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  • Second Circuit Reverses District Court’s Dismissal Of Metal Purchasers’ Antitrust Claims
     
    09/04/2019

    On August 27, 2019, the Second Circuit Court of Appeals vacated a grant of summary judgment by the United States District Court for the Southern District of New York, which had dismissed the claims of a group of aluminum buyers on grounds they did not have standing in an antitrust suit alleging a conspiracy to artificially inflate aluminum prices.  Judge Pierre N. Leval, writing for the panel, disagreed with the District Court’s dismissal, ruled that plaintiffs had adequately pleaded antitrust injury, and remanded the case for further proceedings. Eastman Kodak Co. v. Henry Bath LLC, 16-4230, 2019 WL 4018285 (2d Cir. Aug. 27, 2019).
  • District of Columbia Circuit Pulls The Brake On Class Certification Bid In Railroad Price-Fixing Suit
     
    08/27/2019

    On August 16, 2019, the United States Court of Appeals for the District of Columbia Circuit affirmed a lower court’s decision to deny class certification in an antitrust action involving some of the country’s largest freight railroad companies.  In Re: Rail Freight Fuel Surcharge Antitrust Litigation, MDL No. 1869, (D.C. Cir. Aug. 16, 2019).  Plaintiffs alleged that defendants conspired to fix rate-based fuel surcharges in violation of Section 1 of the Sherman Act, Section 4 of the Clayton Act and various state laws.  The panel, which consisted of Chief Judge Merrick Garland and Judges Judith Rogers and Gregory Katsas, held that class certification was inappropriate because plaintiffs’ regression analysis did not establish predominance.
  • United States District Court For The Southern District Of California Certifies Big Tuna Classes
     
    08/06/2019

    On July 30, 2019, U.S. District Court Judge Janis Sammartino of the Southern District of California certified three separate classes of tuna purchasers alleging price-fixing by producers of packaged tuna:  (1) direct-purchaser plaintiffs, (2) commercial-food-preparer plaintiffs, and (3) end-payer plaintiffs.  In re Packaged Seafood Products Antitrust Litigation, No. 15-MD-2670, July 30, 2019.
  • Eastern District Of Pennsylvania Dismisses Claims Against Generic Drug Distributor In Multi-District Price-Fixing Suit
     
    07/23/2019

    On June 26, 2019, Judge Cynthia M. Rufe of the Eastern District of Pennsylvania dismissed claims that McKesson Corporation and McKesson Medical Surgical, Inc. (collectively the “Company”) engaged in a conspiracy to fix prices of generic pharmaceuticals.  Marion Diagnostic Center, LLC, et al.  v. McKesson Corporation, et al., No.  16-MD-2724 (June 26, 2019).  The Court held that the plaintiffs had not plausibly alleged that the Company’s conduct as a generic drug distributor was the result of an agreement with co-defendant generic drug manufacturers. 
  • Southern District Of California Denies Motion To Compel Attorney Communications In Price Fixing Action
     
    05/14/2019

    On May 6, 2019, U.S. Magistrate Judge Mitchell D. Dembin of the United States District Court for the Southern District of California denied plaintiffs’ motions (i) to compel production of attorney-client communications and work product and (ii) to compel additional testimony in a multidistrict litigation over alleged price-fixing in the canned tuna industry.  In re Packaged Seafood Prods. Antitrust Litig., No. 15-md-2670 (S.D. Cal. May 6, 2019).  In denying the motions, the Court found that the general counsel for one of the defendants (the “Company”) did not waive privilege regarding analysis conducted by the Company’s outside counsel when he testified during his deposition that outside counsel had reviewed the discovery in the case and opined that there was no evidence of price-fixing other than regarding one product—5-ounce cans of tuna.
    CATEGORY: Price-Fixing
  • District Of New Jersey Denies Building Materials Manufacturer’s Motion For Summary Judgment In Alleged Price Discrimination Lawsuit
     
