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  • Northern District Of California Engages In Tech Companies’ Fortnite Battle

    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

    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

    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

    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

    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).
  • U.S. District Court Dismisses Auto Parts Maker’s Antitrust Claims Against Wireless Patent Pool

    On September 10, 2020, Chief Judge Barbara M. G. Lynn of the U.S. District Court for the Northern District of Texas dismissed a major automotive components manufacturer’s antitrust lawsuit against a group of holders of standard-essential patents (“SEPs”) used in wireless telecommunications and their joint licensing agent Avanci LLC, rejecting claims that defendants’ patent licensing platform and practices violated, inter alia, Sections One and Two of the Sherman Act.  Continental Automotive Systems, Inc. v. Avanci, LLC, No. 3:19-cv-02933-M (N.D. Tx. Sept. 10, 2020).  In dismissing the case, the Court found that plaintiff had failed to adequately plead (1) antitrust standing, (2) an unlawful agreement to restrain trade under Section One, and (3) the anticompetitive conduct necessary to establish a violation of Section Two.  On the monopolization claim, this decision is consistent with the Ninth Circuit’s decision last month in FTC v. Qualcomm Inc., in which the Ninth Circuit reversed the district court and rejected similar Section Two challenges to Qualcomm’s licensing practices for its SEPs.  It is also consistent with the U.S. Department of Justice Antitrust Division’s July 28, 2020 favorable business review letter addressing Avanci’s 5G patent licensing platform.
  • California State Court of Appeals Reverses Award For Antitrust “Circuit Dealing” Allegations

    On September 2, 2020, a three-judge panel on the California State Court of Appeals Second Appellate District reversed a jury’s award in favor of Flagship Theatres of Palm Desert, LLC (“Plaintiff”) under California’s Cartwright Act.  Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc., No. B292609, 2020 WL 5229369, at *1 (Cal. Ct. App. Sept. 2, 2020).  Plaintiff sued rival theaters Century Theatres, Inc. and Cinemark USA, Inc. (“Defendants”) in Coachella Valley, California in connection with their “circuit dealing” agreements with movie distributors.  The court found that the elimination of a single competitor is not sufficient evidence of harm to competition to sustain a verdict under the Cartwright Act.  
  • Northern District Of California Rejects Plaintiffs’ Request To Challenge Approval Of Class Settlement That Excluded Them

    On August 27, 2020, Judge Jon S. Tigar of the United States District Court for the Northern District of California denied a motion to intervene filed by two subclasses of indirect cathode ray tube purchasers (“Non-Settling Plaintiffs”) that would have allowed them to derail a $500 million settlement between 22 state classes of indirect purchasers (“Settling Plaintiffs”) and seven cathode ray tube manufacturers (“Settling Defendants”).  The Non-Settling Plaintiffs sought intervention in order to appeal the District Court’s final approval of the settlement.  The decision is In re Cathode Ray Tube (CRT) Antitrust Litig., No. 07-cv-05944-JST (N.D. Cal. Aug. 27, 2020).
  • Eastern District Of Virginia Wades Into “Grey Area”; Certifies Class Of Thirty-Five Direct Purchaser Plaintiffs

    On August 21, 2020, Judge Rebecca Beach Smith of the United States District Court for the Eastern District of Virginia certified a class of thirty-five direct purchasers.  In Re Zetia (Ezetimibe) Antitrust Litigation, 19-cv-00014 (E.D. Va.  Aug. 21, 2020).  Plaintiffs, direct purchasers of the branded drug Zetia, alleged that defendant pharmaceutical manufacturers engaged in an unlawful reverse-payment settlement whereby the manufacturer of the branded drug Zetia agreed to pay a generic manufacturer approximately $800 million to delay its launch of a generic for Zetia for nearly five years.  Zetia is a drug that prevents cholesterol by inhibiting the buildup of plaque in arteries.  The issue before the district court was whether Rule 23 class certification was proper of a direct-purchaser class of only thirty-five members.  In finding it was, the court found it credible that many class members would not find it financially worthwhile to pursue the case on their own and that judicial economy would be best served by certification.
  • Ninth Circuit Delivers A Defeat To The FTC And Holds That Technology Company’s Licensing Practices Are Not Illegal

