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D.C. Circuit Reverses Lower Court’s Decision To “Set Aside” Civil Investigative Demand
04/23/2024
On April 5, 2024, the United States Court of Appeals for the District of Columbia Circuit reversed the district court’s decision to “set aside” a civil investigative demand (“CID”) issued by the Antitrust Division of the U.S. Department of Justice (“DOJ”) to the National Association of Realtors (“NAR”), a real estate trade association. The majority found that the issuance of the CID was not barred by the parties’ prior settlement agreement regarding different allegations. National Association of Realtors v. United States, No.23-5065, 2024 WL 1471170 (D.C. Cir. Apr. 5, 2024).
CATEGORY : Government Enforcement -
Eastern District Of California Denies Motion To Dismiss Case Alleging Horizontal Price Fixing Conspiracy Of Real Property In Solano County
04/16/2024
On March 28, 2024, Judge Troy L. Nunley of the United States District Court for the Eastern District of California denied a motion to dismiss a lawsuit alleging that California landowners conspired to drive up the price of properties in Solano County. Flannery Assoc. LLC v. Barnes Family Ranch Assoc., LLC et al., No. 2:23-CV-00927 (E.D. Cal. Mar. 28, 2024). The Court held that plaintiff had adequately alleged both direct and circumstantial evidence of a horizontal price-fixing agreement.
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Southern District Of New York Dismisses Multichannel Video Programming Distributor’s Retransmission Fee Claims For Lack Of Antitrust Standing
04/09/2024
On March 20, 2024, the Southern District of New York dismissed DirecTV’s (“Plaintiff”) claims against Nexstar Media Group, Mission Broadcasting, and White Knight Broadcasting (together, “Defendants”) for conspiring to fix prices for retransmission agreements (“RCAs”) and unlawfully sharing information in violation of Section 1 of the Sherman Act. DirecTV LLC v. Nexstar Media Group Inc. et al., Case No. 23-cv-2221, 2024 WL 1195524 (S.D.N.Y. Mar. 20, 2024) (the “Opinion”).
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Northern District Of California Grants Summary Judgment Finding That Evidence Of Valid Business Justification For Refusal-To-Deal Was Sufficient Despite Evidence Of Anticompetitive Intent
03/26/2024
On February 21, 2024, Judge Vince Chhabria of the United States District Court for the Northern District of California granted motions for summary judgment finding that presented evidence did not give rise to a viable refusal-to-deal claim because, even though there was evidence of a motivation to harm a competitor with the refusal, there was also evidence of a valid business justification. This ruling applies to two cases Simon and Simon, PC v. Align Tech., Inc., No. 3:20-cv-03754, 2022 WL 15523532 (N.D. Cal. Jun. 5, 2020), and Misty Snow v. Align Tech., Inc., 586 F. Supp. 3d (N.D. Cal. 2021), where plaintiffs, dental and orthodontic practices and orthodontic customers, asserted that defendant, a global medical device company who makes dental aligners under the Invisalign brand, violated Section 2 of the Sherman Act’s ban on attempts to monopolize a market.
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Eastern District Of Tennessee Says NCAA’s Rules Prohibiting Use Of Name, Image, And Likeness Agreements In Recruiting Student Athletes May Violate Sherman Act
03/26/2024
On February 23, 2024, Judge Clifton L. Corker of the Eastern District of Tennessee enjoined the National Collegiate Athletic Association (“NCAA”) from enforcing rules that prohibited third parties from entering into compensation agreements with student-athletes during the recruiting and transfer process as a potential violation of Section 1 of the Sherman Act. State of Tennessee and Commonwealth of Virginia v. National Collegiate Athletic Association, Case No. 3:24-cv-00033, 2024 WL 755528 (E.D. Tenn. Feb. 23, 2024).
