District Court Concludes Red Cross Is Exempt From Antitrust Claims Despite DOJ Statement To The Contrary
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
On 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).
Sherman Act Claims Of Two Classes Of DirecTV NFL Sunday Ticket Subscribers Will Head To Trial
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
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
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
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
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
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
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).
Seventh Circuit Vacates $57 Million Attorney Fees Award In Broiler Chicken Antitrust Litigation
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
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
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
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.
Putative Class Action Plaintiffs Defeat NCAA’s Motion To Dismiss Sherman Act Claim
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).
Federal Judge Narrows Scope Of Broiler Chicken Antitrust Litigation In Anticipation Of Trial
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.
Banks Win Dismissal Of U.S. Silver Price-Fixing Litigation
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.
Broadway Producer’s Antitrust Claims Against Actors’ Union Barred By Federal Exemption
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
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.
Western District Of Washington Trims Some Claims, Keeps Others, In Most-Favored-Nation Litigation Against Amazon
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
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
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 Circuit Rules Exchange Traders Are Efficient Enforcers With Antitrust Standing In Precious Metals Benchmarking Case
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
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.
Department Of Justice And State Attorneys General Sue Google For Alleged Monopolization Of Digital Advertising Technologies
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.
Sixth Circuit Affirms Dismissal Of Aspiring NBA Player Agent’s Suit Alleging NBPA And NBA Conspired To Prevent Him From Becoming An Agent
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.
Alleged Price-Fixing Among Turkey Product Suppliers Through Industry Reporting And Trade Association Activity Survives Second Motion To Dismiss
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.
Maryland District Court Denies DOJ’s Attempt To Halt Merger Based On Competition For A Single NSA Contract
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).
Fifth Circuit Rejects Hospital Operator’s Antitrust Claims Against Dominant Medical Provider In Shreveport, Louisiana
On September 19, 2022, the United States Court of Appeals for the Fifth Circuit held that the operator of a hospital in Shreveport, Louisiana had failed to adequately plead Sherman Act § 1 and § 2 claims against the dominant medical provider in the Shreveport market. BRFHH Shreveport, LLC v. Willis-Knighton Medical Center, No. 21-30622 (5th Cir. Sep. 19, 2022).
Sixth Circuit Affirms Dismissal Of Antitrust Lawsuit Against Football Helmet Manufacturers
On September 9, 2022, the United States Court of Appeals for the Sixth Circuit affirmed a district court’s dismissal of an antitrust lawsuit filed against defendants National Operating Committee on Standards for Athletic Equipment (“NOCSAE”) and a group of football helmet manufacturers including Riddell, Inc., Kranos Corp., and Xenith, LLC. Hobart-Mayfield, Inc. v. Nat’l Operating Comm. on Standards for Athletic Equip., No. 21-1441 (6th Cir. Sept. 9, 2022). The Court ruled that plaintiff Hobart-Mayfield, Inc.’s (Mayfield) complaint alleging antitrust violations in the alleged football helmet market failed to state a claim for plausible relief and was properly dismissed by the trial court upon defendants’ Rule 12(b)(6) motion.
United States District Court For The District Of Kansas Declines To Adopt The Co-Conspirator Exception To The Illinois Brick Direct Purchaser Rule In EpiPen Antitrust Litigation
On August 8, 2022, Judge Daniel Crabtree of the United States District Court for the District of Kansas declined to apply the co-conspirator exception to the Illinois Brick direct purchaser rule in a case alleging a conspiracy to delay the entry of generic competition to a patented epinephrine auto injector (“EpiPen”), dismissing antitrust claims against defendant EpiPen manufacturers while allowing the claims against the defendant distributors from whom plaintiffs directly purchased EpiPens to proceed. KPH Healthcare Services, et al. v. Mylan N.V., et al., No. 20-2065-DDC-TJJ (D. Ka. July 8, 2022).
Northern District Of California Certifies Class Of Direct Purchasers In Latest Development In Long-Running Cathode Ray Tube Price-Fixing Saga
On August 1, 2022, Judge John S. Tigar of the United States District Court for the Northern District of California certified a class of direct purchasers in a long-running antitrust action alleging that manufacturers of cathode ray tubes conspired to fix prices in violation of Section 1 of the Sherman Act. The Court certified the class after concluding that plaintiffs’ claims were typical of the class and the sole defendant who has not settled with plaintiffs failed to identify any individualized issues that would predominate over issues common to the proposed class.
Round 2: Fifth Circuit Dismisses Antitrust Claims Against Standard-Essential Patent Holders, Withdrawing Prior Opinion Finding Plaintiff Lacked Standing
On June 21, 2022, the United States Court of Appeals for the Fifth Circuit affirmed a decision dismissing Plaintiff Continental Automotive Systems’ claims challenging the alleged refusal of certain standard-essential patent holders and their licensors to issue the supplier patents on fair, reasonable, and nondiscriminatory (“FRAND”) terms under Section 1 and 2 of the Sherman Act. Continental Automotive Sys., Inc. v. Avanci, L.L.C., No. 20-11032 (June 21, 2022).
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.