    On August 11, 2020, the United States Court of Appeals for the Ninth Circuit overturned a decision by the United States District Court for the Northern District of California finding that the Federal Trade Commission had proven that the technology company’s (the “Company”) patent licensing practices violated the antitrust laws.  FTC v. Qualcomm Corp., __ F.3d __, Case No. 19-16122, 2020 WL 4591476 (9th Cir. Aug. 11, 2020).  The panel included Judges Rawlinson and Callahan of the Ninth Circuit, and Judge Murphy of the Eastern District of Michigan, sitting by designation.  While the Ninth Circuit’s opinion involves some complex issues involving technology markets and patent law, at a higher level, this opinion’s critical antitrust findings reaffirm that businesses are free to independently choose with whom to deal, the terms upon which they will do so and that mere profit-seeking conduct is not illegal.  The opinion further makes plain that to establish the element of harm to competition, plaintiff’s theory of harm, its market definition, and its proof of alleged anticompetitive effects must be consistent.  Where the alleged anticompetitive effects are not established to have occurred within the properly defined, relevant market, a plaintiff’s claim should be rejected.
  • Sports Promoter Misses Goal In SDNY Antitrust Case Against US Soccer

    On July 20, 2020, United States District Judge Valerie Caproni of the United States District Court for the Southern District of New York dismissed antitrust claims brought by a soccer promoter against the United States Soccer Federation (“USSF”), which alleged that USSF entered into anticompetitive agreements to block plaintiff from hosting international soccer matches in the United States.  Relevent Sports, LLC v. United States Soccer Federation, Inc., No. 19-CV-8359 (S.D.N.Y. July 20, 2020).
  • The Supreme Court Of California Clarifies The Legal Standards For Economic Torts And For California Business & Professions Code Section 16600 Claims

    On August 3, 2020, a unanimous California Supreme Court clarified the legal standards for claims alleging tortious interference with contracts that are terminable at will and the substantive standard for review of alleged violations of California Business and Professions Code section 16600’s prohibition against restraints on the freedom to engage in a business.  Ixchel Pharma, LLC v. Biogen, Inc., No. S256927, 2020 WL 4432623 (Cal. Aug. 3, 2020).  On appeal from the Eastern District of California, the Ninth Circuit (Ixchel Pharma, LLC v. Biogen, Inc., 930 F.3d 1031 (9th Cir. 2019)) asked the California Supreme Court to answer two certified questions on unresolved issues of California law:  (1) whether a plaintiff must plead an independently wrongful act to state a claim for tortious interference with a contract that is terminable at will; and (2) whether a contract is void under section 16600 where it restrains one entity from engaging in lawful business or trade with another entity.
  • SDNY Denies Class Certification On Aluminum Price-Fixing Claims

    On July 23, 2020, U.S. District Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York denied a motion for class certification in the Aluminum Warehousing Antitrust Litigation based on plaintiffs’ failure to show that they could establish class-wide impact through common proof.  The case is significant, among other things, in its close examination and rejection of plaintiffs’ statistical models based on average impact that mask the existence of putative class members who did not suffer any injury.
  • When “Killing Competition” Isn’t Anticompetitive:  Federal Circuit Affirms Dismissal Of Power Grid Tech Company’s Antitrust Claims Against Rival Firms

    On July 13, 2020, the United States Court of Appeals for the Federal Circuit affirmed the Central District of California’s dismissal of a suit brought by a power systems software company against three competitor corporations on grounds that plaintiff’s claims failed to adequately allege anticompetitive conduct under the Sherman Act and related state law claims.  Power Analytics Corp. v. Operation Tech., Inc. et al., No. 19-1805 (Fed. Cir. July 13, 2020).
  • Texas District Court Finds Foreign Patent Holder Properly Served Through U.S. Subsidiary in Antitrust Dispute Over Standards Essential Patents

    On July 5, 2020, Chief Judge Barbara M.G. Lynn of the United States District Court for the Northern District of Texas, Dallas Division denied Sharp Corporation’s (“Sharp Japan”) motion to dismiss claims that Sharp Japan colluded with other technology companies in refusing to license their standard essential patents (“SEPs”) on fair, reasonable, and non-discriminatory (“FRAND”) terms.  Continental Auto. Sys., Inc. v. Avanci, LLC, No. 3:19-cv-02933-M (N.D. Ill. July 5, 2020). 
  • Northern District Of Illinois Dismisses Antitrust Claims Relating To World’s Most Profitable Drug—Humira (Adalimumab)