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Third Circuit Rejects Petition For Mandamus And Backs Ruling Requiring Production Of Communications With Counsel Regarding Suit With “Pay-for-Delay” Settlement
03/26/2024
On March 11, 2024, the United States Court of Appeals for the Third Circuit denied a mandamus petition from AbbVie Inc. and Besins Healthcare Inc. (collectively “Petitioners”) seeking to overturn a district court order which required the production of documents prepared by in-house counsel pursuant to the crime-fraud exception to the attorney-client privilege. In re Abbott Lab’ys, No. 23-2412, 2024 WL 1040669 (3d Cir. Mar. 11, 2024). In its opinion, the Court cited the high bar for mandamus petitions, the lack of binding precedent with a similar fact pattern, and the alternative remedies that remain available to Petitioners.
CATEGORY : Antitrust -
Second Circuit Affirms Dismissal Of Conspiracy Claims Alleging Section One Violations In The Primary And Secondary Markets For U.S. Treasury Securities
02/21/2024On February 1, 2024, the United States Court of Appeals for the Second Circuit affirmed the dismissal of a class action alleging bid-rigging and boycott conspiracies under Section 1 of the Sherman Act. The Second Circuit found that Plaintiffs—eighteen pension funds and other investors in Treasury securities—failed to plausibly allege that Defendants—“primary dealers” in the market for U.S. Treasury securities—engaged in conspiracies to rig Treasury auctions or that a subset of these defendants participated in a group boycott in the secondary Treasuries market, because Plaintiffs failed to demonstrate the existence of an agreement with regard to either allegation.
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District Court Concludes Red Cross Is Exempt From Antitrust Claims Despite DOJ Statement To The Contrary
02/13/2024
On January 19, 2024, Judge Patti B. Saris of the United States District Court for the District of Massachusetts held that American National Red Cross (“ARC”) is not a “person” under the Sherman Act and therefore not subject to the Act’s prohibitions. Verax Biomedical Inc. v. American National Red Cross, 2024 WL 208127 (D. Mass. Jan. 19, 2024). Plaintiff, a manufacturer of tests for detecting bacterial growth in blood platelets, alleged that ARC, the largest supplier of blood platelets in the United States, leveraged its power in the market for platelets to monopolize the market for bacterial growth mitigation services. Specifically, plaintiff brought three claims under the Sherman Act: tying, exclusive dealing and attempted monopolization. But, because the Court found that the Sherman Act does not reach ARC, it dismissed all three antirust claims. Notably, the Court reached this conclusion even after the Antitrust Division of the United States Department of Justice (“DOJ”) filed a statement of intertest with the Court, arguing that ARC can indeed be sued under the Sherman Act. -
Northern District Court Rejects Medical Technology Company’s Bid To Limit Scope Of Discovery And Recoverable Damages Of Antitrust Claims Using Motion For Judgment On The Pleadings
01/31/2024On January 17, 2024, Judge Jeremy C. Daniel of the United States District Court for the Northern District of Illinois (Eastern Division) denied defendants’ motion for judgment on the pleadings brought under Rule 12(c) of the Federal Rules of Civil Procedure that attempted to limit the scope of discovery and recoverable damages of antitrust claims brought by plaintiff. Linet Americas Inc. v. Hill-Rom Holdings Inc. et al., No. 21 CV 6890, (N.D. Ill. Jan. 17, 2024).
