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  • DOJ Says Agreement Not To Recruit And To Suppress Wages In Las Vegas Case Is Clearly Illegal
     
    10/13/2021

    On October 1, 2021, the U.S. Department of Justice (“DOJ”) filed a response in Nevada federal court opposing a motion to dismiss from defendants VDA OC LLC and its former regional manager Ryan Hee, in a case in which they are charged with agreeing with another unnamed contractor not to recruit or hire from one another, and to suppress wages for Las Vegas school nurses.  The DOJ stated that this is a simple case arguing that agreeing to allocate nurses is market division, and fixing nurses wages is price fixing, both of which have long been considered per se unlawful under the antitrust laws.
  • Ninth Circuit Reverses Certification Of A Nationwide Indirect Purchaser Class Due To State Law Differences And Its Prior Decision In FTC v. Qualcomm
     
    10/06/2021

    On September 29, 2021, the United States Court of Appeals for the Ninth Circuit reversed a district court’s order certifying a nationwide class of up to 250 million people.  The Ninth Circuit concluded that a common issue of law does not predominate because the laws of other several states apply, not just California’s Cartwright Act and Unfair Competition Law.  In re Qualcomm Antitrust Litig., No. 19-15159, 2021 WL 4448713 (9th Cir. Sept. 29, 2021).  The indirect purchaser plaintiffs are consumers who allege that Qualcomm Incorporated (“Qualcomm”) violated federal antitrust laws and California’s Cartwright Act and Unfair Competition Law by engaging in certain corporate policies regarding their licensing of standard essential patents (“SEPs”) and related sales of modem chips.  The Ninth Circuit held that California’s choice of law rules precluded class certification because states without an Illinois Brick repealer statute, which often authorize indirect purchasers to bring antitrust damages suits, “have a clear interest in applying their laws to class members” and to apply only California law would “allow[] California to set antitrust enforcement policy for the entire country.”
  • Northern District Of California Finds That Antitrust Claims Against Technology Platform Fail While California’s Unfair Competition Law Supports Limited Injunction
     
    09/21/2021

    On September 10, 2021, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California issued her post-trial decision in Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR (N. D. Cal. 2021).  Plaintiff claimed that defendant’s developer policies violated Sections 1 and 2 of the Sherman Act and the Cartwright Act, California’s analogue to the Sherman Act, as well as California’s Unfair Competition Law (“UCL”).  The Court, in a 185-page opinion, found that plaintiff did not meet its burden to show that defendant’s policies violated the antitrust laws and denied plaintiff the broad injunction that would have required substantial changes to defendant’s App Store business.  However, the Court held that plaintiff was entitled to a limited injunction under the UCL as to defendant’s anti-steering restrictions.  The Court also granted contract damages for defendant’s counterclaims against plaintiff.
  • Eastern District Of Virginia Certifies Class Of Cholesterol Drug End Payors
     
    09/09/2021

    On August 20, 2021, Judge Rebecca Smith of the United States District Court for the Eastern District of Virginia certified a class of end-payor plaintiffs (“EPPs”) alleging that defendant pharmaceutical companies (“defendants”) entered into a reverse payment agreement that delayed generic competition to the branded cholesterol drug Zetia in violation of Section 1 of the Sherman Act.  In re Zetia (Ezetimibe) Antitrust Litig., MDL No. 2:18-md-2836 (E. D. Va. 2021).  This case is part of a multidistrict litigation against defendants, and Judge Smith’s certification decision was in the face of a Fourth Circuit decision two weeks prior that vacated her decision to certify a different class of plaintiffs.
  • Ninth Circuit Rejects Sherman Act Challenge To Non-Solicitation Provision In Contract Between Traveling Nurse Staffing Firms
     
    08/31/2021

    On July 19, 2021, the United State Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of defendant/appellee healthcare staffing firm, holding that the non-solicitation provision in defendant’s contract with plaintiff/appellant to provide traveling nurse services did not amount to a naked restraint on trade because it was ancillary to the overall pro-competitive agreement between the parties and plaintiff had not shown harm to competition.  Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., No. 20-55679, 2021 WL 3671384 (9th Cir. Aug. 19, 2021).
  • Northern District Of California Finds Exclusive Real Estate Service Is Improper Plaintiff To Enforce Antitrust Claims Against Competitor Trade Association
     
    08/26/2021

    On August 16, 2021, Judge Vince Chhabria of the United States District Court for the Northern District of California dismissed, with prejudice, a complaint alleging that the dominant national real estate listing service violated Section 1 of the Sherman Act by prohibiting realtors from marketing a property to the public unless they also list the property on the service.  Top Agent Network, Inc. v. National Ass’n of Realtors, No. 20-cv-03198-VC (N.D. Cal. Aug. 16, 2021).  The Court found that, although plaintiff—a competing real estate listing service—may have alleged an antitrust violation, plaintiff did not have antitrust standing to bring the claim.
  • Second Circuit Takes A Second Look At Chinese Vitamin C Price-fixing Case And Again Affirms Dismissal
     