    04/16/2019

    On April 1, 2019, Judge William J. Martini of the United States District Court for the District of New Jersey denied Firestone Building Products Company LLC’s motion for summary judgment on price discrimination claims brought by a building materials distributor.  Marjam Supply Co. v. Firestone Bldg. Prod. Co., LLC, No. 2:11-cv-7119, 2019 WL 1451105 (D.N.J. Apr. 2, 2019).  Plaintiff alleged that defendant, a manufacturer of building materials, offered its roofing products to several of plaintiff’s competitors (“Favored Distributors”) at terms more favorable than those offered to plaintiff through a variety of non-uniform rebate, discount and financing programs in violation of Sections 2(a) and 2(d) of the Robinson-Patman Act.  Plaintiff claimed that due to the disparate terms offered by the manufacturer, Favored Distributors were able to offer the manufacturer’s products to plaintiff’s major customers at lower prices than plaintiff and that it lost significant business as a result.
  • The Eastern District Of Michigan Holds That An Arbitration Clause Does Not Apply To Direct Purchasers In A Private Suit Alleging Price-Fixing
     
    02/12/2019

    On January 29, 2019, the Honorable Judge Marianne O. Battani of the United States District Court for the Eastern District of Michigan denied without a hearing Defendant KYB Corporation’s and KYB America’s (collectively, the “Company”) motion to dismiss all federal antitrust claims because those claims were subject to an arbitration clause.  In re Shock Absorbers, Master File No. 12-md-02311 (E.D. Mich. Jan. 29, 2019).  In so finding, the Court denied the Company’s 30(b)(1) motion and concluded that the Court had subject matter jurisdiction.
  • Northern District Of California Rejects Claim Of Bi-Coastal Conspiracy To Eliminate Restaurant Tipping
     
    01/15/2019

    On January 7, 2019, Judge Jeffrey S. White of the Northern District of California ruled on a motion to dismiss allegations that certain high-end restaurant groups in New York and California had conspired to terminate the practice of tipping in restaurants, in violation of Section 1 of the Sherman Act and various state laws.  Judge White held that plaintiff’s claims were too speculative to sustain an inference that defendants could — or had any reason to — conspire, and dismissed all claims.  Brown v. 140 NM LLC et al., No. 4:17-cv-05782 (N.D. Cal. Jan. 7, 2019).
  • Seventh Circuit Affirms District Court’s Grant Of Summary Judgment Of Class Action Case Alleging Price-Fixing In Containerboard Market
     
    12/18/2018

    On December 7, 2018, the United Stated Court of Appeals for the Seventh Circuit, in an opinion by Chief Judge Diane P. Wood, affirmed a district court’s decision to grant summary judgment in favor of two defendants remaining in a class action alleging price-fixing by manufacturers of containerboard.  Kleen Products LLC, et al. v. Georgia-Pacific LLC, et al., No. 17-2808 (7th Cir. Dec. 7, 2018).  The Court rejected plaintiffs’ contention that the existence of an anticompetitive agreement between manufacturers could be inferred based primarily on allegedly correlated price increases and reductions in supply.
  • Southern District Of New York Dismisses Benchmark Manipulation Claims Against Banks Not Involved In Setting Benchmark, But Allows Claims To Proceed Against Panel Banks
     
    10/16/2018
     

    On October 4, 2018, Judge Alvin K. Hellerstein of the United States District Court for the Southern District of New York dismissed, with prejudice, claims that certain banks engaged in an industry-wide conspiracy to manipulate various Singapore financial benchmarks in violation of Section 1 of the Sherman Act, while simultaneously ruling that claims against other defendants that were involved in setting the benchmark could proceed.  The Court also found that it did not have jurisdiction over defendant banks that were not members of the panel that set the financial benchmark at issue, and therefore dismissed plaintiffs’ claims against those defendants.  Frontpoint Asian Event Driven Fund v. Citibank, 16 Civ. 5263 (S.D.N.Y. Oct. 4, 2018).