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Fifth Circuit Largely Upholds Prior Illumina/Grail Finding But Vacates And Remands Decision Due To FTC’s Treatment Of Parties’ Rebuttal Evidence
01/23/2024
On December 15, 2023, a panel of the United States Circuit Court for the Fifth Circuit vacated and remanded the U.S. Federal Trade Commission’s (the “Commission,” when referred to as a judicial body, and “Complaint Counsel” when referred to as a complainant) April 3, 2023 Opinion and Order, which required Illumina, Inc. (the “Company”) to divest Grail, Inc. (the “Acquiree”). Although the Fifth Circuit substantially agreed with the Commission’s initial Clayton Act Section 7 analysis reversing an Administrative Law Judge’s (“ALJ”) September 2022 dismissal of the complaint, it held that the Commission made a “legal error” when it analyzed the Company’s pre-closing standardized consumer supply contract as a remedy, instead of as rebuttal evidence to the Complaint Counsel’s prima facie case. -
Sherman Act Claims Of Two Classes Of DirecTV NFL Sunday Ticket Subscribers Will Head To Trial
01/23/2024
On January 11, 2024, Judge Philip S. Gutierrez of the United States District Court for the Central District of California denied defendants’ motion for summary judgment in a case alleging that the National Football League (“NFL”) and its member clubs conspired and entered into unlawful agreements with each other and their broadcast partners to suppress the output of certain kinds of telecasts of professional football games in violation of Sections 1 and 2 of the Sherman Act. In re Nat’l Football League’s Sunday Ticket Antitrust Litig., No. ML 15-02668 PSG (SK), 2024 WL 168298 (C.D. Cal. Jan. 11, 2024). -
Northern District Of California Dismisses “Two-Way Tying” Claim With Leave To Replead
12/19/2023
On November 30, 2023, Chief Judge Richard Seeborg of the United States District Court for the Northern District of California dismissed a lawsuit alleging that Google illegally ties its mapping applications in violation of U.S. antitrust law. At issue were defendant’s application programing interfaces (“API’s”) “Maps,” “Routes,” and “Places.” Plaintiffs claimed that defendant unlawfully ties these three APIs together, by purportedly refusing to sell one service unless the purchaser also agrees to buy the other mapping services or agrees to refrain from purchasing similar services from any alternative source. According to plaintiffs, because of defendant’s alleged market power, this tying scheme allowed defendant to charge higher prices for its mapping services in violation of the Sherman Act, the Clayton Act, and California’s Unfair Competition Law. Dream Big Media Inc., et al. v. Alphabet Inc., et al., 2023 WL 8285808 (N.D. Cal. Nov. 20, 2023). -
Fifth Circuit Grants Mandamus Relief To Car Company, Clarifying That Forum Non Conveniens Doctrine Does Apply In Antitrust Cases
12/13/2023
On November 21, 2023, the United States Circuit Court for the Fifth Circuit vacated a district court ruling denying a motion to dismiss on the basis of forum non conveniens in a suit brought by an auto parts supplier against a global car company. The Fifth Circuit panel, responding to a writ of mandamus, found that the lower court had erroneously relied on outdated precedent in its determination that antitrust cases are barred from dismissal on the basis of forum non conveniens. Prevent U.S.A. Corporation v. Volkswagen AG, et al., No. 23040487 (5th. Cir. Nov. 21, 2023). -
Eleventh Circuit Holds That Evidence Requiring The Court To Make Inferences Cannot Be “Direct” Evidence Of An Antitrust Conspiracy
11/21/2023
On October 30, 2023, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s summary judgment in favor of defendants Ring Power Corporation, Ziegler, Inc., and Thompson Tractor Company, Inc., because plaintiff International Construction Products, LLC (ICP) failed to present sufficient evidence—direct or circumstantial—to establish a conspiracy to boycott under Section 1 of the Sherman Act. International Construction Products, LLC v. Ring Power Corporation, No. 22-10231, 2023 WL 7127515 (11th Cir. Oct. 30, 2023). -
Ninth Circuit Affirms Dismissal Of Sherman §1 And §2 Claims Against Technology Company, Determining Plaintiffs’ “Scattershot” Market Definition Was Inadequate
11/14/2023