    08/19/2021

    On August 10, 2021, the Second Circuit, in a 2-1 decision,  affirmed the dismissal—for the second time—of price-fixing claims against a pair of Chinese vitamin C exporters, after the Supreme Court had remanded it for further consideration.  Animal Science Prods., et al., v. Hebei Welcome Pharma. Co. Ltd., et al., 13-4791-cv (2nd Cir. Aug 10, 2021).  Following the Supreme Court’s directive to “carefully consider but not conclusively defer” to submissions from the Chinese Ministry of Commerce, a three-judge panel of the Second Circuit agreed that the case should, nevertheless, still be dismissed on international comity grounds.  This decision—involving the Chinese government’s first appearance in a U.S. court—was unusual for an antitrust case in that there was no real dispute that the alleged anticompetitive conduct occurred.  Instead, the question centered on “whether Chinese law required the Chinese sellers’ conduct.”
  • Southern District Of Illinois Refuses To Certify A Class Alleging That Jimmy John’s No-Poach Clauses Suppressed Wages
     
    08/10/2021

    On July 23, 2021, the United States District Court for the Southern District of Illinois denied a named plaintiff’s motion for class certification against Defendants Jimmy John’s Franchise, LLC and Jimmy John’s Enterprises, LLC on the basis that he did not meet the factors required to certify a class—among which included his failure to show that his claims where typical of the claims of the potential class members he purported to represent.  Conrad v. Jimmy John’s Franchise, LLC, No. 18-CV-00133-NJR (S.D. Ill. July 23, 2021).
  • Court Upholds Narrow Interpretation Of “Sham Suit” Exception To Noerr-Pennington  Doctrine
     
    08/03/2021

    On July 26, 2021, Chief Judge Freda L. Wolfson of the United States District Court for the District of New Jersey dismissed “sham litigation” monopolization counterclaims against a pharmaceutical patent holder, finding that the patent holder conducted a reasonable investigation before filing the underlying infringement suit and did not unreasonably delay the proceedings before determining that the counterclaim plaintiff’s generic substitute for the patent holder’s drug did not infringe its patent and voluntarily dismissing its infringement claims.  Takeda Pharmaceutical Co. Ltd., et al. v. Zydus Pharmaceuticals (USA) Inc., et al., No. CV 18-1994 (FLW), 2021 WL 3144897 (D.N.J. July 26, 2021).  Because the generic manufacturer could not establish that the patent holder’s infringement lawsuit was either objectively or subjectively baseless, the Court granted summary judgment for the patent holder.
  • Delaware District Court Dismisses App Developer’s Monopoly Claims Against Tech Giant
     
    07/28/2021

    On July 9, 2021, Judge Leonard P. Stark of the United States District Court for the District of Delaware granted defendant’s motion to dismiss antitrust claims brought by an application (“app”) developer against one of the world’s largest technology companies for failing to adequately allege that requiring apps to offer a defendant-specific log-in function harmed competition.  Blix Inc. v. Apple, Inc., C.A. No. 19-1869-LPS (D. Del. July 9, 2021).
  • Fast-Food Franchise Cases Hash Out Standard Of Review For Labor Market Restrictions
     
    07/20/2021

    The parties in two separate cases involving labor market restrictions submitted supplemental briefing within days of one another following the Supreme Court’s ruling in the much-anticipated NCAA v. Alston case on June 21, 2021.  The unanimous opinion, written by Justice Neil Gorsuch with a full concurrence by Justice Brett Kavanaugh, was levied to support arguments by both sets of defendants and plaintiffs on the appropriate standard of review in each of their cases.  This battle is being fought in a broader context of increased activity by the Department of Justice in pursuing “no-poach” agreements between employers, and President Biden’s July 9th Executive Order, which specifically addressed labor non-compete agreements.
  • Western District Of Pennsylvania Dismisses Antitrust Action For Failure To Adequately Define A Product Market
     
    07/13/2021

    On June 29, 2021, the United States District Court for the Western District of Pennsylvania dismissed Multiple Energy Technologies, LLC’s (“Plaintiff”) Second Amended Complaint against Under Armour, Inc. (“Defendant”) for failure to adequately plead a relevant product market and granted Plaintiff leave to amend its complaint.  Multiple Energy Techs., LLC v. Under Armour, Inc., No. 2:20-CV-664-NR, 2021 WL 2661827 (W.D. Pa. June 29, 2021).  The Court found that a sufficient product market definition requires pleading facts that allege:  (1) high elasticity among all products within the alleged market; and (2) low elasticity between products within the alleged market and products outside the alleged market.
  • Dual Facebook Enforcement Actions Dismissed In District Of Columbia
     