  • Southern District Of New York Dismisses Silver Benchmark Manipulation And Silver Trading Conspiracy Claims
     

    07/31/2018


    On July 25, 2018, Judge Valerie E. Caproni of the United States District Court for the Southern District of New York dismissed with prejudice claims that certain banks participated in a conspiracy to (a) manipulate the London Silver Fixing, and (b) engage in manipulation of silver spot markets and futures markets in violation of Section 1 of the Sherman Act. The Court held that plaintiffs failed to plausibly allege that these banks—which did not participate in the London Silver Fixing—were part of the alleged conspiracy to manipulate that benchmark. The Court also dismissed other conspiracy claims on antitrust standing grounds, based on the remoteness of the injuries allegedly suffered by plaintiffs and the dangers of disproportionate recovery that this remoteness would present. The Court also dismissed claims that the alleged conduct violated the Commodity Exchange Act (“CEA”) and justified recovery under an unjust enrichment theory.
     

  • Illinois District Court Dismisses Complaint Alleging Conspiracy To Restrict Supply And Increase The Price Of Intravenous Saline Solution
     
    07/17/2018

    On July 5, 2018, Judge John J. Tharp, Jr. of the United States District Court for the Northern District of Illinois granted defendant intravenous saline (“IV saline”) bag manufacturers’ motion to dismiss a complaint filed by a purported class of IV saline purchasers alleging that defendants conspired to restrict the output and raise the price of IV saline solution in violation of Section 1 of the Sherman Act.  Washington County Health Care Auth., Inc., et al. v. Baxter Int’l Inc., et al., No. 16 CV 10324 (N.D. Ill. July 5, 2018).  Plaintiffs alleged that defendants conspired to create an artificial shortage of IV saline solution by initiating a series of bogus voluntary recalls to deplete inventories of health care facilities in an effort to increase prices.  Defendants moved to dismiss the claims, arguing the complaint did not adequately allege the existence of an agreement to restrain the supply and increase the price of IV saline.
  • Eighth Circuit Dismisses Federal Antitrust Claims In Propane Action, Finding Plaintiffs Failed To Allege Injury Or Ongoing Conspiracy By Defendants
     
    07/10/2018

    On June 22, 2018, a three-judge panel on the Eighth Circuit Court of Appeals affirmed in part a district court decision granting summary judgment for defendants and dismissing antitrust claims under Section 1 of the Sherman Act, as well as the antitrust laws of 23 states and the District of Columbia, against two propane gas companies. Mario Ortiz et al. v. Ferrellgas Partners et al., No. 16-4086 (8th Cir. June 22, 2018).
  • Jury In The Eastern District Of Pennsylvania Finds No Liability For Egg Producers In Alleged Price Fixing Suit
    06/26/2018
    On June 14, 2018, a jury in the Eastern District of Pennsylvania found three egg producers not liable for violating Section 1 of the Sherman Act based on an alleged conspiracy to restrict the supply of egg-laying hens and artificially inflate the price of eggs. In re Processed Eggs Prods. Antitrust Litig., 2:08-md-02002 (E.D. Pa. June 14, 2018).
  • Ninth Circuit Overturns Dismissal Of Antitrust Suit Against City’s Ordinance Allowing App-Based Drivers To Collectively Bargain
     
    05/22/2018

    On May 11, 2018, the United States Court of Appeals for the Ninth Circuit Court partially reversed the district court’s dismissal of claims brought by the U.S. Chamber of Commerce, on behalf of ride-share app companies, that a Seattle ordinance allowing for-hire drivers to bargain collectively violated and was preempted by the antitrust laws.  In an opinion by Circuit Judge Milan D. Smith, the Ninth Circuit held that the state-action defense did not protect the ordinance from preemption by the Sherman Act because:  (1) the State of Washington had not clearly articulated and affirmatively expressed a state policy authorizing for-hire drivers to fix the prices of their service fees when using a ride-share app; and (2) the active-supervision requirement of the state-action defense was not met.

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  • U.S. District Court For The Northern District Of California Rejects Class Certification Of Indirect Purchasers In Lithium Ion Battery Price-Fixing Litigation Based On Plaintiffs’ Failure To Address Focal Point Pricing 
     
    03/27/2018

    On March 5, 2018, Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California denied class certification for a group of indirect purchasers alleging price fixing in the sale of lithium batteries, holding that the plaintiffs failed to demonstrate that they had a reliable method of proving pass-through of the alleged overcharges on a class-wide basis.  In so holding, the Court relied primarily on the plaintiffs’ expert’s failure to account for the effects of “focal point pricing,” the practice of pricing consumer products at certain attractive retail price points, for example, $799 or $1299. 