On November 3, 2023, a panel of the United States Court of Appeal for the Ninth Circuit affirmed the dismissal with prejudice of claims brought by app developers (“Plaintiffs”) against a technology company (the “Company”) for alleged violations of Sections 1 and 2 of the Sherman Act.1 Coronavirus Reporter et. al., v. Apple, Inc. No. 22-15166 (9th Cir. 2023). -
ABPN Wins Dismissal Of Antitrust Challenge To Professional Certification Program
11/01/2023
On October 4, 2023, the United States District Court for the Northern District of Illinois granted with leave to amend the American Board of Psychiatry and Neurology’s (ABPN) motion to dismiss a class action alleging in part that ABPN’s tying of its professional certification to its maintenance of certification (MOC) program violated Section 1 of the Sherman Act prohibiting illegal restraints of trade or commerce. Lazarou v. Am. Bd. of Psychiatry & Neurology, No. 19-cv-01614 (N.D. Ill. Oct. 4, 2023). -
Third Circuit Says Rule Of Reason Applies To Price-Fixing Conspiracies With Horizontal And Vertical Components
10/11/2023
On August 28, 2023, a panel of the United States Court of Appeals for the Third Circuit affirmed the United States District Court for the Eastern District of Pennsylvania’s application of the rule of reason to evaluate a complex price-fixing conspiracy involving both horizontal and vertical relationships between defendants. Winn-Dixie Stores, Inc., et al. v. Eastern Mushroom Marketing Cooperative, Inc., et al., Case No. 22-2289, 2023 WL 5521221 (3d. Cir. Aug. 28, 2023).CATEGORIES : Conspiracy, Horizontal Restraints, Price-Fixing, Rule of Reason, Sherman Act § 1, Vertical Restraints -
Seventh Circuit Vacates $57 Million Attorney Fees Award In Broiler Chicken Antitrust Litigation
10/11/2023
On August 30, 2023, a panel of the United States Court of Appeals for the Seventh Circuit vacated and remanded back to the district court an award of $57.4 million in attorney fees in one of several private class actions with claims alleging unlawful price-fixing in the broiler chicken industry via exchange of data through a third-party research compiler. In re: Broiler Chicken Antitrust Litigation, Case No. 22-2889 (7th Cir. Aug. 30, 2023). -
Sixth Circuit Applies Noerr-Pennington To Private Standard-Setting Organization
10/11/2023
On September 12, 2023, the United States Court of Appeals for the Sixth Circuit affirmed the district court’s dismissal of Sherman Act claims by a supplier of wastewater treatment products against two of its competitors and a private standard-setting organization, NSF International, holding that the Noerr-Pennington doctrine protected defendants from Sherman Act liability. Geomatrix, LLC v. NSF Int’l, No. 22-1947, 2023 WL 5925977 (6th Cir. Sept. 12, 2023). -
Ranchers’ Claims Against Meat Packers Found Too Remote For Antitrust Standing
09/06/2023
On August 17, 2023, the United States District Court for the District of Minnesota dismissed a complaint brought by “cow-calf” ranchers alleging they had been injured by a conspiracy by defendant meat packers to artificially depress the price they paid for fed cattle. In re Cattle and Beef Antitrust Litigation, No. 22-3031 (D. Minn. Aug. 17, 2023). District Judge John R. Tunheim held that the ranchers, who had not sold directly to defendants, had not adequately alleged “traceability” to show that the allegedly depressed prices they received for cows and calves they sold during the alleged conspiracy period were connected to defendants’ conduct, but left the option open for plaintiffs to refile their complaint. -
D.C. Circuit Rejects FTC’s Appeal Related To Alleged Anticompetitive Conduct Stemming From Endo And Impax’s Patent Settlement Agreement, Holding It Was No Different From A Permissible Exclusive Licensing Agreement
09/06/2023
On August 25, 2023, a panel of the United States Court of Appeals for the D.C Circuit affirmed the district court’s dismissal of the FTC’s complaint against Endo Pharmaceuticals Inc. (“Endo”), Impax Laboratories LLC (“Impax”) and their parent companies (collectively “Appellees”) for alleged violations of sections 1 and 2 of the Sherman Act. FTC v. Endo Pharmaceuticals Inc., et al., Dkt. No. 22-05137 (D.C. Cir. Aug. 25, 2023). The suit stemmed from a patent litigation settlement agreement in 2017, which the FTC alleged was an impermissible exclusive licensing arrangement. The D.C. Circuit held that the FTC failed to state a claim because the complaint lacked allegations establishing that the 2017 Agreement extended beyond the rights granted to Impax under settled law and precedent. -