    07/07/2021

    On June 28, 2021, Judge James E. Boasberg of the United States District Court for the District of Columbia dismissed dual enforcement actions brought by the Federal Trade Commission (“FTC”) and the attorneys general of 46 states and the District of Columbia (the “state enforcers”) against Facebook, Inc. (“Facebook”).  See FTC v. Facebook, Inc., No. 1:20-cv-03590-JEB (D.D.C. June 28, 2021), ECF 73 (the “FTC Action”); State of New York et al. v. Facebook, Inc., No. 1:20-cv-03589-JEB (D.D.C. June 28, 2021), ECF 137 (the “States’ Action”).
  • Supreme Court Sustains Injunction Against NCAA Rules Limiting Education-Related Benefits Received By Student Athletes
     
    06/29/2021

    On June 21, 2021, the United States Supreme Court issued a decision in a long running and closely watched dispute between the National Collegiate Athletic Association, along with 11 Division I conferences, (together, the “NCAA” or “Defendants”) and a class of current and former Division I football and basketball players claiming that NCAA restrictions on their compensation violated Section 1 of the Sherman Act (together, the “student athletes” or “Plaintiffs”).  NCAA v. Alston, et al., No. 20–512, 594 U.S. ___ (2021).  The Court’s unanimous decision, written by Justice Neil Gorsuch, upheld a district court order enjoining NCAA limits placed on education-related benefits provided by member schools to student athletes and permitting limits on compensation and benefits related to athletic performance.
  • Northern District Of Illinois Terminates Claims Against Bank In Antitrust Suit
     
    06/22/2021

    On June 1, 2021, Judge Thomas Durkin of the United States District Court for the Northern District of Illinois dismissed a complaint alleging that a bank conspired with other defendants in the poultry industry in violation of Section 1 of the Sherman Act.  In re Broilers Chicken Antitrust Litig., 16-8637 (N.D. Ill. June 1, 2021).
  • Illinois District Court Finds Chicken Purchasers’ Conspiracy Claims Against Bank Are For The Birds
     
    06/15/2021

    On June 1, 2021, Judge Thomas M.  Durkin of the United States District Court for the Northern District of Illinois granted defendant’s motion to dismiss price-fixing claims brought by a group of chicken buyers against a large bank operating in the agribusiness industry.  In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D.  Ill.  June 1, 2021).
  • D.C. Circuit Vacates FAA Decision That Failed To Consider Effect On Competition
     
    06/08/2021

    On May 21, 2021, a panel of the United States Court of Appeals for the D.C. Circuit vacated a decision by the Federal Aviation Administration (“FAA”) to retire takeoff and landing “slots” forfeited by Southwest Airlines (“Southwest”) at New Jersey’s Newark Liberty Airport (“EWR”), finding that, by failing to consider what impact the move would have on airline competition at the airport, the FAA had acted arbitrary and capricious and without substantial evidence, in violation of the federal Administrative Procedures Act (“APA”).  Judge Douglas H. Ginsburg wrote the opinion, which was joined by Judges Karen L. Henderson and Justin R. Walker.  The case is Spirit Airlines, Inc. v. United States Department of Transportation, 19-1248 (D.C. Cir., May 21, 2021).
  • Fifth Circuit Finds Sherman Act Conspiracy Claims Survive Statute Of Limitations Challenge
     
    06/02/2021

    On May 18, 2021, the United States Court of Appeals for the Fifth Circuit reversed a district court’s dismissal of claims by the Academy of Allergy & Asthma in Primary Care and United Allergy Services (“plaintiffs”) that Quest Diagnostics (“Quest”) violated §§ 1 and 2 of the Sherman Act.  Acad. of Allergy & Asthma in Primary Care v. Quest Diagnostics, Inc., No. 20-50179, 2021 WL 1976666 (5th Cir. May 18, 2021).  The district court originally dismissed the claims because Quest did not commit any overt acts within the four-year statute of limitations period.  On appeal, the Court found that an email from Quest’s co-conspirator referencing a meeting with a Quest employee provided sufficient evidence of an overt act to extend the statute of limitations period.
  • Monopolization Complaint Dismissed For Failure To Adequately Define The Relevant Product Market Or Plead Anticompetitive Conduct
     
    05/26/2021

    On May 13, 2021, U.S. District Judge Beth Labson Freeman of the Northern District of California dismissed, with leave, to amend a monopolization claim against Google and its parent company for failure to properly define the relevant product market or to adequately plead anticompetitive conduct.  In re Google Digital Advertising Antitrust Litigation, No. 20-CV-03556-BLF (N.D. Cal. May 13, 2021).
  • Impax Reaches Impasse As Fifth Circuit Denies Review Of FTC’s First Post-Actavis Reverse Payment Ruling
     
    05/18/2021

    On April 13, 2021, the United States Court of Appeals for the Fifth Circuit, in an opinion authored by Judge Gregg Costa, affirmed the Federal Trade Commission’s (“FTC”) order finding a reverse payment settlement between a branded drug manufacturer and a generic drug manufacturer violated the FTC Act and the Sherman Act.  Impax Laboratories, Inc. v. Federal Trade Commission, No. 19-60394 (5th Cir. 2021).  The Court upheld the FTC administrative court’s finding that the settlement agreement was anticompetitive because it “replaced the ‘possibility of competition with the certainty of none.’”
  • Northern District Of California Shuts Down App Developers’ Antitrust Suit
     