    On June 8, 2020, Judge Manish Shah of the United States District Court for the Northern District of Illinois (Eastern Division) granted AbbVie’s motion to dismiss plaintiff’s Sherman Act claims because the allegations fell “short of alleging the kind of competitive harm remedied by antitrust law.”  In re Humira (Adalimumab) Antitrust Litigation, No. 1:19-cv-01873 (N.D. Il. 2020).  Plaintiffs are two separate classes of indirect purchasers in a consolidated class action alleging that pharmaceutical manufacturer AbbVie, in concert with competing biosimilar manufacturers (Amgen, Samsung Bioepis, and Sandoz), violated §§ 1 and 2 of the Sherman Act by improperly exercising monopoly power over the market for the drug Adalimumab.
  • California Appeals Court Reverses Denial Of Class Certification In Anheuser-Busch Pricing Suit

    On May 29, 2020, the Court of Appeal for the Fifth Appellate District of California (Judge Brad Hill) reversed the lower court’s denial of certification for a class of convenience store owners pursuing a price discrimination claim under California law.  Dhillon, et al. v. Anheuser-Busch, LLC, et al., No. F074952, 2020 WL 2786837 (Cal. Ct. App. May 29, 2020).  Plaintiffs alleged that defendants, a major brewer and its distributor, violated California law requiring wholesalers to sell to retailers on a nondiscriminatory basis and charge only the prices filed with the Department of Alcoholic Beverage Control.  Specifically, plaintiffs alleged that defendants engaged in a systematic scheme to favor certain retailers over others in the pricing of beer by issuing a disproportionately large number of consumer coupons to favored retailers.  Those retailers, in turn, allegedly redeemed the coupons themselves rather than issuing them to customers to use in connection with a particular beer sale.  Based on this scheme, plaintiffs alleged, the favored retailers effectively received wholesale prices, below the prices paid by “disfavored” retailers.
  • United States District Court For The Eastern District Of Pennsylvania Denies End-Payor Plaintiffs’ Motion For Class Certification In Pay-For-Delay MDL

    On June 3, 2020, Judge Jan E. DuBois of the United States District Court for the Eastern District of Pennsylvania denied the End-Payor Plaintiffs’ (“EPPs”) motion for class certification in a multidistrict litigation (“MDL”) challenging the settlement practice of pay-for-delay.  In re Niaspan Antitrust Litig., No. 13-MD-2460, 2020 WL 2933824 (E.D. Pa. June 3, 2020).  The district court denied the EPPs’ motion for class certification because the EPPs failed to demonstrate, by a preponderance of the evidence, the requirements of ascertainability, predominance, and superiority.
  • Reno, Nevada Escapes Shearman Section 1 Antitrust Suit

    On May 14, 2020, the United States Court of Appeals for the Ninth Circuit affirmed the summary judgement against a private recycling company, which had alleged the city of Reno, Nevada had violated Section 1 of the Sherman Act by granting a competing recycling firm, Reno Disposal, an exclusive franchise over certain recycling services in the city.  Green Solutions Recycling, LLC v. Reno Disposal Company Inc., 3:16-cv-00334-MMD-CBC (9th Cir. May 14, 2020).
  • Important Procedural Developments In Litigation Over Two-Sided Markets

    There were two developments in litigation involving the treatment of two-sided markets that, while not groundbreaking themselves, could portend significant implications for future litigation involving two-sided markets.
  • SDNY Judge Grants 3M Preliminary Injunction Against N95 Mask Price Gouger

    On May 4, 2020, U.S. District Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York issued an order granting plaintiff 3M’s application for a preliminary injunction against defendant Performance Supply, LLC under Federal Rule of Civil Procedure 65(a).
    CATEGORY: Gouging
  • U.S. Attorney’s Office Charges New York Resident With COVID-19-Related Price Gouging

    On April 24, 2020, the U.S. Attorney’s Office for the Eastern District of New York charged Long Island resident Amardeep Singh with hoarding and price gouging of medical supplies in violation of the Defense Production Act of 1950 (“DPA”).  The complaint alleges that Mr. Singh and his business entities acquired excessive amounts of personal protective equipment (“PPE”) and other medical supplies designated as “scarce” under an executive order issued by the President.  Mr. Singh then allegedly sold these products at prices well in excess of the prevailing market price, including a 1,328% markup on disposable face masks.  Complaint, United States v. Singh, No. 20-MJ-236 (SIL) (E.D.N.Y. Apr. 24, 2020).  According to the U.S. Attorney’s Office, the charges are the first criminal charges filed under the DPA during the present crisis.  The case is currently before Magistrate Judge Steven I. Locke.
  • Northern District Of Georgia Allows Sherman Act Tying Scheme Claims To Proceed

