On March 8, 2023, Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California granted a motion to dismiss a proposed antitrust class action lawsuit alleging that social networking company (the “Company”) has a monopoly in the professional social networking market, which it protects through a barrier to entry comprising the Company’s “data centralization and aggregation, its machine learning and AI infrastructure, and the inferred data it produce[s].” Crowder et al. v. LinkedIn Corporation, No. 22-cv-00237-HSG (N.D. Cal., Mar. 8, 2023). Plaintiffs alleged the Company violated Sections 1 and 2 of the Sherman Act by engaging in a “monopoly broth” of anticompetitive conduct, ranging from exclusive data sharing agreements to an alleged agreement with Facebook to divide markets. Granting the motion to dismiss, the Court ruled that none of the alleged activities amounted to anticompetitive conduct, either individually or on aggregate.

Following previous Clayton Act enforcement efforts prohibiting interlocking directorates, the Department of Justice (“DOJ”) announced on Thursday, March 9, 2023, that five directors have resigned from overlapping board positions, and one company declined to exercise its board appointment rights. This marks the second wave of resignations since DOJ increased its scrutiny of interlocking directorates, bringing the total number of unwound or prevented interlocks to at least 13 directors across ten boards in less than six months.

On February 27, 2023, the United States Court of Appeals for the Second Circuit reversed and remanded the Southern District of New York’s dismissal of antitrust claims alleging that defendants conspired to manipulate the market value of platinum and palladium. In re Platinum and Palladium Antitrust Litigation, No. 20-1458 (2d Cir. Feb. 27, 2023). The Second Circuit ruled that certain plaintiffs who traded futures contracts on an exchange were efficient enforcers with standing to sue under Section 1 of the Sherman Act, while traders in the physical markets for these metals were not efficient enforcers and lacked antitrust standing.

On March 7, 2023, the United States Court of Appeals for the Second Circuit vacated and remanded the lower court’s dismissal of Relevant Sports, LLC’s (“Plaintiff”) claim that United States Soccer Federation, Inc. (USSF) and Fédération Internationale de Football Association (FIFA) (“Defendants”) violated Section 1 of the Sherman Act’s prohibition on unreasonable restraints of trade. Relevant Sports, LLC v. United States Soccer Federation, Inc., 2023 WL 2375884 (2d Cir. Mar. 7, 2023). The Second Circuit held that where an association rule itself is the alleged anticompetitive agreement challenged, the existence of a binding association rule is sufficient direct evidence of concerted action to survive a motion to dismiss for failure to state a claim under Section 1 of the Sherman Act. Plaintiff “need not allege an antecedent agreement to agree” to move forward on its antitrust claim.

On February 9, 2023, Judge Virginia Kendall of the United States District Court for the Northern District of Illinois denied a motion to compel discovery in a long-running dispute between major broadcasters and ad buyers who allege that the broadcasters conspired to fix the prices of local TV ads.  In re Local TV Advertising Antitrust Litigation, No. 18-6785 (N.D. Ill. Feb. 9, 2023).  In their discovery motion, defendant broadcasters had sought to compel production of material that the broadcasters claimed was necessary to challenge both the antitrust standing of two advertising agency plaintiffs and plaintiffs’ proposed definition of the relevant antitrust market.  Denying the motion to compel, the Court ruled that the information sought by the broadcasters was not sufficiently relevant to either issue.

On January 24, 2023, the Department of Justice, along with the Attorneys General of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia, filed a civil antitrust action against Google in the United States District Court for the Eastern District of Virginia.  Plaintiffs allege that Google violated Sections 1 and 2 of the Sherman Act by monopolizing several digital-advertising products.  These products are various software programs and exchanges used by advertisers to create ads and place them on websites, including as search results on Google.  When someone uses Google’s search engine, they are not only inundated with popular search-engine results but with relevant advertisements.  In addition to search-engine advertisements, Google’s tools are used by third-party websites to promote digital advertising.  Plaintiffs contend that website publishers rely on Google’s digital-advertising products to sell advertisements and that advertisers depend on them to purchase advertisements.

