Second Circuit Finds District Court Failed To Properly Consider Two-Sided Markets In Travel Platform Suit, Voids $15M Antitrust Verdict
On September 11, 2019, the United States Court of Appeals for the Second Circuit, in a panel consisting of Judges Robert D. Sack, Debra Ann Livingston and Denny Chin, affirmed in part, reversed in part and vacated in part a lower court’s decision in an antitrust action related to contracts for a travel technology platform. US Airways, Inc., for American v. Sabre Holdings Corporation, No. 17-960 (2d Cir. Sept. 11, 2019). The Second Circuit held that the district court had erred in failing to find the relevant market to be two-sided as a matter of law. The case was remanded for a new trial on the substantive question of whether certain contractual provisions in the business agreements between the parties were unlawful restraints of trade in violation of Sections 1 and 2 of the Sherman Act.
Seventh Circuit Allows Beer Conspiracy Allegations One More Shot
On September 5, 2019, Judge Kenneth Ripple, writing for a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit, partially reversed a lower court’s dismissal of antitrust claims alleging that two brewers conspired to restrict a competitor’s exports of beer to Ontario, Canada. Mountain Crest SRL, LLC v. Anheuser-Busch InBev SA/NV, No. 18-2327, 2019 WL 4198809 (7th Cir. Sept. 5, 2019). The Seventh Circuit held that agreements with a Canadian government-controlled entity (the Liquor Control Board of Ontario, or “LCBO”) were immune from antitrust scrutiny under the act of state doctrine. However, the Court held that claims of an alleged conspiracy between competitors to strong-arm the LCBO into entering into the agreements did not implicate the act of state doctrine and were improperly dismissed.
In Case Against Major Technology Corporation, United States Supreme Court Holds Mobile Phone Owners Have Antitrust Standing To Bring Claims Against Operator Of Application Store
On May 13, 2019, the Supreme Court of the United States affirmed a Ninth Circuit decision reversing a California District Court’s dismissal of plaintiffs’ antitrust claims on grounds that plaintiffs could not sue defendant because they were not direct purchasers from defendant. The 5-4 majority opinion written by Justice Kavanaugh held that plaintiffs—owners of mobile phones produced and sold by defendant—were direct purchasers because they bought applications directly from defendant’s application store. Thus, as injured buyers under Section 4 of the Clayton Act, plaintiffs were not barred from suing defendant on claims that defendant monopolized the retail market for the sale of its phone applications and exploited this position to overcharge consumers. Apple Inc. v. Pepper, No. 17-204 (U.S. May 13, 2019).
United States District Court For The District Of Delaware Dismisses Allegations Of Anticompetitive Drone Pricing
On March 18, 2019, Judge Leonard P. Stark of the U.S. District Court for the District of Delaware dismissed allegations of predatory pricing in the “prosumer” drones market by DJI Technology Co., Ltd. and DJI Europe B.V. (collectively “DJI”). SZ DJI Technology Co., Ltd. v. Autel Robotics USA LLC, No. 16-706-LPS (D. Del. Mar. 18, 2019). The Court ruled in favor of the DJI plaintiffs, who were defendants in the antitrust counterclaims in the suit, finding that defendants Autel Robotics USA LLC and Autel Aerial Technology Co., Ltd. (collectively “Autel”) did not allege sufficient facts for a plausible predatory pricing claim. In particular, the Court found that Autel failed to show that DJI’s prices were below cost.
D.C. Circuit Holds That DOJ Failed To Prove AT&T/Time Warner Merger Is Anticompetitive
On February 26, 2019, a panel of the D.C. Circuit Court of Appeals affirmed the district court’s denial of the government’s request for a permanent injunction against the merger of AT&T and Time Warner. The opinion by Judge Judith Rodgers, joined by Judges Robert Wilkins and David Sentelle, rejected the government’s argument that the district court misunderstood and misapplied economic principles and erroneously disregarded testimony by key government witnesses. United States v. AT&T, Inc., Docket No. 1:17-cv-02511 (D.C. Cir. 2019).
Ninth Circuit Reinstates $53 Million Jury Award Against Supplier In “Refusal to Deal” Monopolization Action
On February 8, 2019, a three-judge panel of the United States Court of Appeals for the Ninth Circuit reversed the district court and reinstated a jury verdict that found a cigar manufacturer liable for attempted monopolization under Section Two of the Sherman Act for various actions it took or refused to take in connection a contract manufacturing relationship with a competitor. Trendsettah USA, Inc. v. Swisher Int’l, Inc., No. 16-56823 (9th Cir. Feb. 8, 2019). The decision is notable in allowing the imposition of Sherman Act liability for conduct that amounted largely to alleged breaches of, and a refusal to renew, a supply contract, and illustrates that potential claims under Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), still pose litigation risks for firms with significant market shares that terminate profitable relationships with their competitors.
Oregon District Court Allows Claim Against Association Of Colleges And Universities To Proceed And Accepts Harm To Defendant’s Members As Evidence Of Antitrust Injury
On November 28, 2018, Judge Marco A. Hernández of the United States District Court for the District of Oregon, on remand from the Ninth Circuit, reversed its prior grant of a motion to dismiss and held that plaintiff — which brought antitrust conspiracy claims against a non-profit corporation made up of 549 member colleges — sufficiently demonstrated antitrust injury by alleging harm to the member colleges. CollegeNET, Inc. v. The Common Application, Inc., No. 3:14-CV-00771-HZ (D. Or. Nov. 28, 2018).
United States District Court For The Southern District Of Iowa Grants Motion To Dismiss Antitrust Claims Against PepsiCo Based On Alleged “Price Squeeze”
On September 15, 2017, Judge James E. Gritzner of the United States District Court for the Southern District of Iowa granted a motion to dismiss antitrust claims filed against PepsiCo Inc. and its bottler-distributor subsidiary by an independent bottling company. Mahaska Bottling Co. v. PepsiCo Inc., No. 4:16-cv-00114-JEG (S.D. Iowa Sept. 15, 2017). In so doing, Judge Gritzner rejected the bottler’s proffered “price squeeze” theory and its other allegations of exclusionary conduct under Section 2 of the Sherman Act, as well as its proffered market definition, and found that Mahaska had failed to allege harm to competition or, relatedly, antitrust injury. The Court also dismissed claims brought under the Robinson-Patman Act and Iowa state antitrust statutes. While this case does not break new ground, it is useful in demonstrating again the difficulties that a distributor faces in asserting antitrust claims against a supplier that the distributor believes is seeking to end the relationship, even with unusual “in perpetuity” exclusive arrangement at issue here.