No “Sham,” No Foul: Mattress Companies’ Agency Petitions Immune From Antitrust Liability, Finds District Of Utah
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.
Northern District Of Illinois Rejects Home Buyer’s Bid To Challenge Real Estate Broker Commission Rules As Anticompetitive
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).
Third Circuit Holds That A Concessions Vendor Does Not Have Antitrust Standing To Challenge An Exclusive Agreement Between An Airport And A Third-Party Beverage Company
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.
First Circuit Holds That Concerted Action By Independent Contractor Jockeys Seeking Better Pay Is Protected Conduct Under The Labor-Dispute Exemption
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 (1st 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.
Ninth Circuit Revives SmileDirect Antitrust Suit
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).
Auto-Parts Supplier Lacks Standing To Bring Antitrust Claims Against Standard-Essential Patent Holders And Licensors Of Vehicular Wireless Connection Technology
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).
Ninth Circuit Affirms Dismissal Of Antitrust Allegations In DRAM Pricing Case
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.
U.S. District Court For The Southern District Of Texas Dismisses Claims Against Three Largest U.S. Producers Of Steel
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.
New Tennessee Case Alleges “Archrivals” Google And Facebook Secretly Conspired To Dominate The Worldwide Digital Advertising Market
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.
Collusion In Telescope Market Was Clear To See, Finds Ninth Circuit
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.
Supreme Court Denies Certiorari In State Hospital System Antitrust Immunity Case
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.
Fifth Circuit Blocks Topgolf Antitrust Suit For Lack Of Antitrust Injury
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 (5th Cir. Nov. 15, 2021).
Seventh Circuit Affirms Dismissal Of Section 1 Complaint Against Medical Board For Failure To Plead Facts Supporting Conspiracy Allegations
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).
Tech Start-Up’s Monopoly Suit Moves Forward Against Utilities Management Power Player
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.
DOJ Says Agreement Not To Recruit And To Suppress Wages In Las Vegas Case Is Clearly Illegal
On October 1, 2021, the U.S. Department of Justice (“DOJ”) filed a response in Nevada federal court opposing a motion to dismiss from defendants VDA OC LLC and its former regional manager Ryan Hee, in a case in which they are charged with agreeing with another unnamed contractor not to recruit or hire from one another, and to suppress wages for Las Vegas school nurses. The DOJ stated that this is a simple case arguing that agreeing to allocate nurses is market division, and fixing nurses wages is price fixing, both of which have long been considered per se unlawful under the antitrust laws.
Ninth Circuit Reverses Certification Of A Nationwide Indirect Purchaser Class Due To State Law Differences And Its Prior Decision In FTC v. Qualcomm
On September 29, 2021, the United States Court of Appeals for the Ninth Circuit reversed a district court’s order certifying a nationwide class of up to 250 million people. The Ninth Circuit concluded that a common issue of law does not predominate because the laws of other several states apply, not just California’s Cartwright Act and Unfair Competition Law. In re Qualcomm Antitrust Litig., No. 19-15159, 2021 WL 4448713 (9th Cir. Sept. 29, 2021). The indirect purchaser plaintiffs are consumers who allege that Qualcomm Incorporated (“Qualcomm”) violated federal antitrust laws and California’s Cartwright Act and Unfair Competition Law by engaging in certain corporate policies regarding their licensing of standard essential patents (“SEPs”) and related sales of modem chips. The Ninth Circuit held that California’s choice of law rules precluded class certification because states without an Illinois Brick repealer statute, which often authorize indirect purchasers to bring antitrust damages suits, “have a clear interest in applying their laws to class members” and to apply only California law would “allow California to set antitrust enforcement policy for the entire country.”