On January 31, 2023, the United States District Court for the Northern District of California denied the Federal Trade Commission’s (“FTC”) request for a preliminary injunction to block a technology company’s (the “Company”) acquisition of a virtual reality fitness app maker (the “Fitness App”. The Court found that the FTC failed to show that the Company was reasonably likely to enter the virtual reality dedicated fitness app market absent the deal. Federal Trade Commission v. Meta Platforms Inc. et al., No. 5:22-CV-04325-EJD (N. D. Cal. Feb. 3, 2023).

On January 25, 2023, Judge Timothy J. Kelly of the United States District Court for the District of Columbia granted petitioner National Association of Realtors’ (“NAR”) Petition to Set Aside a Civil Investigative Demand (“CID”) issued by the United States Department of Justice’s Antitrust Division (the “Division”) related to certain of NAR’s practices and policies. National Association of Realtors v. United States, No. 21-2406 (TJK) (D.D.C. Jan. 25, 2023). The Court ruled that the Division was precluded from issuing the CID because it was substantially similar to two other CIDs that the Division had previously agreed to close in a settlement agreement.

In 2020, the Ninth Circuit issued a landmark decision rejecting the Federal Trade Commission’s antitrust claims challenging a chipmaker’s (the “Company”) sale-and-licensing practices for its modem chips. FTC v. Qualcomm, 969 F.3d 974 (9th Cir.). In doing so, the Ninth Circuit left open the possibility that a claim under California state law (rather than federal law) could survive. This is that the case: various consumers brought a putative consumer class action challenging essentially the same conduct under California law. In re Qualcomm Antitrust Litig., No. 17-md-02773 (N.D. Cal.). On January 6, 2023, the United States District Court for the Northern District of California partially denied and partially granted the Company’s motion to dismiss, ruling that the Ninth Circuit’s decision only partially foreclosed Plaintiffs’ claims.

On January 13, 2023, the U.S. Court of Appeals for the Fifth Circuit found that a Texas lawyer committed legal malpractice by filing antitrust claims that lacked any reasonable factual or legal basis.  Lowe v. Gammon, 21-51234 (5th Cir. Jan. 13, 2023).

On December 30, 2022, the United States Court of Appeals for the Sixth Circuit unanimously affirmed the district court’s dismissal of an aspiring National Basketball Association (NBA) player agent’s suit against the National Basketball Players Association (NBPA) and the NBA.  Rosel C. Hurley III v. National Basketball Players Association, et al., No. 22-3038 (6^th Cir. Dec. 30, 2022).  Plaintiff alleged that the NBPA and NBA conspired to exclude him from the marketplace for NBA player agents.  The Sixth Circuit affirmed the district court’s dismissal, because it viewed the NBPA and NBA’s alleged actions as exempt from antitrust scrutiny under both the statutory and non-statutory labor exemptions to the Sherman Act.

On December 2, 2022, dozens of Taylor Swift fans sued Ticketmaster in California state court for, among other things, alleged state-law antitrust violations.

On November 21, 2022, Judge Virginia Kendall of the United States District Court for the Northern District of Illinois denied a motion to dismiss an antitrust lawsuit alleging that ten turkey product suppliers coordinated pricing and reduced output though direct communications, trade association meetings, and industry reports provided by co-defendant Agri Stats, Inc. In re Turkey Antitrust Litig., No. 19-8318 (N.D. Ill. Nov. 21, 2022). The Court had previously dismissed as implausible an initial, single-paragraph allegation of a per se violation of Section 1 of the Sherman Act. The case proceeded, however, on plaintiffs’ separate allegations of improper exchanges of competitively sensitive information under the rule of reason. Over a year later and after completion of substantial discovery, plaintiffs amended their complaint to renew their per se claim. The motion to dismiss here only related to the per se violation. In denying the motion to dismiss, the Court ruled that plaintiffs’ complaint sufficiently alleged parallel conduct in the form of coordinated capacity reductions and price increases, as well as certain additional “plus factors” that could suggest an agreement among defendants.

