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).
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.
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).
Ninth Circuit Green Lights Flextronics’ Antitrust Suit Against Panasonic
On July 21, 2023, the United States Court of Appeals for the Ninth Circuit reversed an order from the U.S. District Court for the Northern District of California dismissing Flextronics International USA Inc.’s (“Flextronics”) antitrust lawsuit alleging that Panasonic and other Japanese electrical inductor companies conspired to fix and stabilize inductor prices.
Federal Judge Narrows Scope Of Broiler Chicken Antitrust Litigation In Anticipation Of Trial
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.
Bad Blood Between Customers And Ticketmaster, Taylor Swift Fans See Red, Hoping These Things Will Change
On December 2, 2022, dozens of Taylor Swift fans sued Ticketmaster in California state court for, among other things, alleged state-law antitrust violations.
Alleged Price-Fixing Among Turkey Product Suppliers Through Industry Reporting And Trade Association Activity Survives Second Motion To Dismiss
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.
District Judge Tosses States’ Disgorgement Claim Under Section 16 Of Clayton Act In Pricing Fixing Litigation
On June 7, 2022, Judge Cynthia M. Rufe of the United States District Court of the Eastern District of Pennsylvania partially granted and partially denied a motion to dismiss a claim for disgorgement under Section 16 of the Clayton Act brought by state attorney generals against 20 generic drug manufacturers alleging price fixing in generic drugs. In re Generic Pharmaceuticals Pricing Antitrust Litigation, 16-MDL-2724 (E.D. Pa. June 7, 2022). The Court dismissed the state enforcers’ disgorgement claim, holding that Section 16 of the Clayton Act does not allow for relief for past conduct. The Court denied the motion as to plaintiffs’ claims for prospective, non-monetary equitable relief, concluding that plaintiffs had parens patriae standing to pursue injunctive relief on behalf of their citizens, but not damages.
Northern District Of Illinois Certifies Class In Alleged Broiler Price Fixing Conspiracy
On May 27, 2022, in In Re Broiler Chicken Antirust Litigation, No. 16 C 8637, 2022 WL 1720468, at *10 (N.D. Ill. May 27, 2022), Judge Thomas M. Durkin of the United States District Court for the Northern District of Illinois certified classes of direct purchasers, indirect purchasers, and end-user consumers (together, “plaintiffs”) in a Sherman Act lawsuit alleging that major broiler chicken producers conspired to limit chicken production to boost prices.
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.
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.
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.
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.”
Illinois District Court Finds Chicken Purchasers’ Conspiracy Claims Against Bank Are For The Birds
On June 1, 2021, Judge Thomas M. Durkin of the United States District Court for the Northern District of Illinois granted defendant’s motion to dismiss price-fixing claims brought by a group of chicken buyers against a large bank operating in the agribusiness industry. In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. June 1, 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.
Second Circuit Rejects The “Nullity Doctrine” In Benchmarking Antitrust Case
On March 17, 2021, the Second Circuit vacated a district court’s dismissal of a putative class antitrust action, holding that the pre-lawsuit dissolution of the named plaintiffs does not render the action a legal nullity and deprive the court of subject matter jurisdiction, provided the assignee of their claims had standing to prosecute the claims as the real party in interest when the suit was filed and joins or substitutes into the action within a reasonable time. Fund Liquidation Holdings LLC v. Bank of Am. Corp., 2021 WL 1010596 (2d Cir. Mar. 17, 2021).