Northern District Of California Finds That Antitrust Claims Against Technology Platform Fail While California’s Unfair Competition Law Supports Limited Injunction
On September 10, 2021, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California issued her post-trial decision in Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR (N. D. Cal. 2021). Plaintiff claimed that defendant’s developer policies violated Sections 1 and 2 of the Sherman Act and the Cartwright Act, California’s analogue to the Sherman Act, as well as California’s Unfair Competition Law (“UCL”). The Court, in a 185-page opinion, found that plaintiff did not meet its burden to show that defendant’s policies violated the antitrust laws and denied plaintiff the broad injunction that would have required substantial changes to defendant’s App Store business. However, the Court held that plaintiff was entitled to a limited injunction under the UCL as to defendant’s anti-steering restrictions. The Court also granted contract damages for defendant’s counterclaims against plaintiff.
Eastern District Of Virginia Certifies Class Of Cholesterol Drug End Payors
On August 20, 2021, Judge Rebecca Smith of the United States District Court for the Eastern District of Virginia certified a class of end-payor plaintiffs (“EPPs”) alleging that defendant pharmaceutical companies (“defendants”) entered into a reverse payment agreement that delayed generic competition to the branded cholesterol drug Zetia in violation of Section 1 of the Sherman Act. In re Zetia (Ezetimibe) Antitrust Litig., MDL No. 2:18-md-2836 (E. D. Va. 2021). This case is part of a multidistrict litigation against defendants, and Judge Smith’s certification decision was in the face of a Fourth Circuit decision two weeks prior that vacated her decision to certify a different class of plaintiffs.
Ninth Circuit Rejects Sherman Act Challenge To Non-Solicitation Provision In Contract Between Traveling Nurse Staffing Firms
On July 19, 2021, the United State Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of defendant/appellee healthcare staffing firm, holding that the non-solicitation provision in defendant’s contract with plaintiff/appellant to provide traveling nurse services did not amount to a naked restraint on trade because it was ancillary to the overall pro-competitive agreement between the parties and plaintiff had not shown harm to competition. Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., No. 20-55679, 2021 WL 3671384 (9th Cir. Aug. 19, 2021).
Northern District Of California Finds Exclusive Real Estate Service Is Improper Plaintiff To Enforce Antitrust Claims Against Competitor Trade Association
On August 16, 2021, Judge Vince Chhabria of the United States District Court for the Northern District of California dismissed, with prejudice, a complaint alleging that the dominant national real estate listing service violated Section 1 of the Sherman Act by prohibiting realtors from marketing a property to the public unless they also list the property on the service. Top Agent Network, Inc. v. National Ass’n of Realtors, No. 20-cv-03198-VC (N.D. Cal. Aug. 16, 2021). The Court found that, although plaintiff—a competing real estate listing service—may have alleged an antitrust violation, plaintiff did not have antitrust standing to bring the claim.
Second Circuit Takes A Second Look At Chinese Vitamin C Price-fixing Case And Again Affirms Dismissal
On August 10, 2021, the Second Circuit, in a 2-1 decision, affirmed the dismissal—for the second time—of price-fixing claims against a pair of Chinese vitamin C exporters, after the Supreme Court had remanded it for further consideration. Animal Science Prods., et al., v. Hebei Welcome Pharma. Co. Ltd., et al., 13-4791-cv (2nd Cir. Aug 10, 2021). Following the Supreme Court’s directive to “carefully consider but not conclusively defer” to submissions from the Chinese Ministry of Commerce, a three-judge panel of the Second Circuit agreed that the case should, nevertheless, still be dismissed on international comity grounds. This decision—involving the Chinese government’s first appearance in a U.S. court—was unusual for an antitrust case in that there was no real dispute that the alleged anticompetitive conduct occurred. Instead, the question centered on “whether Chinese law required the Chinese sellers’ conduct.”
Southern District Of Illinois Refuses To Certify A Class Alleging That Jimmy John’s No-Poach Clauses Suppressed Wages
On July 23, 2021, the United States District Court for the Southern District of Illinois denied a named plaintiff’s motion for class certification against Defendants Jimmy John’s Franchise, LLC and Jimmy John’s Enterprises, LLC on the basis that he did not meet the factors required to certify a class—among which included his failure to show that his claims where typical of the claims of the potential class members he purported to represent. Conrad v. Jimmy John’s Franchise, LLC, No. 18-CV-00133-NJR (S.D. Ill. July 23, 2021).