On November 15, 2022, the United States Court of Appeals for the Fourth Circuit unanimously affirmed a district court’s dismissal of a broker’s suit against two aerospace contractors and South Korea alleging that they conspired to cut it out of a large, complex international military procurement transaction because the court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA) and plaintiff’s antitrust claims were untimely under the Clayton Act’s four-year statute of limitations. Blenheim Capital Holdings Ltd. v. Lockheed Martin Corporation, No. 21-2104 (4th Cir. Nov. 15, 2022).

On October 11, 2022, Judge Catherine C. Blake of the United States District Court for the District of Maryland denied the U.S. Department of Justice’s (“DOJ”) motion to preliminarily enjoin the $440 million acquisition of a company with expertise in specialized software development, cyber, and analytics by a larger consulting firm. Ruling that DOJ failed to show that the proposed transaction would cause anticompetitive harm in violation of federal antitrust laws, the Court was unwilling to grant the “extraordinary remedy” of blocking the merger and permitted the parties to close the transaction. United States v. Booz Allen Hamilton Inc. et al., No. 1:22-cv-01603 (D. Md. Oct. 11, 2022).

On September 19, 2022, the United States Court of Appeals for the Fifth Circuit held that the operator of a hospital in Shreveport, Louisiana had failed to adequately plead Sherman Act § 1 and § 2 claims against the dominant medical provider in the Shreveport market.  BRFHH Shreveport, LLC v. Willis-Knighton Medical Center, No. 21-30622 (5th Cir. Sep. 19, 2022).

On September 19, 2022, Judge Carl Nichols of the United States District Court for the District of Columbia dismissed the Department of Justice and attorneys general of Minnesota and New York lawsuit to block UnitedHealth Group’s proposed acquisition of Change Healthcare.  The Court found that the Government failed to meet its burden of proving that the transaction is likely to substantially lessen competition in any relevant healthcare market.  United States, et al. v. UnitedHealth Group Incorporated, et al., No. 1:22-cv-0481 (D.D.C, Sep. 19, 2022).

On September 9, 2022, the United States Court of Appeals for the Sixth Circuit affirmed a district court’s dismissal of an antitrust lawsuit filed against defendants National Operating Committee on Standards for Athletic Equipment (“NOCSAE”) and a group of football helmet manufacturers including Riddell, Inc., Kranos Corp., and Xenith, LLC.  Hobart-Mayfield, Inc. v. Nat’l Operating Comm. on Standards for Athletic Equip., No. 21-1441 (6th Cir. Sept. 9, 2022).  The Court ruled that plaintiff Hobart-Mayfield, Inc.’s (Mayfield) complaint alleging antitrust violations in the alleged football helmet market failed to state a claim for plausible relief and was properly dismissed by the trial court upon defendants’ Rule 12(b)(6) motion.

On August 26, 2022, the United States Court of Appeals for the Eleventh Circuit reversed and remanded a district court’s dismissal of an antitrust lawsuit filed against Defendants Google LLC, YouTube Inc., and Alphabet Inc. on shotgun pleading and antitrust standing grounds.  Inform Inc. v. Google LLC, No. 21-13289 (11th Cir. Aug. 26, 2022).  The Court ruled that plaintiff Inform Inc.’s amended complaint, while lengthy and perhaps unclear, sufficiently put defendants on notice of their alleged antitrust violations in the markets for online advertising and that plaintiff met the Eleventh Circuit’s two-prong test for pleading antitrust standing.

On August 8, 2022, Judge Daniel Crabtree of the United States District Court for the District of Kansas declined to apply the co-conspirator exception to the Illinois Brick direct purchaser rule in a case alleging a conspiracy to delay the entry of generic competition to a patented epinephrine auto injector (“EpiPen”), dismissing antitrust claims against defendant EpiPen manufacturers while allowing the claims against the defendant distributors from whom plaintiffs directly purchased EpiPens to proceed.  KPH Healthcare Services, et al. v. Mylan N.V., et al., No. 20-2065-DDC-TJJ (D. Ka. July 8, 2022).