Direct Purchasers Defeat Merck’s Motion For Summary Judgment In Monopolization Case Involving Mumps Vaccine Products
08/16/2023
On July 27, 2023, Judge Chad Kenney of the United States District Court for the Eastern District of Pennsylvania granted in part and denied in part Merck’s motion for summary judgment in relation to a class action alleging that direct purchasers of Merck’s mumps vaccines were overcharged as a result of Merck’s alleged unlawful monopolization of the mumps vaccine market in violation of Section 2 of the Sherman Act and New Jersey and New York state laws. In re Merck Mumps Vaccine Litig., No. 12-3555 (E.D. Pa. July 27, 2023). Plaintiffs allege that Merck’s submissions to the FDA and its labels for its mumps vaccines contained false and misleading information in relation to the amount of live virus in its products. According to plaintiffs, this led to competitors being forced to comply with unusual standards to receive FDA approval to market their products, and specifically, it precluded GSK from obtaining a license to sell its vaccine for mumps, measles and rubella (MMR vaccine) and caused plaintiffs to be overcharged.CATEGORIES : Antitrust Immunity, Antitrust Injury, Monopolization, Sherman Act § 2, Summary Judgment -
Putative Class Action Plaintiffs Defeat NCAA’s Motion To Dismiss Sherman Act Claim
08/08/2023
On July 27, 2023, Judge William Shubb of the United States District Court for the Eastern District of California denied the National Collegiate Athletic Association’s (NCAA) motion to dismiss a putative class action alleging in part that the NCAA and its member schools violated Section 1 of the Sherman Act by conspiring not to compensate coaches defined as volunteer coaches under NCAA regulations. Smart v. NCAA, No. 22-cv-02125 (E.D. Cal. July 27, 2023). -
Ninth Circuit Green Lights Flextronics’ Antitrust Suit Against Panasonic
08/01/2023
On July 21, 2023, the United States Court of Appeals for the Ninth Circuit reversed an order from the U.S. District Court for the Northern District of California dismissing Flextronics International USA Inc.’s (“Flextronics”) antitrust lawsuit alleging that Panasonic and other Japanese electrical inductor companies conspired to fix and stabilize inductor prices. -
Federal Judge Narrows Scope Of Broiler Chicken Antitrust Litigation In Anticipation Of Trial
07/11/2023
On June 30, 2023, U.S. District Judge Thomas Durkin for the Northern District of Illinois partially granted defendants’ motion for summary judgment in a consolidated antitrust case alleging unlawful price-fixing in the broiler chicken industry. In re Broiler Chicken Antitrust Litig., 1:16-cv-08637 (N.D. Ill. 2023). Plaintiffs claim defendant broiler chicken producers raised the price of broiler chickens in violation of Section 1 of the Sherman Act by unlawfully agreeing to reduce the supply of chicken between 2008 and 2009 and 2011 and 2012. The Court granted summary judgment in favor of seven defendants but denied the motions by 11 other defendants and allowed those claims to proceed to trial, citing differences in the amount of evidence expressly involving each defendant. -
Northern District Of Illinois Grants Motion To Dismiss In Antitrust Action
07/06/2023
On June 14, 2023, Judge Virginia M. Kendall of the United States District Court for the Northern District of Illinois dismissed without prejudice consolidated private antitrust actions brought against Information Systems Audit and Control Association, Inc. (“ISACA”). Riley v. Info. Sys. Audit & Control Assoc., No. 22 C 4465, 2023 WL 3997075 (N.D. Ill. June 14, 2023). Plaintiffs asserted claims under Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act alleging that defendant monopolized or conspired to monopolize the market for certain business process appraisals using defendant’s proprietary methods. The Court granted defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court held that plaintiffs failed to allege a relevant product market because the alleged market only consisted of defendant’s product, and a company’s own product generally “do[es] not comprise a relevant product market.” -
District Of Columbia Holds Later Complaint In Rail Freight Fuel Surcharge MDL Not Time-Barred
07/06/2023