Fast-Food Franchise Cases Hash Out Standard Of Review For Labor Market Restrictions
The parties in two separate cases involving labor market restrictions submitted supplemental briefing within days of one another following the Supreme Court’s ruling in the much-anticipated NCAA v. Alston case on June 21, 2021. The unanimous opinion, written by Justice Neil Gorsuch with a full concurrence by Justice Brett Kavanaugh, was levied to support arguments by both sets of defendants and plaintiffs on the appropriate standard of review in each of their cases. This battle is being fought in a broader context of increased activity by the Department of Justice in pursuing “no-poach” agreements between employers, and President Biden’s July 9th Executive Order, which specifically addressed labor non-compete agreements.
Supreme Court Sustains Injunction Against NCAA Rules Limiting Education-Related Benefits Received By Student Athletes
On June 21, 2021, the United States Supreme Court issued a decision in a long running and closely watched dispute between the National Collegiate Athletic Association, along with 11 Division I conferences, (together, the “NCAA” or “Defendants”) and a class of current and former Division I football and basketball players claiming that NCAA restrictions on their compensation violated Section 1 of the Sherman Act (together, the “student athletes” or “Plaintiffs”). NCAA v. Alston, et al., No. 20–512, 594 U.S. ___ (2021). The Court’s unanimous decision, written by Justice Neil Gorsuch, upheld a district court order enjoining NCAA limits placed on education-related benefits provided by member schools to student athletes and permitting limits on compensation and benefits related to athletic performance.
Northern District Of Illinois Terminates Claims Against Bank In Antitrust Suit
On June 1, 2021, Judge Thomas Durkin of the United States District Court for the Northern District of Illinois dismissed a complaint alleging that a bank conspired with other defendants in the poultry industry in violation of Section 1 of the Sherman Act. In re Broilers Chicken Antitrust Litig., 16-8637 (N.D. Ill. June 1, 2021).
Fifth Circuit Finds Sherman Act Conspiracy Claims Survive Statute Of Limitations Challenge
On May 18, 2021, the United States Court of Appeals for the Fifth Circuit reversed a district court’s dismissal of claims by the Academy of Allergy & Asthma in Primary Care and United Allergy Services (“plaintiffs”) that Quest Diagnostics (“Quest”) violated §§ 1 and 2 of the Sherman Act. Acad. of Allergy & Asthma in Primary Care v. Quest Diagnostics, Inc., No. 20-50179, 2021 WL 1976666 (5th Cir. May 18, 2021). The district court originally dismissed the claims because Quest did not commit any overt acts within the four-year statute of limitations period. On appeal, the Court found that an email from Quest’s co-conspirator referencing a meeting with a Quest employee provided sufficient evidence of an overt act to extend the statute of limitations period.
Northern District Of California Shuts Down App Developers’ Antitrust Suit
On April 26, 2021, Judge Beth Labson Freeman of the United States District Court for the Northern District of California dismissed a complaint alleging that Facebook violated Section 2 of the Sherman Act by removing certain application interfaces that plaintiffs relied on for their mobile applications. Reveal Chat Holdco LLC, et al. v. Facebook, 5:20-cv-00363 (N.D. Cal. Apr. 26, 2021). Plaintiffs alleged that the application programming interfaces (“APIs”) were central to their ability to function and that the removal of these APIs by Facebook in 2015 was part of a scheme to harm applications that were competitive or potentially competitive with Facebook. In dismissing the complaint for a second time and with prejudice, the Court concluded that plaintiffs’ “entire theory of liability is based on completed acts by Facebook beyond the limitations period” and that their claims were therefore time-barred.
California District Court Rules Antitrust Claims Against Hollywood Foreign Press Don’t Make Final Cut
On March 23, 2021, Judge Stanley Blumenfeld, Jr. of the United States District Court for the Central District of California dismissed amended antitrust claims brought by two entertainment journalists against the Hollywood Foreign Press Association (“HFPA”). Flaa v. Hollywood Foreign Press Ass’n, No. 2:20-cv-06974-SB (C.D. Cal. Mar. 23, 2021).