On August 1, 2022, Judge John S. Tigar of the United States District Court for the Northern District of California certified a class of direct purchasers in a long-running antitrust action alleging that manufacturers of cathode ray tubes conspired to fix prices in violation of Section 1 of the Sherman Act.  The Court certified the class after concluding that plaintiffs’ claims were typical of the class and the sole defendant who has not settled with plaintiffs failed to identify any individualized issues that would predominate over issues common to the proposed class.

On July 21, 2022, the United States Court of Appeals for the Third Circuit unanimously affirmed a district court judge’s conclusion that a prior settlement released a claim by plaintiff, a generic pharmaceutical manufacturer (the “Company”), that defendants engaged in “sham” patent litigation to block it from launching a generic version of defendants’ brand-name drug.  Perrigo Co, et al. v. AbbVie Inc, et al., No. 21-3026 (3d Cir. Jul. 21, 2022).

On July 15, 2022, the United States Court of Appeals for the Seventh Circuit affirmed a magistrate judge’s conclusion that a health clinic, located within an Illinois hospital, did not suffer a cognizable antitrust injury by a hospital and insurance provider for agreeing to in-network status. Marion HealthCare, LLC v. Illinois Hosp. Servs., No. 20-1581, 2022 WL 2763502 (7th Cir. July 15, 2022).

On July 8, 2022, the United States Court of Appeals for the Seventh Circuit reversed the district court’s dismissal of a monopolization claim against an integrated healthcare provider, concluding that plaintiff had pled facts sufficient to support a plausible geographic market as required to establish a claim under section 2 of the Sherman Act and section 7 of the Clayton Act.  Vasquez v. Indiana Univ. Health, Inc., No. 21-3109, 2022 WL 2582368 (7th Cir. July 8, 2022).

On June 21, 2022, the United States Court of Appeals for the Fifth Circuit affirmed a decision dismissing Plaintiff Continental Automotive Systems’ claims challenging the alleged refusal of certain standard-essential patent holders and their licensors to issue the supplier patents on fair, reasonable, and nondiscriminatory (“FRAND”) terms under Section 1 and 2 of the Sherman Act.  Continental Automotive Sys., Inc. v. Avanci, L.L.C., No. 20-11032 (June 21, 2022).

On June 7, 2022, Judge Cynthia M. Rufe of the United States District Court of the Eastern District of Pennsylvania partially granted and partially denied a motion to dismiss a claim for disgorgement under Section 16 of the Clayton Act brought by state attorney generals against 20 generic drug manufacturers alleging price fixing in generic drugs.  In re Generic Pharmaceuticals Pricing Antitrust Litigation, 16-MDL-2724 (E.D. Pa. June 7, 2022).  The Court dismissed the state enforcers’ disgorgement claim, holding that Section 16 of the Clayton Act does not allow for relief for past conduct.  The Court denied the motion as to plaintiffs’ claims for prospective, non-monetary equitable relief, concluding that plaintiffs had parens patriae standing to pursue injunctive relief on behalf of their citizens, but not damages.

On May 27, 2022, in In Re Broiler Chicken Antirust Litigation, No. 16 C 8637, 2022 WL 1720468, at *10 (N.D. Ill. May 27, 2022), Judge Thomas M. Durkin of the United States District Court for the Northern District of Illinois certified classes of direct purchasers, indirect purchasers, and end-user consumers (together, “plaintiffs”) in a Sherman Act lawsuit alleging that major broiler chicken producers conspired to limit chicken production to boost prices.

On May 23, 2022, Judge David Barlow of the District of Utah dismissed claims against a group of mattress manufacturers who had filed antidumping petitions with federal regulators.  CVB, Inc. v. Corsicana Mattress Company, et al., No. 1:20-cv-00144 (D. Utah 2022).  Plaintiff alleged that defendants engaged in anticompetitive conduct including price fixing and interference with plaintiff’s business relationships in violation of the Sherman Act and the Utah Antitrust Act, in addition to Lanham Act and state common law claims.  The Court dismissed all claims, and in particular dismissed with prejudice those claims relating to defendants’ antidumping petitions, which it found protected under the Noerr-Pennington doctrine.