    05/11/2021

    On April 26, 2021, Judge Beth Labson Freeman of the United States District Court for the Northern District of California dismissed a complaint alleging that Facebook violated Section 2 of the Sherman Act by removing certain application interfaces that plaintiffs relied on for their mobile applications.  Reveal Chat Holdco LLC, et al. v. Facebook, 5:20-cv-00363 (N.D. Cal. Apr. 26, 2021).  Plaintiffs alleged that the application programming interfaces (“APIs”) were central to their ability to function and that the removal of these APIs by Facebook in 2015 was part of a scheme to harm applications that were competitive or potentially competitive with Facebook.  In dismissing the complaint for a second time and with prejudice, the Court concluded that plaintiffs’ “entire theory of liability is based on completed acts by Facebook beyond the limitations period” and that their claims were therefore time-barred.
  • U.S. Supreme Court Unanimously Narrows The FTC’s Enforcement Powers
     
    05/04/2021

    On April 22, 2021, the U.S. Supreme Court abated the Federal Trade Commission’s (“FTC”) restitution power in a unanimous opinion delivered by Justice Stephen Breyer.  AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct. 1341 (2021).  Notably, the Court declared that the language of Section 13(b) of the FTC Act does not empower the FTC to obtain court-ordered equitable monetary relief such as restitution or disgorgement.  In so doing, the Court resolved a circuit split on the issue and reversed the Ninth Circuit’s decision.
  • FTC’s Cancer Detection Antitrust Suit Transferred To California Southern District
     
    04/28/2021

    On April 20, 2021, the United States District Court for the District of Columbia granted defendants’ motion to transfer a motion for preliminary injunction brought by the Federal Trade Commission (“FTC”) alleging that defendants’ plans to enter into a merger agreement violated Section 5 of the FTC Act and Section 7 of the Clayton Act.  Federal Trade Commission v. Illumina, et al., No. 21-873 (D.D.C. 2021).  The Court found that the U.S. District Court for the Southern District of California was a more appropriate venue for litigation of the case on the basis that it would be easier for most of the witnesses to get to that district, among other factors.  Preliminary injunction hearings are currently set for August 24, 2021. 
  • California District Court Rules Antitrust Claims Against Hollywood Foreign Press Don’t Make Final Cut
     
    04/20/2021

    On March 23, 2021, Judge Stanley Blumenfeld, Jr. of the United States District Court for the Central District of California dismissed amended antitrust claims brought by two entertainment journalists against the Hollywood Foreign Press Association (“HFPA”).  Flaa v. Hollywood Foreign Press Ass’n, No. 2:20-cv-06974-SB (C.D. Cal. Mar. 23, 2021).
  • Ninth Circuit Reverses Class Certification Based On District Court’s Failure To Resolve Factual Issues Relating To Uninjured Class Members
     
    04/13/2021

    On April 6, 2021, the United States Court of Appeals for the Ninth Circuit vacated a district court order certifying three classes in a multi-district antitrust case alleging a price-fixing conspiracy by producers of packaged tuna, finding that the district court erred in determining that plaintiffs had satisfied to the predominance requirement of Federal Rule of Civil Procedure 23(b)(3).  Olean Wholesale Grocery Coop v. Bumble Bee Foods, No. 19-56514 (9th Cir. Apr. 6, 2021).  Specifically, the Court concluded that the district court abused its discretion in declining to resolve whether plaintiffs’ proposed use of statistical evidence to establish classwide impact swept a substantial number of uninjured purchasers into the putative class.  A class cannot be certified, the Court held, when it contains more than a “de minimis” number of uninjured purchasers. 
  • Southern District Of New York Dismisses Antitrust Claims In U.S. Treasury Securities Action
     
    04/06/2021

    On March 31, 2021, Judge Paul Gardephe of the United States District Court for the Southern District of New York granted defendants’ motions to dismiss antitrust claims alleging separate purported conspiracies to suppress competition in the trading of U.S. Treasury securities and to boycott competitive platforms for the trading of such securities.  In re Treasury Sec. Auction Antitrust Litig., No. 1:15-md-02673-PGG (S.D.N.Y. Mar. 31, 2021).  In so doing, the Court found that neither “statistical analyses” based on averages of all market participants’ conduct nor reports of government investigations was sufficient to plead the involvement in a conspiracy by an individual defendant that is required to overcome a motion to dismiss.   
     