Ninth Circuit Reverses Class Certification Based On District Court’s Failure To Resolve Factual Issues Relating To Uninjured Class Members
On April 6, 2021, the United States Court of Appeals for the Ninth Circuit vacated a district court order certifying three classes in a multi-district antitrust case alleging a price-fixing conspiracy by producers of packaged tuna, finding that the district court erred in determining that plaintiffs had satisfied to the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). Olean Wholesale Grocery Coop v. Bumble Bee Foods, No. 19-56514 (9th Cir. Apr. 6, 2021). Specifically, the Court concluded that the district court abused its discretion in declining to resolve whether plaintiffs’ proposed use of statistical evidence to establish classwide impact swept a substantial number of uninjured purchasers into the putative class. A class cannot be certified, the Court held, when it contains more than a “de minimis” number of uninjured purchasers.
NCAA Athletes’ Case Goes To Highest Court In The Land: The Supreme Court Hears Argument On Sherman Act Challenge To NCAA Eligibility Rules On Compensation For Student-Athletes
On March 31, 2021, the United States Supreme Court heard oral argument in the consolidated cases National Collegiate Athletic Associate v. Alston
(No. 20-520) and American Athletic Conference v. Alston
(No. 20-512). These cases were previously covered as part of our preview of the current Supreme Court term
. Plaintiffs below – NCAA student-athletes – challenged the NCAA’s limits on education-related benefits to student athletes as unreasonable restraints on competition for the student-athletes’ services that violated Section One of the Sherman Act. After a lengthy trial, the district court agreed and entered an injunction in favor of plaintiffs. The Ninth Circuit affirmed, finding that the district court had properly applied the rule of reason to the challenged rules, that the rules had significant anticompetitive effects, and that plaintiffs had established that less restrictive alternatives to the existing rules were viable in that they were “virtually as effective” in achieving the procompetitive purposes of the joint venture. The case-specific issue presented to the Supreme Court is whether the Ninth Circuit erred in affirming the district court’s judgment that the NCAA eligibility rules regarding compensation of student-athletes violated the Sherman Act. But the case may have broader implications in how courts analyze a joint venture’s restraints on competition under the rule of reason, including how courts should evaluate claims that a defendant joint venture could have or should have used less restrictive means to accomplish its procompetitive goal.
Southern District Of New York Dismisses Competitor’s Sherman Act Claims Against Fintech Company For Lack Of Antitrust Standing
On March 31, 2021, Judge Mary Kay Vyskocil of the United States District Court for the Southern District of New York dismissed a ten-count complaint alleging that defendant financial technology companies, Advent Software Inc. and its parent company, SS&C Technologies Holdings Inc. (collectively “defendant”), violated, inter alia, Sections 1 and 2 of the Sherman Act by refusing to renew a software license with one of its competitors and engaging in so-called “exclusive dealing arrangements” that allegedly foreclosed the competitor from the marketplace. Arcesium, LLC v. Advent Software, Inc., 1:20-cv-04389 (MKV) (S.D.N.Y. Mar. 31, 2021). The Court found that plaintiff Arcesium LLC (“plaintiff”), a technology company that licensed defendant’s portfolio accounting software, but competed with them in providing related “post-trade solutions” (technology and services used to provide middle- and back-office support for investment funds and fund administrators), failed to adequately plead antitrust standing.
Maryland District Court Refuses To Send Poultry Workers’ Claims To Chopping Block In Wage Fixing Class Action
On March 10, 2021, Judge Stephanie Gallagher of the United States District Court for the District of Maryland denied defendants’ motions to dismiss antitrust claims brought by a putative class of poultry workers asserting that poultry processing companies unlawfully exchanged compensation data and conspired to fix and depress employee wages. Jien v. Perdue Farms, Inc., No. 1:19-CV-2521-SAG (D. Md. March 10, 2021).