On May 2, 2022, Judge Andrea R. Wood of the United States District Court for the Northern District of Illinois granted a motion to dismiss a putative class action complaint brought by a plaintiff home buyer against the National Association of Realtors (“NAR”) and a number of residential real estate brokerages alleging that certain NAR rules governing real estate brokers’ dealings with home sellers violated of Section 1 of the Sherman Act.  Leeder v. The Nat’l Ass’n of Realtors, et al., No. 21-cv-00430, Dkt. No. 81 (N.D. Ill. May 2, 2022).  The Court held that, because the home buyer was not a direct purchaser of the brokerage services, which were the subject of a contract between the seller and the seller’s broker, his claim was barred under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).

On April 27, 2022, the United States Court of Appeals for the Third Circuit held that a concessions vendor did not have antitrust standing to challenge an exclusive beverage agreement between the Philadelphia International Airport and a third-party beverage company under Section 1 of the Sherman Antitrust Act.  Host Int’l, Inc. v. Marketplace, PHL, LLC, No. 20-2848 (3d Cir. Apr. 27, 2022).  Accordingly, the Court affirmed a district court ruling granting a motion to dismiss the concession vendor’s antitrust claims.

On April 8, 2022, the United States Court of Appeals for the Ninth Circuit, sitting en banc, affirmed an earlier district court order that certified three subclasses of tuna purchasers in a class action lawsuit alleging that defendants violated federal and state antitrust laws.  Olean Wholesale Grocery Coop. Inc. v. Bumble Bee Foods LLC, No. 19-56514, 2022 WL 1053459 (9th Cir. Apr. 8, 2022).

On April 4, 2022, the United States Court of Appeals for the First Circuit reversed a district court’s ruling that a group of jockeys violated federal antitrust law by engaging in a group boycott and jointly refusing to participate in races in an effort to obtain better pay.  Confederacion Hipica de Puerto Rice, Inc. v. Confederacion de Jinetes Puertorriquenos, Inc., No. 19-2201 (1^st Cir., April 4, 2022).  The First Circuit held that the jockeys’ status as independent contractors, rather than traditional employees, did not preclude them from claiming protection for their concerted action under the labor-dispute exemption to the antitrust laws because the issue in the dispute was labor-related.

On March 17, 2022, the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the dismissal of an antitrust complaint brought by SmileDirectClub LLC (“SmileDirect”) against the Dental Board of California.  The complaint alleged that the Dental Board of California utilized unfounded investigations to intimidate and harass with the aim of driving SmileDirect out of the dental and orthodontia markets because of the threat that its cheaper direct-to-consumer model posed to the traditional practice of dentistry.  SmileDirectClub, LLC v. Tippins, No. 20-55735 (9th Cir. Mar. 31, 2022).

On February 28, 2022, the United States Court of Appeals for the Fifth Circuit held that an upstream auto-parts supplier lacked Article III standing to bring an antitrust suit challenging the alleged refusal of certain standard-essential patent holders and their agent to license the supplier patents on fair, reasonable, and nondiscriminatory (“FRAND”) terms.  Cont’l Auto. Sys., Inc. v. Avanci, LLC et al., No. 20-11032 (5th Cir. Feb. 28, 2022).

On March 7, 2022, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of claims that the three largest manufacturers of dynamic random-access memory (“DRAM”) conspired to artificially inflate prices by restricting supply.  In re DRAM Indirect Purchaser Antitrust Litigation, 21-15125 (9th Cir. Mar. 7, 2022).  Plaintiffs alleged that defendants conspired to simultaneously reduce the production of DRAM in order to drive up prices.  The United States District Court for the Northern District of California dismissed the claims because plaintiffs’ allegations did not rise to the level of plausibility required under Rule 12(b)(6).  The Ninth Circuit affirmed, holding that the facts as alleged were not sufficient to establish that defendants’ alleged conduct was the result of a “preceding agreement,” rather than conscious parallel behavior.