    CATEGORY :
  • NCAA Athletes’ Case Goes To Highest Court In The Land:  The Supreme Court Hears Argument On Sherman Act Challenge To NCAA Eligibility Rules On Compensation For Student-Athletes
     
    04/06/2021

    On March 31, 2021, the United States Supreme Court heard oral argument in the consolidated cases National Collegiate Athletic Associate v. Alston (No. 20-520) and American Athletic Conference v. Alston (No. 20-512).  These cases were previously covered as part of our preview of the current Supreme Court term.  Plaintiffs below – NCAA student-athletes – challenged the NCAA’s limits on education-related benefits to student athletes as unreasonable restraints on competition for the student-athletes’ services that violated Section One of the Sherman Act.  After a lengthy trial, the district court agreed and entered an injunction in favor of plaintiffs.  The Ninth Circuit affirmed, finding that the district court had properly applied the rule of reason to the challenged rules, that the rules had significant anticompetitive effects, and that plaintiffs had established that less restrictive alternatives to the existing rules were viable in that they were “virtually as effective” in achieving the procompetitive purposes of the joint venture.  The case-specific issue presented to the Supreme Court is whether the Ninth Circuit erred in affirming the district court’s judgment that the NCAA eligibility rules regarding compensation of student-athletes violated the Sherman Act.  But the case may have broader implications in how courts analyze a joint venture’s restraints on competition under the rule of reason, including how courts should evaluate claims that a defendant joint venture could have or should have used less restrictive means to accomplish its procompetitive goal.
     
  • Southern District Of New York Dismisses Competitor’s Sherman Act Claims Against Fintech Company For Lack Of Antitrust Standing
     
    04/06/2021

    On March 31, 2021, Judge Mary Kay Vyskocil of the United States District Court for the Southern District of New York dismissed a ten-count complaint alleging that defendant financial technology companies, Advent Software Inc. and its parent company, SS&C Technologies Holdings Inc. (collectively “defendant”), violated, inter alia, Sections 1 and 2 of the Sherman Act by refusing to renew a software license with one of its competitors and engaging in so-called “exclusive dealing arrangements” that allegedly foreclosed the competitor from the marketplace.  Arcesium, LLC v. Advent Software, Inc., 1:20-cv-04389 (MKV) (S.D.N.Y. Mar. 31, 2021).  The Court found that plaintiff Arcesium LLC (“plaintiff”), a technology company that licensed defendant’s portfolio accounting software, but competed with them in providing related “post-trade solutions” (technology and services used to provide middle- and back-office support for investment funds and fund administrators), failed to adequately plead antitrust standing. 
     
  • New Legislation In New York Addresses Expected Discontinuance Of LIBOR
     
    03/31/2021

    On March 25, 2021, the New York State Legislature addressed the expected discontinuance of LIBOR by establishing that New York law-governed contracts without LIBOR fallback provisions will be deemed to use the replacement rate recommended by the Alternative Reference Rates Committee (ARRC).  The legislation will take effect immediately once signed into law by Governor Cuomo, which is expected to take place in the coming days.
     
    CATEGORY :
  • Second Circuit Rejects The “Nullity Doctrine” In Benchmarking Antitrust Case
     
    03/23/2021

    On March 17, 2021, the Second Circuit vacated a district court’s dismissal of a putative class antitrust action, holding that the pre-lawsuit dissolution of the named plaintiffs does not render the action a legal nullity and deprive the court of subject matter jurisdiction, provided the assignee of their claims had standing to prosecute the claims as the real party in interest when the suit was filed and joins or substitutes into the action within a reasonable time.  Fund Liquidation Holdings LLC v. Bank of Am. Corp., 2021 WL 1010596 (2d Cir. Mar. 17, 2021).
     
  • Maryland District Court Refuses To Send Poultry Workers’ Claims To Chopping Block In Wage Fixing Class Action
     
    03/23/2021

    On March 10, 2021, Judge Stephanie Gallagher of the United States District Court for the District of Maryland denied defendants’ motions to dismiss antitrust claims brought by a putative class of poultry workers asserting that poultry processing companies unlawfully exchanged compensation data and conspired to fix and depress employee wages.  Jien v. Perdue Farms, Inc., No. 1:19-CV-2521-SAG (D. Md. March 10, 2021).
     
  • Third Circuit Dismisses Sherman Act And RICO Claims Against Certification Board
     
    03/09/2021

    On February 25, 2021, the United States Court of Appeals for the Third Circuit affirmed a district court’s ruling that the American Board of Internal Medicine (“defendant”) did not violate Sections 1 and 2 of the Sherman Act or the Racketeer Influenced and Corrupt Organizations Act (“RICO”).  Kenney v. Am. Bd. of Internal Med., No. 20-1007, 2021 WL 732715 (3d Cir. Feb. 25, 2021).  Among other things, the Third Circuit found that a group of physicians (“plaintiffs”) did not plausibly allege that defendant impermissibly tied together initial physician certifications with the regular renewals of the same certifications.  These regular renewals are known as maintenance of certification (“MOC”).  The Third Circuit also found that plaintiffs did not plausibly allege that defendant utilized monopoly power to require plaintiffs to purchase MOCs.
     
