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).
Eleventh Circuit Reverses District Court Dismissal On Shotgun Pleading And Standing Grounds
On August 26, 2022, the United States Court of Appeals for the Eleventh Circuit reversed and remanded a district court’s dismissal of an antitrust lawsuit filed against Defendants Google LLC, YouTube Inc., and Alphabet Inc. on shotgun pleading and antitrust standing grounds. Inform Inc. v. Google LLC, No. 21-13289 (11th Cir. Aug. 26, 2022). The Court ruled that plaintiff Inform Inc.’s amended complaint, while lengthy and perhaps unclear, sufficiently put defendants on notice of their alleged antitrust violations in the markets for online advertising and that plaintiff met the Eleventh Circuit’s two-prong test for pleading antitrust standing.
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).
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).
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.
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).
Eleventh Circuit Affirms That Seller Does Not Have Antitrust Claims Against Buyer For Post-Closing Conduct That Avoided Earnout Payment
On January 4, 2022, the United States Court of Appeals for the Eleventh Circuit affirmed a district court’s dismissal of an antitrust suit filed by the sellers of a healthcare risk adjustment service company. Ekbatani et al. v. Cmty. Care Health Network, LLC et al., No. 21-12322 (11th Cir. Jan. 4, 2022). The sellers alleged that the buyer, who was a direct competitor, violated federal antitrust laws by intentionally reducing the company’s revenue after closing. That conduct, allegedly, resulted in the sellers’ loss of an “earnout” payment that was contingent upon the company’s performance post-closing. The three-judge panel affirmed that plaintiffs, the previous owners of the acquired business, did not have antitrust standing to bring their Clayton Act claim.
Northern District Of California Finds Exclusive Real Estate Service Is Improper Plaintiff To Enforce Antitrust Claims Against Competitor Trade Association
On August 16, 2021, Judge Vince Chhabria of the United States District Court for the Northern District of California dismissed, with prejudice, a complaint alleging that the dominant national real estate listing service violated Section 1 of the Sherman Act by prohibiting realtors from marketing a property to the public unless they also list the property on the service. Top Agent Network, Inc. v. National Ass’n of Realtors, No. 20-cv-03198-VC (N.D. Cal. Aug. 16, 2021). The Court found that, although plaintiff—a competing real estate listing service—may have alleged an antitrust violation, plaintiff did not have antitrust standing to bring the claim.
Southern District Of New York Dismisses Competitor’s Sherman Act Claims Against Fintech Company For Lack Of Antitrust Standing
On March 31, 2021, Judge Mary Kay Vyskocil of the United States District Court for the Southern District of New York dismissed a ten-count complaint alleging that defendant financial technology companies, Advent Software Inc. and its parent company, SS&C Technologies Holdings Inc. (collectively “defendant”), violated, inter alia, Sections 1 and 2 of the Sherman Act by refusing to renew a software license with one of its competitors and engaging in so-called “exclusive dealing arrangements” that allegedly foreclosed the competitor from the marketplace. Arcesium, LLC v. Advent Software, Inc., 1:20-cv-04389 (MKV) (S.D.N.Y. Mar. 31, 2021). The Court found that plaintiff Arcesium LLC (“plaintiff”), a technology company that licensed defendant’s portfolio accounting software, but competed with them in providing related “post-trade solutions” (technology and services used to provide middle- and back-office support for investment funds and fund administrators), failed to adequately plead antitrust standing.
Maryland District Court Refuses To Send Poultry Workers’ Claims To Chopping Block In Wage Fixing Class Action
On March 10, 2021, Judge Stephanie Gallagher of the United States District Court for the District of Maryland denied defendants’ motions to dismiss antitrust claims brought by a putative class of poultry workers asserting that poultry processing companies unlawfully exchanged compensation data and conspired to fix and depress employee wages. Jien v. Perdue Farms, Inc., No. 1:19-CV-2521-SAG (D. Md. March 10, 2021).
Northern District Of Texas Rejects Walker Process And Sham Patent Litigation Antitrust Claims For Lack Of Standing Based On Failure To Show Causation
On April 13, 2020, Judge Reed O’Connor of the United States District Court for the Northern District of Texas granted defendants’ motion for summary judgment on plaintiffs’ monopolization claim based on plaintiffs’ failure to present substantial evidence that fraud on the Patent Office and subsequent sham litigation were a material cause of plaintiffs’ alleged lost profits. Chandler et al v. Phoenix Services LLC, 19-cv-00014 (N.D. Tex. April 13, 2020). With regard to plaintiffs’ claims for fees and costs expended in defending the sham litigation, the Court found that these claims were barred by the statute of limitations.