On February 17, 2022, the United States District Court for the Southern District of Texas dismissed an antitrust suit against the country’s largest steel manufacturers.  JSW Steel (USA) Inc. v. Nucor Corp. et al., 4:21-cv-01842 (S.D. Tex. 2022).  Plaintiff, JSW Steel (a finished-steel producer), alleged that Cleveland Cliffs Inc., Nucor Corp., and U.S. Steel Corp. violated Section 1 of the Sherman Act and various Texas state competition and contracts laws.  Specifically, Plaintiff alleged that Defendants colluded to increase the price of certain steel imports by lobbying for tariffs, while not being able to provide Plaintiff with equivalent steel products.  Plaintiff argued that its thriving business was crippled and eventually failed due to the collusive behavior of Defendants.

It is widely known that the evolution to online news has been challenging for print media sources, with some estimating that as much as half of all print revenue disappearing and one fifth of U.S. newspapers closing their doors since 2007.  In recent years, the House and Senate have focused on tech giants and the role these companies play in the lives of Americans and in a variety of markets, including digital advertising.  Following a long line of congressional hearings and committee investigations, a number of antitrust complaints have been filed by the Federal Trade Commission, the Department of Justice, and state Attorneys General across the country against major Big Tech companies like Facebook (now known as Meta Platforms, Inc.) and Google.  While some have been consolidated into multidistrict litigation, new cases continue to be filed by private plaintiffs.

On January 7, 2022, Edward M. Chen of the United States District Court for the Northern District of California dismissed an app developer’s claim that Apple, Inc.’s operation of the Apple App Store had violated both state and federal antitrust laws.  Reilly v. Apple, Inc., No. 21-cv-04601 (N.D. Cal. Jan. 7, 2022).  The developer alleged that Apple had monopolized the market for iOS-app distribution (iOS is Apple’s operating system).  The district court dismissed the case, holding that the app developer had failed to plausibly allege either a relevant market or an antitrust injury.

On January 4, 2022, the United States Court of Appeals for the Eleventh Circuit affirmed a district court’s dismissal of an antitrust suit filed by the sellers of a healthcare risk adjustment service company.  Ekbatani et al. v. Cmty. Care Health Network, LLC et al., No. 21-12322 (11th Cir. Jan. 4, 2022).  The sellers alleged that the buyer, who was a direct competitor, violated federal antitrust laws by intentionally reducing the company’s revenue after closing.  That conduct, allegedly, resulted in the sellers’ loss of an “earnout” payment that was contingent upon the company’s performance post-closing.  The three-judge panel affirmed that plaintiffs, the previous owners of the acquired business, did not have antitrust standing to bring their Clayton Act claim.

On January 11, 2022, Judge James E. Boasberg of the U.S. District Court for the District of Columbia denied Facebook, Inc.’s motion to dismiss the Federal Trade Commission (“FTC”) amended complaint alleging that Facebook Inc. monopolized the alleged market for personal social networking (“PSN”) services in violation of Section 2 of the Sherman Act, finding that, in contrast to its original complaint, the FTC’s amended complaint adequately alleged facts to support its proposed market definition and that defendant possessed monopoly power in that market.

On December 6, 2021, Judge Ronald M. Gould of the Ninth Circuit Court of Appeals affirmed jury verdicts against defendant-telescope manufacturers and distributors.  Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co., Ltd., et al., No. 2:20-cv-15940 (9th Cir. 2021).  Plaintiff alleged that defendants conspired to fix prices on telescopes and monopolize the market in violation of the Sherman Act, the Clayton Act, and California antitrust and competition laws.  The Court largely affirmed the district court jury’s decisions, vacating and remanding only as to the amount of the settlement set-off.