  • Fourth Circuit Affirms Lower Court’s First Of Its Kind Divesture Order In Private Challenge To Merger
     
    03/02/2021

    On February 18, 2021, the Fourth Circuit affirmed in relevant part a district court’s divestiture order in a Clayton Act challenge to a consummated merger by a private party.  Steves & Sons, Inc. v. JELD-WEN, Inc., No. 19-1397, 2021 WL 630521 (4th Cir. Feb. 18, 2021).  The divestiture order appears to be the first time that an appellate court has affirmed a post-consummation divestiture order of an acquired company in response to a Clayton Act challenge to a merger or acquisition by a private party.
     
  • District Court Grants Summary Judgment Against Indirect Purchasers In Aluminum Price-Fixing Case
     
    02/23/2021

    On February 17, 2021, Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York granted summary judgment to defendants that traded commodities and derivatives, and defendants that owned and operated warehouses, in a consolidated action, dismissing claims by aluminum purchasers.  In Re Aluminum Warehousing Antitrust Litigation, 13 MD 2481 (PAE) (S.D.N.Y.  Feb. 17, 2021).  Plaintiffs alleged defendants had conspired to fix the price of aluminum in a distribution channel in which plaintiffs (with one exception) did not participate, but that the conspiracy had the incidental effect of inflating the cost of plaintiffs’ contracts with third parties, most notably aluminum producers.  Plaintiffs asserted that even though they did not participate directly in the allegedly restrained distribution channel, they could pursue a claim that defendants violated Section 1 of the Sherman Act.  The Court held that plaintiffs were not efficient enforcers, and therefore lacked “antitrust standing” to bring the claims, because they did not contract directly with defendants, their claimed harms were speculative, and their claims risked exposing defendants to duplicative liability.
     
  • Central District Of California Forecloses Realtors’ Antitrust Suit
     
    02/18/2021

    On February 3, 2021, Judge John W. Holcomb of the United States District Court for the Central District of California dismissed a complaint alleging that real estate listing services conspired with a national realtors association to exclude a competitor from the market.  The PLS.com, LLC v. The National Association of Realtors, et al., 2:20-cv-04790 (C.D. Ca.  Feb. 3, 2021).  Plaintiff, a listing service for off-market properties, alleged that three real estate listing services—Bright MLS, Inc. (“BrightMLS”), Midwest Real Estate Data, LLC (“Midwest RED”), and California Regional Multiple Listing Service, Inc. (“Cal Regional MLS”)—conspired with The National Association of Realtors (“NAR”) to eliminate them from the market in violation of Section 1 of the Sherman Act and California’s Cartwright Act.
     
  • Courts Finds It Lacks Jurisdiction To Entertain Challenge To FTC Civil Investigative Demand
     
    02/11/2021

    On February 3, 2021, Judge R. David Proctor of the United States District Court for the Northern District of Alabama granted the Federal Trade Commission’s motion to dismiss a complaint filed by the Board of Dental Examiners of Alabama (“Board”) seeking to enjoin a Civil Investigative Demand (“CID”) that the FTC had issued to the Board.  Bd. of Dental Exam’rs of Ala. v. Fed. Trade Comm’n, Case No. 2:20-cv-1310-RDP (N.D. Ala. 2021).  The court held that it lacked subject-matter jurisdiction to entertain the complaint because the Board failed to meet the final agency action and exhaustion requirements. 
  • Fourth Circuit Panel Reaffirms State Immunity From Sherman Antitrust Liability
     
    02/03/2021

    On January 19, 2021, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of claims brought by Western Star Hospital Authority, Inc. (“Metro Heath”), an ambulance company, against the City of Richmond, Virginia and the Richmond Ambulance Authority (“RAA”), a public monopoly, under Section 2 of the Sherman Act.
     
  • Third Circuit Requires Patent Validity Analysis In Adjudicating Antitrust Causation
     
    01/26/2021

    On January 11, 2021, the United States Court of Appeals for the Third Circuit vacated a district court order granting defendants’ summary judgment motion, finding that the court erred in concluding that defendants’ patent position barred plaintiff’s antitrust damages claims without evaluating plaintiff’s challenges to the patent’s validity and infringement as to plaintiff’s product.  Fresenius Kabi USA, LLC v. Par Sterile Prods., LLC, No. 20-1618, 2021 WL 80616 (3d Cir. Jan. 11, 2021).  Where the defendant has raised its patent rights as a defense to the assertion of antitrust damages, the Third Circuit held, a court must analyze the plaintiff’s challenges to validity and infringement of the patent regardless of whether patent litigation or a Food and Drug Administration (“FDA”) application relating to the product has been filed.
     