Third Circuit Dismisses Sherman Act And RICO Claims Against Certification Board
On February 25, 2021, the United States Court of Appeals for the Third Circuit affirmed a district court’s ruling that the American Board of Internal Medicine (“defendant”) did not violate Sections 1 and 2 of the Sherman Act or the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Kenney v. Am. Bd. of Internal Med., No. 20-1007, 2021 WL 732715 (3d Cir. Feb. 25, 2021). Among other things, the Third Circuit found that a group of physicians (“plaintiffs”) did not plausibly allege that defendant impermissibly tied together initial physician certifications with the regular renewals of the same certifications. These regular renewals are known as maintenance of certification (“MOC”). The Third Circuit also found that plaintiffs did not plausibly allege that defendant utilized monopoly power to require plaintiffs to purchase MOCs.
Central District Of California Forecloses Realtors’ Antitrust Suit
On February 3, 2021, Judge John W. Holcomb of the United States District Court for the Central District of California dismissed a complaint alleging that real estate listing services conspired with a national realtors association to exclude a competitor from the market. The PLS.com, LLC v. The National Association of Realtors, et al., 2:20-cv-04790 (C.D. Ca. Feb. 3, 2021). Plaintiff, a listing service for off-market properties, alleged that three real estate listing services—Bright MLS, Inc. (“BrightMLS”), Midwest Real Estate Data, LLC (“Midwest RED”), and California Regional Multiple Listing Service, Inc. (“Cal Regional MLS”)—conspired with The National Association of Realtors (“NAR”) to eliminate them from the market in violation of Section 1 of the Sherman Act and California’s Cartwright Act.
Revised Market Definition For Patents Still Fails To State Plausible Claims Against Investment Manager
On January 6, 2020, Judge Edward M. Chen of the United States District Court for the Northern District of California granted defendants’ motion to dismiss. Intel Corp., et al. v. Fortress Investment Group LLC, et al., No. 19-cv-07651-EMC (N. D. Ca. 2021). Plaintiffs alleged that defendants conspired to aggregate and assert essential patents against plaintiffs, which harmed competition in 13 alleged markets for patented technologies. Plaintiffs asserted this conduct violated Sherman Act § 1, Clayton Act § 7, as well as unfair competition law under state and FTC statutes. The Court dismissed plaintiffs’ complaint with prejudice as to the FTC Act claim as well as the other claims as they related to several product markets. It dismissed without prejudice claims as to the other markets to the extent plaintiffs could further amend their claims.
Defendants Cannot Crack Peanut Farmers’ Class Certification Motion
On December 1, 2020, Judge Raymond A. Jackson of the United States District Court for the Eastern District of Virginia granted plaintiff peanut farmers’ motion for class certification against defendant peanut shelling companies. D&M Farms, et al. v. Birdsong Corp., et al., No. 2:19-cv-463 (E. D. Va. 2020). Plaintiffs alleged that defendants conspired to lower the price of peanuts since as early as January 2014 in violation of Sherman Act § 1. The court certified plaintiffs’ proposed class after finding the facts submitted by plaintiffs and plaintiffs’ expert analysis satisfied the class certification requirements.
Central District Of California Dismisses Sherman Act Claims Involving Alleged Los Angeles Outdoor Advertising Market
On November 9, 2020, the United States District Court for the Central District of California granted defendant Outfront Media Inc.’s (“Outfront”) motion to dismiss claims that Outfront engaged in an illegal conspiracy to stifle competition and maintain “monopolistic control” over the alleged market for outdoor advertising (billboards) in Los Angeles. Karraa v. City of Los Angeles, No. 2:20-cv-07036-SVW-AGR (C.D. Cal. Nov. 9, 2020). The Court found that plaintiffs, including rival outdoor advertising company Virtual Media Group, Inc. (“VMG”) and the ground lessors of billboard sites, did not plead facts to establish a violation of either Section 1 or Section 2 of the Sherman Act.
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.
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.
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.
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.
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).
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).
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.
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).
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.
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.