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  • United States District Court For The Northern District Of Illinois Denies Motion To Dismiss Antitrust Claims Brought Against Nation’s Largest Industrial Poultry Producers
     
    12/05/2017

    On November 20, 2017, Judge Thomas M. Durkin of the United States District Court for the Northern District of Illinois denied a motion to dismiss antitrust claims filed against the nation’s largest industrial poultry producers.  In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637 (N.D. Ill. Nov. 20, 2017).  In a lengthy opinion, Judge Durkin concluded that the totality of plaintiffs’ allegations of competitor communications, changes from historical practice, and arguably parallel restrictions in output, as well as the nature and operation of the commodity market at issue, were sufficient to raise a plausible inference of a conspiracy to restrict output and artificially inflate raise prices, and therefore to survive a motion to dismiss.

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  • United States Court Of Appeals For The Third Circuit Affirms Summary Judgment For Defendant Based On Plaintiff’s Failure To Show “Plus Factors” That Made Finding Of Conspiracy More Likely Than Not In Oligopolistic Market For The Sale Of Titanium Dioxide
     
    10/10/2017

    On October 2, 2017, a divided panel of the United States Court of Appeals for the Third Circuit released a ruling affirming the decision by U.S. District Judge Richard G. Andrews of the District of Delaware to grant summary judgment to the defendant E. I. Du Pont De Nemours & Co. on a Sherman Act, Section One claim alleging price fixing in the sale of titanium dioxide on the grounds that the plaintiff had not shown sufficient evidence of an “actual agreement to fix prices.” Valspar Corp. v. E. I. Du Pont De Nemours and Co., No. 16-1345 (3d Cir. Sept. 14, 2017).  Writing for the majority, Judge Hardiman rejected much of the plaintiffs’ proffered evidence of conspiracy because it established no more than conscious parallelism and interdependent conduct in an oligopolistic market, and was therefore insufficient to prove the essential element of an agreement as required by Section One.  Also lacking, the Court found, was evidence of a “traditional conspiracy,” i.e., “proof that the defendants got together and exchanged assurances of common action or otherwise adopted a common plan even though no meetings, conversation, or exchanged documents are shown.” Id. at 11-12.  This case illustrates the Third Circuit’s continuing practice of requiring a searching analysis of both the particular evidence and the market context in evaluating ambiguous evidence of conspiracy in Sherman Act cases, and reinforces the importance of carefully examining the relevant Circuit law in making forum choices.   

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  • Southern District Of New York Dismisses Oil Price Manipulation Claims Based On Failure To Adequately Allege Antitrust Injury Linked To Defendants’ Alleged Conduct   
     
    06/08/2017

    ​On June 8, 2017, Judge Andrew L. Carter of the United States District Court for the Southern District of New York granted defendant energy companies’ motion to dismiss claims brought by two putative classes of derivatives traders and landowners, finding that plaintiffs failed to sufficiently allege that they suffered an antitrust injury linked to defendants’ alleged conduct in the relevant markets.  In re: North Sea Brent Crude Oil Futures Litigation, Case No. 1:13-md-02475 (S.D.N.Y. Jun. 8, 2017).  Plaintiffs, a putative class of landholding interests in U.S. oil-producing property and a putative class of futures and derivatives traders, alleged that defendants conspired to intentionally manipulate Brent crude oil prices and the prices of Brent crude oil futures and derivatives contracts traded on the New York Mercantile Exchange (“NYMEX”) and the Intercontinental Exchange (“ICE Futures Europe”) in violation of the Sherman Act (as well as other federal and state laws).  Brent crude is crude oil pulled from the North Sea region of Europe.  In dismissing the Sherman Act claims, the district court found that plaintiffs had not suffered any antitrust injury, and therefore did not have standing as plaintiffs under Section 4 of the Clayton Act.   

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