District Court Grants Summary Judgment Against Indirect Purchasers In Aluminum Price-Fixing Case
On February 17, 2021, Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York granted summary judgment to defendants that traded commodities and derivatives, and defendants that owned and operated warehouses, in a consolidated action, dismissing claims by aluminum purchasers. In Re Aluminum Warehousing Antitrust Litigation, 13 MD 2481 (PAE) (S.D.N.Y. Feb. 17, 2021). Plaintiffs alleged defendants had conspired to fix the price of aluminum in a distribution channel in which plaintiffs (with one exception) did not participate, but that the conspiracy had the incidental effect of inflating the cost of plaintiffs’ contracts with third parties, most notably aluminum producers. Plaintiffs asserted that even though they did not participate directly in the allegedly restrained distribution channel, they could pursue a claim that defendants violated Section 1 of the Sherman Act. The Court held that plaintiffs were not efficient enforcers, and therefore lacked “antitrust standing” to bring the claims, because they did not contract directly with defendants, their claimed harms were speculative, and their claims risked exposing defendants to duplicative liability.
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.
California District Court Cuts Cord On Subcontractor’s Antitrust Claims Against Cable Provider
On November 17, 2020, Judge Troy Nunley of the United States District Court for the Eastern District of California granted summary judgment for Comcast, dismissing claims brought by a cable installation subcontractor alleging that Comcast engaged in unlawful anticompetitive activity in violation of state antitrust laws. Clear Connection Corp. v. Comcast Cable Commc’ns. Mgmt., LLC, No. 2:12-cv-02910-TLN-DB (E.D. Cal. Nov. 17, 2020).
Third Time’s Not A Charm: California District Court Dismisses Consolidated Class Action Against German Automakers
On October 23, 2020, District Judge Charles Breyer of the United States District Court for the Northern District of California dismissed with prejudice Sherman Act claims in two consolidated complaints brought by consumers (indirect purchasers or IPPs) and auto-dealers (direct purchasers or DPPs) (together Plaintiffs). The complaints alleged anticompetitive standardization of diesel emissions control systems and price-fixing by the five leading German car manufacturers in the United States—Audi AG, BMW AG, Daimler AG, Porsche AG, and Volkswagen AG (Defendants) for models made between 2006 through 2016. In re: German Automotive Manufacturers Antitrust Litigation, MDL No. 2796 CRB (JSC) (N.D.Cal. Oct. 23, 2020). Ultimately, the Court found that Plaintiffs failed to allege a "relevant market" and that Defendants had power within that market. The Court had granted Defendants’ motions against the same Plaintiffs on two prior occasions and thus granted the present motion with prejudice so that Plaintiffs would not get a fourth bite at the apple.
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).
Seventh Circuit Resuscitates Medical Supply Suit, Ruling Plaintiffs Have Standing Under Illinois Brick
On March 5, 2020, the U.S. Court of Appeals for the Seventh Circuit vacated and remanded the Southern District of Illinois’ dismissal of a suit brought by healthcare providers against entities in the distribution chain for medical devices they purchased. Marion Healthcare, LLC v. Becton Dickinson & Co., 18-3735 (7th Cir. Mar. 5, 2020). Judge Diane P. Wood, writing for a unanimous panel, ruled that the district court erred in deciding that plaintiffs lacked antitrust standing to bring conspiracy claims under Section 1 of the Sherman Act.
Central District Of California Allows Sherman Act Claims Against Performing Rights Organization To Proceed But Strikes Claims For Monetary Relief
On February 13, 2020, Judge Terry Hatter of the United States District Court for the Central District of California issued an order denying Defendant Global Music Rights LLC (GMR)’s motion to dismiss antitrust claims based on its licensing practices, but striking all claims for restitution or disgorgement of profits. Radio Music License Committee Inc. v. Global Music Rights LLC, 19-cv-03957 (C.D. Cal. February 13, 2020).
Southern District Of California Dismisses Price-Fixing Claims Against Owners Of Major Tuna Purveyor
On January 28, 2020, the United States District Court for the Southern District of California dismissed antitrust claims alleging that a private equity fund holding an ownership interest in Bumble Bee Foods LLC (“Bumble Bee”) participated in a conspiracy with major tuna companies to fix the prices of their packaged seafood products. Judge Janis L. Sammartino granted defendants’ motion to dismiss claims against Lion Capital LLP (“Lion Capital”) and Big Catch Cayman LP (“Big Catch”) under FRCP 12(b)(6) with prejudice, determining that plaintiffs failed to state plausible claims for relief against these defendants under §1 of the Sherman Act. In Re: Packaged Seafood Products Antitrust Litigation, 15-MD-2670 JLS (MDD) (S.D. Cal. Jan. 28, 2019).