  • Revised Market Definition For Patents Still Fails To State Plausible Claims Against Investment Manager
     
    01/13/2021

    On January 6, 2020, Judge Edward M. Chen of the United States District Court for the Northern District of California granted defendants’ motion to dismiss.  Intel Corp., et al. v. Fortress Investment Group LLC, et al., No. 19-cv-07651-EMC (N. D. Ca. 2021).  Plaintiffs alleged that defendants conspired to aggregate and assert essential patents against plaintiffs, which harmed competition in 13 alleged markets for patented technologies.  Plaintiffs asserted this conduct violated Sherman Act § 1, Clayton Act § 7, as well as unfair competition law under state and FTC statutes.  The Court dismissed plaintiffs’ complaint with prejudice as to the FTC Act claim as well as the other claims as they related to several product markets.  It dismissed without prejudice claims as to the other markets to the extent plaintiffs could further amend their claims.
     
  • Eastern District Of Pennsylvania Allows Hospital Merger To Proceed
     
    12/22/2020

    On December 14, 2020, Judge Gerald Pappert of the United States District Court for the Eastern District of Pennsylvania denied the Federal Trade Commission’s (“FTC”) emergency motion for an injunction pending appeal.  Federal Trade Commission, et al. v. Thomas Jefferson University, et al., 2:20-cv-01113 (E.D. Pa.  Dec. 14, 2020).  The decision comes after the district court, on December 8, denied the FTC’s request to enjoin Jefferson Health from acquiring Albert Einstein Healthcare Network.  The FTC has appealed the December 8 decision and sought an injunction pending that appeal to prevent the acquisition from going forward on December 15 in accordance with the stipulated terms of a prior temporary restraining order entered in the case.  The Court denied the FTC’s motion, explaining that the emergency motion—rather than maintaining the status quo—would alter the parties’ circumstances by imposing an injunction where there was none.
     
  • Defendants Cannot Crack Peanut Farmers’ Class Certification Motion
     
    12/08/2020

    On December 1, 2020, Judge Raymond A. Jackson of the United States District Court for the Eastern District of Virginia granted plaintiff peanut farmers’ motion for class certification against defendant peanut shelling companies.  D&M Farms, et al. v. Birdsong Corp., et al., No. 2:19-cv-463 (E. D. Va. 2020).  Plaintiffs alleged that defendants conspired to lower the price of peanuts since as early as January 2014 in violation of Sherman Act § 1.  The court certified plaintiffs’ proposed class after finding the facts submitted by plaintiffs and plaintiffs’ expert analysis satisfied the class certification requirements.
     
  • California District Court Cuts Cord On Subcontractor’s Antitrust Claims Against Cable Provider
     
    12/01/2020

    On November 17, 2020, Judge Troy Nunley of the United States District Court for the Eastern District of California granted summary judgment for Comcast, dismissing claims brought by a cable installation subcontractor alleging that Comcast engaged in unlawful anticompetitive activity in violation of state antitrust laws.  Clear Connection Corp. v. Comcast Cable Commc’ns. Mgmt., LLC, No. 2:12-cv-02910-TLN-DB (E.D. Cal. Nov. 17, 2020).
     
  • Central District Of California Dismisses Sherman Act Claims Involving Alleged Los Angeles Outdoor Advertising Market
     
    11/17/2020

    On November 9, 2020, the United States District Court for the Central District of California granted defendant Outfront Media Inc.’s (“Outfront”) motion to dismiss claims that Outfront engaged in an illegal conspiracy to stifle competition and maintain “monopolistic control” over the alleged market for outdoor advertising (billboards) in Los Angeles.  Karraa v. City of Los Angeles, No. 2:20-cv-07036-SVW-AGR (C.D. Cal. Nov. 9, 2020).  The Court found that plaintiffs, including rival outdoor advertising company Virtual Media Group, Inc. (“VMG”) and the ground lessors of billboard sites, did not plead facts to establish a violation of either Section 1 or Section 2 of the Sherman Act.
     
  • Anti-Competitive Effects Suit Against Tyson Chicken To Proceed To Trial
     
    11/10/2020

    On October 27, 2020, Judge Joseph McKinley Jr. of the United States District Court for the Western District of Kentucky granted in part and denied in part Tyson’s motion for summary judgment.  Charles Morris, et al v. Tyson Chicken Inc., et al., 4:15-cv-00077 (W.D. Ky. Oct. 27, 2020).  Plaintiffs, growers of chicken broilers who contract with Tyson for the supply of chicken, sued alleging a number of violations under the Packers and Stockyards Act (“PSA”), as well as numerous contract claims.
     