    On April 14, 2020, Judge Timothy C. Batten Sr. of the United States District Court for the Northern District of Georgia denied a motion to dismiss Shearman Act claims against defendant CargoSprint, LLC and its founder.  PayCargo, LLC v. CargoSprint, LLC, No. 3:19-CV-85-TCB, 2020 WL 1861928 (N.D. Ga. Apr. 14, 2020).  Plaintiff, a competing provider of electronic payment management services to freight and cargo carriers and shippers, alleged that defendants violated antitrust laws by tying the use of one of their products to the purchase of another.  Judge Batten denied defendants’ motion to dismiss, rejecting defendants’ argument that plaintiff’s amended complaint contained only conclusory allegations regarding the tying arrangement.
  • Northern District Of Texas Rejects Walker Process And Sham Patent Litigation Antitrust Claims For Lack Of Standing Based On Failure To Show Causation

    On April 13, 2020, Judge Reed O’Connor of the United States District Court for the Northern District of Texas granted defendants’ motion for summary judgment on plaintiffs’ monopolization claim based on plaintiffs’ failure to present substantial evidence that fraud on the Patent Office and subsequent sham litigation were a material cause of plaintiffs’ alleged lost profits.  Chandler et al v. Phoenix Services LLC, 19-cv-00014 (N.D. Tex.  April 13, 2020).  With regard to plaintiffs’ claims for fees and costs expended in defending the sham litigation, the Court found that these claims were barred by the statute of limitations.
  • Southern District Of New York Dismisses Putative Class Action Against Banks For Alleged Price Manipulation

    On March 29, 2020, Judge Gregory H. Woods of the United States District Court for the Southern District of New York dismissed for lack of standing a putative class action against defendant banks accused of a conspiracy to manipulate the global benchmark price of palladium and platinum.  The Court also dismissed plaintiffs’ Commodity Exchange Act (“CEA”) claims for lack of personal jurisdiction, finding that the CEA allegations concerned primarily foreign conduct.  In re Platinum and Palladium Antitrust Litig., No. 1:14-CV-9391-GHW, 2020 WL 1503538 (S.D.N.Y. Mar. 29, 2020).
  • Southern District Of Florida Dismisses Antitrust Claim Despite Burger Franchise’s Explicit No-Hire Agreements

    On March 24, 2020, the United States District Court for the Southern District of Florida granted defendants Burger King Worldwide, Inc., Burger King Corporation, Restaurant Brands International, Inc., and Restaurant Brands International Limited Partnership’s (“Burger King”) motion to dismiss plaintiffs’ claim that Burger King and its franchises colluded to limit employment options and suppress wages for franchise employees.  Jarvis Arrington et al. v. Burger King Worldwide, Inc., et al., No. 1:18-cv-24128 (S.D. Fla. 2020).  The Court dismissed plaintiffs’ claim because Burger King and its franchises are not independent entities for the purpose of § 1 of the Sherman Act and thus not capable of conspiring.
  • California District Court Partially Dismisses Constitutional Claims In Dental Antitrust Suit

    On March 19, 2020, District Judge George Wu of the United States District Court for the Central District of California dismissed an Equal Protection Clause claim, and expressed skepticism about remaining claims from a dental company’s suit alleging anticompetitive practices on the part of the Dental Board of California (the “Board”) and related due process and Dormant Commerce Clause claims.  Sulitzer v. Tippins, 2:19-cv-08902 (C.D.Cal. March 19, 2020).
  • Seventh Circuit Resuscitates Medical Supply Suit, Ruling Plaintiffs Have Standing Under Illinois Brick

    On March 5, 2020, the U.S. Court of Appeals for the Seventh Circuit vacated and remanded the Southern District of Illinois’ dismissal of a suit brought by healthcare providers against entities in the distribution chain for medical devices they purchased.  Marion Healthcare, LLC v. Becton Dickinson & Co., 18-3735 (7th Cir. Mar. 5, 2020).  Judge Diane P. Wood, writing for a unanimous panel, ruled that the district court erred in deciding that plaintiffs lacked antitrust standing to bring conspiracy claims under Section 1 of the Sherman Act.
  • D.C. Circuit Affirms Dismissal Of Wine Bar’s Unfair Competition Action Against Trump Hotel