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.
Ninth Circuit Affirms Dismissal Of ODD Price-Fixing Suit
On November 20, 2019, the United States Court of Appeals for the Ninth Circuit affirmed summary judgment dismissing indirect purchaser plaintiffs’ claims that defendants, electronics manufacturers, conspired to fix the prices of optical disc drives (“ODD”) and computers with ODD. Indirect Purchaser Class v. Samsung Electronics Co. Ltd. et al., No. 1:18-cv-15058 (9th Cir. 2019). The Ninth Circuit rejected plaintiffs’ claims, because their economic expert’s analysis seeking to show that the fixed prices were passed on to consumers was not supported by the record evidence.
Second Circuit Affirms Dismissal Of Pharmaceutical Antitrust Action, Holding The FTAIA’s Import Exclusion Is Effects-Based, Not Intent-Based
On November 5, 2019, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (Panel) affirmed the U.S. District Court for the Southern District of New York’s dismissal of antitrust claims brought against manufacturers of cancer treatment drugs. Biocad JSC v. F. Hoffmann-La Roche Ltd., No. 17-3486-cv (2d Cir. Nov. 5, 2019). Plaintiff, a private pharmaceutical company based in Russia, alleged that defendants conspired to block plaintiff from entering the U.S. market for cancer treatment drugs in violation of Sections 1 and 2 of the Sherman Act and other statutes. In affirming the district court’s dismissal, the Panel held plaintiff’s claims were barred under the Foreign Trade Antitrust Improvements Act (“FTAIA”), clarifying that, in the Second Circuit, the proper test under the FTAIA’s import exclusion is effects-based, not intent-based.
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 Affirms Dismissal Of Price Fixing Claims Against Oil Companies
On August 29, 2019, the United States Court of Appeals for the Second Circuit issued an Opinion and Summary Order affirming the dismissal of plaintiffs-appellant derivatives traders’ Sherman Act and Commodities Exchange Act claims against defendant-appellees oil companies. Prime International Trading, Ltd., et al. v. BP PLC, et al., No. 1:17-cv-2233 (2d Cir. 2019).
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).
D.C. Circuit Grounds Competition Challenge To FAA Regulations For Lack Of Standing
On August 2, 2019, the United States Court of Appeals for the District of Columbia Circuit dismissed an airline technology company’s petitions for review of regulations that petitioner alleged both restricted competition for airport flight slots and limited petitioner’s market opportunity for lack of standing. Exhaustless Inc. v. FAA, Case No. 18-1304 (D.C. Cir. 2019). The panel—Judges Karen Henderson, Sri Srinivasan and Cornelia Pillard—ruled that petitioner failed to show that it was injured or would incur injury from the Federal Aviation Association’s regulations limiting the number of flights out of LaGuardia and JFK Airports.
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.
Eastern District Of Michigan Allows Sherman Act Suit Based On Employee No-Poach Agreement To Proceed
On May 24, 2019, Judge Victoria A. Roberts of the United States District Court for the Eastern District of Michigan denied defendant Domino’s Pizza Franchising LLC’s and other related Domino’s corporate entities’ motion to dismiss, finding that plaintiff, an employee of one of defendants’ franchisees, had adequately alleged a no-poach agreement in violation of Section 1 of the Sherman Act. Blanton v. Domino’s Pizza Franchising LLC, No. 18-13207 (E.D. Mich. May 24, 2019). The Court also found that plaintiff plausibly pleaded that defendants’ fraudulently concealed their conduct such that the Sherman Act’s four-year statute of limitations was tolled.