  • Third Time’s Not A Charm:  California District Court Dismisses Consolidated Class Action Against German Automakers
     
    11/03/2020

    On October 23, 2020, District Judge Charles Breyer of the United States District Court for the Northern District of California dismissed with prejudice Sherman Act claims in two consolidated complaints brought by consumers (indirect purchasers or IPPs) and auto-dealers (direct purchasers or DPPs) (together Plaintiffs).  The complaints alleged anticompetitive standardization of diesel emissions control systems and price-fixing by the five leading German car manufacturers in the United States—Audi AG, BMW AG, Daimler AG, Porsche AG, and Volkswagen AG (Defendants) for models made between 2006 through 2016.  In re:  German Automotive Manufacturers Antitrust Litigation, MDL No. 2796 CRB (JSC) (N.D.Cal. Oct. 23, 2020).  Ultimately, the Court found that Plaintiffs failed to allege a "relevant market" and that Defendants had power within that market.  The Court had granted Defendants’ motions against the same Plaintiffs on two prior occasions and thus granted the present motion with prejudice so that Plaintiffs would not get a fourth bite at the apple.
     
  • Northern District Of California Engages In Tech Companies’ Fortnite Battle
     
    10/27/2020

    On October 9, 2020, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California granted in part and denied in part Epic Games’ motion for preliminary injunction against Apple, Inc. Epic Games, Inc. v. Apple Inc. ​, No. 4:20-cv-05640-YGR (N. D. Cal. 2020).  Plaintiff Epic Games (“Epic”) sought to reinstate its popular video game, Fortnite, to the Apple App Store and to regain its access to Apple’s developer tools.  The Court declined to reinstate Fortnite to Apple’s App Store, but ordered Apple to allow Epic’s corporate affiliates access to its developer tools.
     
  • Fifth Circuit Reverses Decision Of Immediate Appealability Of State Action Immunity Defense
     
    10/20/2020

    On October 2, 2020, the United States Court of Appeals for the Fifth Circuit reversed a district court’s ruling staying an administrative proceeding brought by the Federal Trade Commission (the “FTC”) against the Louisiana Real Estate Appraisers Board (the “Board”).  Louisiana Real Estate Appraisers Bd. v. United States Fed. Trade Comm’n, No. 19-30796, 2020 WL 5869072 (5th Cir. Oct. 2, 2020).  The Fifth Circuit found that the district court lacked jurisdiction to stay the FTC proceeding because the Commission’s order denying the Board immunity under the state action doctrine did not constitute final agency action under the Administrative Procedure Act, nor did the collateral order doctrine apply.  The practical effect of the ruling is the Board will be forced to defend its challenged regulation in the FTC proceeding before taking an appeal.
     
  • Northern District Of Illinois Allows Price-Fixing Claim Against National Association Of Realtors To Proceed
     
    10/13/2020

    On October 2, 2020, Judge Andrea R. Wood of the Northern District of Illinois denied related motions to dismiss filed by the National Association of Realtors (“NAR”) and certain corporate defendants who are among the largest real estate brokers in the United States (the “Corporate Defendants” and, collectively with NAR, “Defendants”), which sought to avoid a price-fixing suit brought by a putative class of home sellers under Section 1 of the Sherman Act.  Moehrl v. The National Association of Realtors, No. 19-cv-01610 (N.D. Ill. Oct. 2, 2020).  In denying Defendants’ motions, the Court noted (among other things) allegations that the Corporate Defendants required its franchisees, affiliates, and realtors to join the NAR and follow the NAR’s rules, including rules for broker commissions.  The Court found that this conduct plausibly demonstrated the existence of a conspiracy among the Corporate Defendants, NAR, and other non-parties to impose sales commission rules that could result in unfair charges to home sellers.
     
  • Third Circuit Reverses $448 Million FTC Penalty Imposed Against Generic Pharmaceutical Manufacturers
     
    10/08/2020

    On September 30, 2020, a panel of the United States Court of Appeals for the Third Circuit made up of Judges Thomas M. Hardiman, David J. Porter, and Peter J. Phipps reversed a court-ordered disgorgement penalty of $448 million, holding that disgorgement is not an available remedy under Section 13(b) of the Federal Trade Commission (“FTC”) Act.  Fed. Trade Comm’n v. AbbVie Inc., No. 18-2621, 2020 WL 5807873 (3d Cir. Sept. 30, 2020).  Respondents AbbVie, Inc., Abbott Laboratories, Unimed Pharmaceuticals LLC, and Besins Healthcare, Inc. (collectively “Respondents”) are patent owners of a testosterone replacement therapy drug called AndroGel.  Appellant FTC sued Respondents in the United States District Court for the Eastern District of Pennsylvania under Section 13(b) of the FTC Act (15 U.S.C. Sec. 53(b)), which provides a mechanism for the FTC to seek injunctive relief in connection with Respondents’ lucrative sale of AndroGel. 
     
  • Tech Startup’s Antitrust Claims Against Professional Networking Site Don’t Get The Job Done
     
    09/29/2020

    On September 9, 2020, Judge Edward Chen of the United States District Court for the Northern District of California dismissed antitrust claims brought against LinkedIn by a tech startup that alleged LinkedIn exploited its monopoly power to deny the startup access to essential information it uses in providing analytics services.  hiQ Labs, Inc. v. LinkedIn Corp., No. 17-cv-03301-EMC (N.D. Cal. Sept. 9, 2020).
     
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