    On February 28, 2020, the United States Court of Appeals for the D.C. Circuit affirmed a district court’s decision to dismiss a D.C. based restaurant’s unfair competition action against President Donald J. Trump and his Washington, D.C. hotel.  K&D LLC v. Trump Old Post Office LLC and Donald J. Trump, No. 18-7185 (D.C. Circuit Feb. 28, 2020).  The restaurant, Cork Wine Bar (“Cork”), brought suit in the Superior Court of the District of Columbia asserting claims for violation of D.C.’s common law of unfair competition.  Cork principally alleged that the Trump International Hotel exploits an unfair competitive advantage by virtue of its association with the President’s name.  Cork asserted that, following the 2016 election, Trump International Hotel began attracting a significant portion of Cork’s previous customer base including lobbyists, advocacy groups, and diplomats because of the customers’ perception that patronizing Trump’s establishment would help them curry favor with the Trump Administration.
  • Sixth Circuit Finds Arbitration Agreement For Price-Fixing Suit Unenforceable

    On February 24, 2020, the United States Court of Appeals for the Sixth Circuit affirmed a district court ruling that an arbitration provision in a warranty clause did not apply to antitrust claims brought by auto parts distributors against manufacturers of automotive shock absorbers.  In re:  Auto. Parts Antitrust Litig. VIP, Inc. v. KYB Corp., No. 19-1150, 2020 WL 881263 (6th Cir. Feb. 24, 2020).  Defendants were seeking to use the provision to compel plaintiffs to arbitrate price-fixing claims.  The district court found the provision was not enforceable in these circumstances, and the Sixth Circuit affirmed.
  • Central District Of California Allows Sherman Act Claims Against Performing Rights Organization To Proceed But Strikes Claims For Monetary Relief

    On February 13, 2020, Judge Terry Hatter of the United States District Court for the Central District of California issued an order denying Defendant Global Music Rights LLC (GMR)’s motion to dismiss antitrust claims based on its licensing practices, but striking all claims for restitution or disgorgement of profits. Radio Music License Committee Inc. v. Global Music Rights LLC, 19-cv-03957 (C.D. Cal. February 13, 2020).
  • Southern District Of New York Sinks Sync Licensing Claims

    On January 29, 2020, Judge Denise Cote of the United States District Court for the Southern District of New York granted a group of music publishers’ motion to dismiss antitrust and tortious interference claims.  Downtown Music Publishing LLC et al. v. Peloton Interactive Inc., No. 1:19-cv-02426 (S.D.N.Y. 2020).  Defendant Peloton brought counterclaims alleging that the National Music Publishers’ Association, Inc. (“NMPA”) and its members (collectively, “plaintiffs”) had engaged in anticompetitive behavior including the refusal to deal with Peloton by denying sync licenses for music to be used in its exercise classes.  The Court dismissed defendant Peloton’s antitrust counterclaims for failure to state a claim due to lack of proper market definition and declined to allow Peloton an option to amend its relevant market allegations.
  • Southern District Of California Dismisses Price-Fixing Claims Against Owners Of Major Tuna Purveyor

    On January 28, 2020, the United States District Court for the Southern District of California dismissed antitrust claims alleging that a private equity fund holding an ownership interest in Bumble Bee Foods LLC (“Bumble Bee”) participated in a conspiracy with major tuna companies to fix the prices of their packaged seafood products.  Judge Janis L. Sammartino granted defendants’ motion to dismiss claims against Lion Capital LLP (“Lion Capital”) and Big Catch Cayman LP (“Big Catch”) under FRCP 12(b)(6) with prejudice, determining that plaintiffs failed to state plausible claims for relief against these defendants under §1 of the Sherman Act.  In Re: Packaged Seafood Products Antitrust Litigation, 15-MD-2670 JLS (MDD) (S.D. Cal. Jan. 28, 2019).
  • FTC And State Regulators Bring Enforcement Action In Southern District Of New York Against “Pharma Bro” Martin Shkreli

    On Monday, January 27, 2020, the Federal Trade Commission (“FTC” or “the Commission”) and the New York Attorney General filed suit in federal court in the Southern District of New York against Martin Shkreli and Vyera Pharmaceuticals based on allegations of market monopolization.  FTC v. Vyera Pharmaceuticals, LLC, No. 1:20-cv-00706 (S.D.N.Y. filed Jan. 27, 2020).  The case has been assigned to U.S. District Judge Denise L. Cote.  Shkreli, commonly referred to in the media as “pharma bro,” gained notoriety for behavior that led to his federal incarceration for securities fraud in 2017.  The Complaint alleges that Shkreli and others engaged in an unlawful scheme to block low-cost generic competition and maintain a monopoly on Daraprim, an essential drug used to treat the potentially fatal parasitic infection toxoplasmosis, in violation of the Sherman Act and New York state law.  The case is a notable example of close collaboration between federal antitrust enforcers and a state attorney general’s office.
  • 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.
    CATEGORIES: Section 1Sherman Act § 1
  • 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.
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