On June 21, 2023, the United States District Court for the District of Columbia denied defendant railroads’ motion to dismiss an allegedly time-barred complaint brought by a single plaintiff in a multidistrict litigation alleging a conspiracy to increase the price of rail freight transport. In re: Rail Freight Fuel Surcharge Antitrust Litigation (No. II), 20-mc-00008-BAH, ECF No. 916, (D.D.C. June 21, 2023) (the “Opinion”). -
State Antitrust Enforcement Actions Exempt From Multi-District Litigations
06/13/2023
On June 5, 2023, the Judicial Panel on Multidistrict Litigation (the “Panel”) held that recent changes to 28 U.S.C. § 1407(g), extending a limitation on multi-district consolidation to state-attorney-general complaints, applied to already pending cases and thus precluded the state-led antitrust actions against Google from proceeding with other cases in a multidistrict litigation. -
Banks Win Dismissal Of U.S. Silver Price-Fixing Litigation
06/01/2023
On May 22, 2023, Judge Caproni of the United States District Court for the Southern District of New York dismissed with prejudice a long-running litigation brought by plaintiff traders who in 2014 accused certain financial institutions of conspiring to periodically suppress a daily silver benchmark price set in London in violation of Section 1 of the Sherman Act. In re London Silver Fixing, Ltd., Antitrust Litigation, 2023 WL 3582198 (S.D.N.Y. May 22, 2023). Plaintiffs had accused the financial institutions of manipulating silver prices from 2007 to 2013. -
Third Circuit Affirms Denial Of Motion To Certify Indirect Purchaser End-Payor Class In Niaspan Antitrust MDL
06/01/2023
On May 4, 2023, the United States Court of Appeals for the Third Circuit unsealed its April 24, 2023, Opinion upholding the Eastern District of Pennsylvania’s denial of a motion to certify an indirect purchaser class of insurance plans and other end-payors allegedly injured by a “reverse payment” settlement that allegedly delayed the entry of a generic competitor to the brand-name prescription drug, Niaspan. In Re: Niaspan Antitrust Litigation, No. 21-2895 (3d Cir. Apr. 24, 2023). -
Broadway Producer’s Antitrust Claims Against Actors’ Union Barred By Federal Exemption
05/09/2023
On April 14, 2023, the United States District Court for the Southern District of New York dismissed a suit brought by Garth Drabinsky, an award-winning Broadway producer, against an actors’ union, the Actors’ Equity Association (“AEA”), for allegedly blacklisting him in violation of Sections 1 and 2 of the Sherman Act. The Court dismissed the suit with prejudice, holding that Drabinsky’s federal antitrust claims were barred by the statutory exemption for unions. Drabinsky v. Actors’ Equity Association, No. 22-CV-8933-LGS (S.D.N.Y.). -
Amazon Wins Motion To Dismiss Antitrust Suit Because Plaintiffs Lacked Antitrust Injury
05/09/2023
On April 20, 2023, Judge Ricardo Martinez of the United States District Court for the Western District of Washington dismissed with leave to amend a putative class action alleging that Amazon’s linking of favorable website product placement for third-party sellers with the third-party sellers’ purchases of Amazon’s fulfillment services was an unlawful tying arrangement under Sections 1 and 2 of the Sherman Act. Hogan v. Amazon.com, Inc., No. 21-996 (W.D. Wash. Apr. 20, 2023). Plaintiffs were members of Amazon Prime, an Amazon program offering free or reduced shipping on purchases through Amazon, among other benefits, in exchange for an annual fee. Plaintiffs alleged that third-party sellers who purchase Amazon’s fulfillment services receive a “Prime Badge” and favorable product placement on Amazon’s website in the “Buy Box,” the section of the product page through which plaintiffs claimed 90% of Amazon.com consumer purchases are made.CATEGORIES : Antitrust Injury, Antitrust Standing, Monopolization, Sherman Act § 1, Sherman Act § 2, Tying -
FTC Orders Biotechnology Company To Divest Cancer Detection Test Maker
04/18/2023
On April 3, 2023, the United States Federal Trade Commission (the “Commission”) voted unanimously to issue an Opinion and Order requiring Illumina, Inc. (the “Company”), to divest GRAIL, Inc. (together the “Parties”). The Opinion reversed the Administrative Law Judge’s (the “ALJ”) Initial Decision of September 1, 2022, which had dismissed the complaint brought by Commission staff alleging that the acquisition would reduce innovation and would likely harm competition. -