On December 6, 2021, the U.S. Supreme Court declined to hear an appeal from a Fourth Circuit ruling that Charlotte-Mecklenburg Hospital Authority, a North Carolina hospital system doing business as Atrium Health, counted as an arm of the local government.  The Fourth Circuit’s decision meant that Atrium was immune from antitrust liability, and the Supreme Court’s decision leaves a potential circuit split on the status of dominant quasi-public hospital systems unresolved.

On November 30, 2021, Judge Edward M. Chen of the United States District Court for the Northern District of California dismissed a putative class action alleging that the defendant smartphone supplier’s contracts with mobile application (“apps”) developers and related guidelines violate Sections 1 and 2 of the Sherman Act based on plaintiffs’ failure to allege a plausible relevant market or that they suffered antitrust harm.  Judge Chen also dismissed plaintiffs’ breach of contract, RICO, and fraud claims.  Coronavirus Reporter v. Apple Inc., No. 21-cv-05567-EMC (N.D. Cal. 2021).

On November 15, 2021, Judges Edith Jones, Jerry Smith, and James Haynes of the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of an antitrust complaint related to Topgolf International’s (“Topgolf”) acquisition of Protracer in 2016.  The complaint alleged that Topgolf acquired a technology owned by Protracer in order to drive its competitor, SureShot Golf Ventures (“SureShot”) out of business in violation of Section 1 and 2 of the Sherman Act.  SureShot Golf Ventures, Inc. vs. Topgolf International, Inc., 21-20132 (5^th Cir. Nov. 15, 2021).

On October 8, 2021, the United States Court of Appeals for the Seventh Circuit affirmed the Northern District of Illinois’ dismissal of a complaint alleging that a nonprofit provider of medical certifications violated Section 1 of the Sherman Act by conspiring to restrain trade in the alleged nationwide market for medical care.  The three-judge panel found that plaintiff, an association of medical practitioners, alleged only conclusory claims against defendant and failed to plead adequate facts to state a claim for unlawful conspiracy under Section 1 of the Sherman Act.  Ass’n of Am. Physicians & Surgeons, Inc. v. Am. Board of Med. Specialties, No. 20-3072 (7th Cir. Oct. 8, 2021).

On October 27, 2021, Judge Kevin McNulty of the United States District Court for the District of New Jersey dismissed a complaint alleging that a cancer drug manufacturer engaged in sham litigation in violation of Section 2 of the Sherman Act and various state antitrust and consumer protection laws based on the same alleged sham litigation.  Louisiana Health Service & Indemnity Company v. Janssen Biotech, Inc., 19-14146 (D.N.J. Oct. 27, 2021).

On October 25, 2021, a unanimous panel of the United States Court of Appeals for the Ninth Circuit affirmed a district court order denying database vendors’ (“Plaintiff-Appellants”) motion for a preliminary injunction against enforcement of Arizona’s 2019 “Dealer Data Security Law.”  CDK Global LLC v. Brnovich, No. 20-16469 (9th Cir. 2021).  The Arizona law restricts car dealership database vendors from engaging in certain practices believed to be anticompetitive and provides consumers with certain additional privacy rights over the information that is collected for such databases.  The database vendors argued that the law was preempted by the federal Copyright Act and violated their federal constitutional rights.

On September 30, 2021, Judge Amy Totenberg of the United States District Court for the Northern District of Georgia denied a utilities management company’s motion to dismiss state and federal antitrust and tortious interference claims.  Lucasys Inc. v. Powerplan, Inc., No. 1:20-cv-02987 (N.D. Ga. Sept. 30, 2021).  Plaintiff alleges five counts of antitrust violations by defendant under Sections 1 and 2 of the Sherman Act, for unlawful restraint of trade and monopoly maintenance via negative tying, the concerted refusal to deal with plaintiff and other market competitors by denying access to software and data needed to develop competing products, and de facto exclusive dealing provisions in contracts with utilities.  The Court found that plaintiff had sufficiently pled its claims at the motion to dismiss stage and declined to grant defendant’s motion to dismiss.

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.

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.”