Second Circuit Revives Direct Injury Claims In Group Boycott Lawsuit
On May 10, 2019, the Second Circuit Court of Appeals, in a panel consisting of Judges John M. Walker, Jr., Dennis Jacobs, and Rosemary S. Pooler, affirmed in part and vacated in part a decision by Judge Brian M. Cogan of the United States District Court for the Eastern District of New York on antitrust standing. IQ Dental Supply, Inc. v. Henry Schein, Inc., 18-175-cv (2d Cir. May 10, 2019). The court agreed with Judge Cogan that plaintiff, IQ Dental Supply, Inc. (“IQ”), had failed to establish antitrust standing to challenge the alleged boycott of an online distribution portal, SourceOne, Inc. (“SourceOne”), which it used to distribute dental supplies to dental practices nationwide. However, the court found that IQ had pled sufficient facts to establish antitrust standing regarding a boycott of its own business and vacated the district court’s judgment.
In Case Against Major Technology Corporation, United States Supreme Court Holds Mobile Phone Owners Have Antitrust Standing To Bring Claims Against Operator Of Application Store
On May 13, 2019, the Supreme Court of the United States affirmed a Ninth Circuit decision reversing a California District Court’s dismissal of plaintiffs’ antitrust claims on grounds that plaintiffs could not sue defendant because they were not direct purchasers from defendant. The 5-4 majority opinion written by Justice Kavanaugh held that plaintiffs—owners of mobile phones produced and sold by defendant—were direct purchasers because they bought applications directly from defendant’s application store. Thus, as injured buyers under Section 4 of the Clayton Act, plaintiffs were not barred from suing defendant on claims that defendant monopolized the retail market for the sale of its phone applications and exploited this position to overcharge consumers. Apple Inc. v. Pepper, No. 17-204 (U.S. May 13, 2019).
Southern District Of New York Dismisses CDOR Benchmark Manipulation Complaint In Its Entirety
On March 14, 2019, Judge Analisa Torres of the United States District Court for the Southern District of New York granted defendants’ motion to dismiss a complaint alleging they improperly manipulated the Canadian Dollar Offered Rate (“CDOR”) benchmark. Fire & Police Pension Association of Colorado v. Bank of Montreal, et al., Case No. 1:18-cv-00342 (S.D.N.Y Mar. 14, 2019).
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).
Oregon District Court Allows Claim Against Association Of Colleges And Universities To Proceed And Accepts Harm To Defendant’s Members As Evidence Of Antitrust Injury
On November 28, 2018, Judge Marco A. Hernández of the United States District Court for the District of Oregon, on remand from the Ninth Circuit, reversed its prior grant of a motion to dismiss and held that plaintiff — which brought antitrust conspiracy claims against a non-profit corporation made up of 549 member colleges — sufficiently demonstrated antitrust injury by alleging harm to the member colleges. CollegeNET, Inc. v. The Common Application, Inc., No. 3:14-CV-00771-HZ (D. Or. Nov. 28, 2018).
District Of New Jersey Denies Class Certification Based On Presence Of Uninjured Class Members In Proposed Class
On October 30, 2018, Judge Madeline C. Arleo of the United States District Court for the District of New Jersey declined to certify a proposed consumer class in litigation accusing a pharmaceutical manufacturer (the “Company”) of maintaining a monopoly for two of its drugs. Judge Arleo held that, under Federal Rule of Civil Procedure 23, a class cannot be certified when a non-trivial portion of class members were not injured, absent some “reasonable and workable plan” to segregate those members from the rest of the class. In re Thalomid and Revlimid Antitrust Litig., No. 2:14-cv-06997, at *26, *29 (D.N.J. Oct. 30, 2018) (“Opinion”). In so holding, Judge Arleo relied heavily on the First Circuit’s recent decision in In re Asacol Antitrust Litig., which reversed a district court’s approval of a class on similar grounds. No. 18-1065, 2018 WL 4958856, at *11 (1st Cir. Oct. 15, 2018); https://www.lit-antitrust.shearman.com/first-circuit-reverses-class-certification-based.
First Circuit Reverses Class Certification Based On Presence Of Uninjured Class Members In Certified Class
On October 15, 2018, the United Stated Court of Appeals for the First Circuit, in an opinion by Judge William J. Kayatta, reversed a district court’s certification of a class of indirect purchasers of the drug Asacol, holding that, under Federal Rule of Civil Procedure 23, a class cannot be certified when a non-trivial portion of class members were not injured in fact, absent some “reasonable and workable plan” to segregate those members from the rest of the class. In re Asacol Antitrust Litig., No. 18-1065, 2018 WL 4958856, at *11 (1st Cir. Oct. 15, 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.