Western District Of Washington Trims Some Claims, Keeps Others, In Most-Favored-Nation Litigation Against Amazon
04/18/2023
On March 23, 2023, the United States District Court for the Western District of Washington partially granted and partially denied Amazon’s motion to dismiss a putative consumer class action alleging Amazon’s policies have prevented third-party sellers from offering lower prices on other e-commerce platforms. Frame-Wilson, et al. v. Amazon.com, Inc., No. 2:20-cv-00424-RAJ, 2023 WL 2632513 (W.D. Wash. Mar. 23, 2023). -
Central District Of California Nixes Streaming Platform’s Cartel Claims Against Popular Comedians
04/18/2023
On April 5, 2023, Judge Mark C. Scarsi of the Central District of California dismissed with prejudice a streaming service’s antitrust counterclaims alleging that various well-known comedians and their licensing agents conspired to fix prices and attempted to monopolize the market for spoken-word comedic audio content for failure to allege facts showing either an agreement in restraint of trade in violation of Section 1 of the Sherman Act or the market power necessary to state a claim under Section 2. Yellow Rose Productions Inc. v. Pandora Media LLC, No. 2:22-cv-00809 (C.D. Cal, Apr. 5, 2023). -
Northern District Of California Dismisses Class Action Suit Against Social Networking Company Without Prejudice, Rejecting An Argument That Failing To Share Data Constitutes Anticompetitive Conduct
03/28/2023
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. -
Second Wave Of Resignations Following The Department Of Justice’s Increased Scrutiny Of Interlocking Directorates
03/24/2023
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. -
Second Circuit Rules Exchange Traders Are Efficient Enforcers With Antitrust Standing In Precious Metals Benchmarking Case
03/24/2023
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. -
Second Circuit Finds Binding Trade Agreement Itself Sufficient To Allege Concerted Action
03/24/2023
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. -
TV Broadcasters Fail To Compel Production From Ad Agencies And Other Plaintiffs Regarding Antitrust Standing And Market Definition
02/28/2023
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. -
Department Of Justice And State Attorneys General Sue Google For Alleged Monopolization Of Digital Advertising Technologies
02/28/2023
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. -
FTC Loses Preliminary Injunction Bid In Challenge Of Technology Company’s Acquisition Of Virtual Reality Fitness App Maker
02/14/2023
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). -
D.C. District Court Sets Aside DOJ Civil Investigative Demand Barred By Prior Settlement Agreement
02/14/2023
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.CATEGORY : DOJ -
Northern District of California Dodges Ninth Circuit Precedent, Allows Putative Consumer Class Action To Proceed With Some California State Law Antitrust Claims
02/03/2023
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.CATEGORY : Federal Trade Commission -
Fifth Circuit Finds That Lawyer Committed Legal Malpractice By Filing Frivolous Antitrust Claims
02/03/2023
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). -
Sixth Circuit Affirms Dismissal Of Aspiring NBA Player Agent’s Suit Alleging NBPA And NBA Conspired To Prevent Him From Becoming An Agent
01/18/2023
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 (6th 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. -
Bad Blood Between Customers And Ticketmaster, Taylor Swift Fans See Red, Hoping These Things Will Change
12/13/2022
On December 2, 2022, dozens of Taylor Swift fans sued Ticketmaster in California state court for, among other things, alleged state-law antitrust violations. -
Alleged Price-Fixing Among Turkey Product Suppliers Through Industry Reporting And Trade Association Activity Survives Second Motion To Dismiss
12/13/2022
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. -
Fourth Circuit Affirms Dismissal Of Broker’s Suit Alleging Partners Conspired To Cut It Out Of Lucrative Military Procurement Deal
11/22/2022
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). -
Maryland District Court Denies DOJ’s Attempt To Halt Merger Based On Competition For A Single NSA Contract
11/01/2022
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).