et al, No. 1:18-cv-00600 (D. Del. Feb 14. 2019). The complaint was filed by Prescient Medicine Holdings, LLC, a provider of laboratory testing services. Plaintiff alleged that an agreement between a competitor laboratory testing service—Laboratory Corporation of America and Laboratory Corporation of America Holdings (“LabCorp”)—and a managed care organization—AmeriHealth, Inc. and AmeriHealth Caritas Delaware Inc. (“AmeriHealth”) was a collusive scheme to monopolize the in-network Medicaid market and exclude plaintiff from that market. Judge Noreika held that plaintiff failed to adequately plead antitrust standing and failed to define a relevant market.
Ninth Circuit Reinstates $53 Million Jury Award Against Supplier In “Refusal to Deal” Monopolization Action
On February 8, 2019, a three-judge panel of the United States Court of Appeals for the Ninth Circuit reversed the district court and reinstated a jury verdict that found a cigar manufacturer liable for attempted monopolization under Section Two of the Sherman Act for various actions it took or refused to take in connection a contract manufacturing relationship with a competitor. Trendsettah USA, Inc. v. Swisher Int’l, Inc., No. 16-56823 (9th Cir. Feb. 8, 2019). The decision is notable in allowing the imposition of Sherman Act liability for conduct that amounted largely to alleged breaches of, and a refusal to renew, a supply contract, and illustrates that potential claims under Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), still pose litigation risks for firms with significant market shares that terminate profitable relationships with their competitors.
The Eastern District Of Michigan Holds That An Arbitration Clause Does Not Apply To Direct Purchasers In A Private Suit Alleging Price-Fixing
On January 29, 2019, the Honorable Judge Marianne O. Battani of the United States District Court for the Eastern District of Michigan denied without a hearing Defendant KYB Corporation’s and KYB America’s (collectively, the “Company”) motion to dismiss all federal antitrust claims because those claims were subject to an arbitration clause. In re Shock Absorbers, Master File No. 12-md-02311 (E.D. Mich. Jan. 29, 2019). In so finding, the Court denied the Company’s 30(b)(1) motion and concluded that the Court had subject matter jurisdiction.
Department Of Justice Seeks To Intervene In No-Poach Class Action To Counter Arguments That Such Agreements Are Per Se Illegal
On January 25, 2019, the Justice Department’s Antitrust Division filed a Notice of Intent to File a Statement of Interest in Myrriah Richmond et al. v. Bergey Pullman Inc., et al., No. 2:18-cv-00246, in the United States District Court for the Eastern District of Washington. The Notice follows a barrage of settlements between fast-food chains and state antitrust enforcers involving the chains’ “no-poach” agreements—that is, agreements between a franchisor and franchisees that restrict the hiring of one franchisee’s employees by another franchisee. The Justice Department’s decision to involve itself in Myrriah Richmond is significant. By emphasizing—as its Notice did—that such franchisor-franchisee no-poach agreements are “vertical restraints” subject to the rule-of-reason (rather than illegal per se, or subject to only a “quick look” analysis of legality), the Justice Department provides analytic clarity and useful guidance as courts address the growing number of actions challenging different variations of no-poach agreements in different factual scenarios.