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).
Third Circuit Upholds Dismissal Of Attempted Monopolization Claims For Failure To Allege An Antitrust Violation Or Antitrust Injury
On March 27, 2018, the United States Court of Appeals for the Third Circuit upheld a March 2017 order by Judge Sanchez of the Eastern District of Pennsylvania dismissing an attempted monopolization claim asserted by the Philadelphia Taxi Association (“PTA”) and 80 individual taxicab companies against a leading ride-hailing company. Phila. Taxi Ass’n v. Uber Tech., Inc., No. 17-1871 (3d Cir. Mar. 27, 2018). The Court held that plaintiffs had failed to state a claim under Section 2 of the Sherman Act and had failed to allege antitrust injury.
Southern District Of New York Denies Certification To Two Putative Classes And Grants Partial Certification To A Third In LIBOR Rate Manipulation Litigation
On February 28, 2018, Judge Naomi Reice Buchwald of the Southern District of New York denied class certification to two proposed classes in the LIBOR rate manipulation litigation, while granting partial certification to a third class. In re LIBOR-Based Fin. Instruments Antitrust Litig., No 1:11-cv-02613-NRB (S.D.N.Y. Feb. 28, 2018). At issue in this thorough 366-page decision were three proposed classes: (1) the “exchange-based” class, (2) the “lender” class, and (3) the “over-the-counter” or “OTC” class, all seeking to recover damages based on alleged manipulation of the London Inter-bank Offered Rate (“LIBOR”).
U.S. District Court For The Northern District Of Florida Holds That A Doctor Is Not An Efficient Enforcer Of The Antitrust Laws With Respect To An Alleged Conspiracy To Exclude Her From Practicing
On January 3, 2018, Judge Mark E. Walker granted defendant doctors’ motion to dismiss a lawsuit filed by plaintiff Wendy Garlington, a rival practitioner, on grounds that Garlington was not an “efficient enforcer” of the antitrust laws, as required for antitrust standing under Section 4 of the Clayton Act. This decision is consistent with a line of precedent from the U.S. Court of Appeals for the Eleventh Circuit that sets a high bar under the efficient enforcer requirement for plaintiffs pursuing antitrust claims against competitive rivals in the medical services arena.
Northern District Of California Dismisses Monopolization Claims By Hospital Operators For Failure To State A Claim
On December 7, 2017, Magistrate Judge Laurel Beeler of the United States District Court for the Northern District of California dismissed a conspiracy to monopolize claim brought by two local hospital operators against Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Inc., and Permanente Medical Group, Inc. Northbay Healthcare Grp., Inc., et al. v. Kaiser Found. Health Plan, Inc., et al., No. 17-cv-05005-LB, 2017 WL 6059299 (N.D. Cal. Dec. 7, 2017). The plaintiffs, who operate two hospitals in Solano County, California, alleged that defendants conspired to monopolize the healthcare insurance and services market in Solano County by (1) terminating their rate agreements with plaintiffs, and (2) steering patients to or away from defendants’ hospital emergency rooms based on the defendants’ financial incentives. The Court dismissed the complaint, holding that plaintiffs did not adequately allege (1) a combination or conspiracy to monopolize, (2) specific intent to monopolize, or (3) a causal antitrust injury. Finding these elements lacking, the Court did not address whether plaintiffs alleged an overt act in furtherance of the alleged conspiracy, the fourth element of the claim.
9th Circuit Upholds Grant Of Summary Judgment In Favor Of UPS And FedEx In Antitrust Suit Brought By Third-Party Shipping Rate Consultant
On August 21, 2017, in an unpublished, split panel decision, the Ninth Circuit affirmed U.S. District Judge Jesus G. Bernal’s decision granting summary judgment in favor of UPS and FedEx on AFMS LLC’s antitrust suit under § 1 of the Sherman Act. AFMS, a firm that offered rate negotiation and consulting services for package shippers, alleged that UPS and FedEx conspired to boycott third-party consultants such as AFMS who negotiated rates for their customers, including by threatening to discontinue the rate discounts for any shippers who continued to use intermediaries. After providing AFMS with three opportunities to amend its complaint, the U.S. District Court finally dismissed the claims with prejudice in April 2015 because AFMS had not properly defined a market impacted by the alleged agreement.
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.