Southern District of New York Dismisses Putative Antitrust Class Action Finding Plaintiffs Failed To Plead Defendants Transacted Business Of A “Substantial Character” In New York
On October 4, 2019, District Judge Edgardo Ramos of the United States District Court for the Southern District of New York dismissed a putative antitrust class action against certain defendants, foreign banks, and individuals for lack of personal jurisdiction and improper venue. In re SSA Bonds Antitrust Litig., No. 16 CIV. 3711 (ER) 2019 WL 4917608 (S.D.N.Y. Oct. 4, 2019). Plaintiffs alleged that the defendant financial institutions and certain employees operating as dealers in the U.S. dollar SSA bond market conspired to fix the price of SSA bonds in violation of Section 1 of the Sherman Act. Several dealer defendants (the “Foreign Dealer Defendants”) and four of their employees (the “Individual Defendants”) moved to dismiss for lack of personal jurisdiction and venue. The Court granted the motion, finding that plaintiffs had not satisfied the venue provision of the Clayton Act because plaintiffs failed to show that the Foreign Dealer Defendants transacted business of a “substantial character” in New York and failed to establish a nexus for purposes of personal jurisdiction “between the alleged business transactions in New York and the claims of this antitrust case.”
Seventh Circuit Closes Chapter On Creditor Price Fixing Claims Against Bankruptcy Software Provider
On September 5, 2019, the U.S. Court of Appeals for the Seventh Circuit affirmed a decision by the Northern District of Illinois dismissing Illinois state antitrust claims brought by a bankruptcy creditor against the bankruptcy trustee’s software services provider. McGarry & McGarry, LLC v. Bankr. Mgt. Sols., Inc., 18-2619, 2019 WL 4197546 (7th Cir. Sept. 5, 2019). Plaintiff alleged that defendant entered into a price-fixing conspiracy with other bankruptcy software providers. Judge Diane S. Sykes, writing for a unanimous panel, ruled that plaintiff lacked antitrust standing because it did not meaningfully participate in the relevant market for bankruptcy software services and, accordingly, its alleged injury was too remote from the claimed price-fixing violation.
Southern District Of New York Dismisses Claims In Mexican Government Bonds Antitrust Suit
On September 30, 2019, Judge Paul Oetken of the United States District Court for the Southern District of New York dismissed claims that defendants, a group of ten financial institutions and related entities, had conspired to manipulate the market for certain debt securities issued by the Mexican government. In re Mexican Government Bonds Antitrust Litigation, 18-CV-2830 (S.D.N.Y. Sept. 30, 2019). Plaintiffs, a group of pension funds, alleged that defendants rigged the auction process used by the Mexican government to issue bonds and conspired to manipulate the pricing of the bonds on the secondary market, in violation of Section 1 of the Sherman Act. According to plaintiffs, the conspiracy artificially depressed auction prices, artificially inflated secondary market prices, and fixed bid-ask spreads, resulting in harm to the pension funds in the United States.
Second Circuit Reverses District Court’s Dismissal Of Metal Purchasers’ Antitrust Claims
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
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
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
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
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
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
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
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
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
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
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
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
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
06/26/2018On 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
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.
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
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.
United States District Court For The Northern District Of Illinois Denies Motion To Dismiss Antitrust Claims Brought Against Nation’s Largest Industrial Poultry Producers
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.
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
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.
Southern District Of New York Dismisses Oil Price Manipulation Claims Based On Failure To Adequately Allege Antitrust Injury Linked To Defendants’ Alleged Conduct
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.