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).

On July 21, 2022, the United States Court of Appeals for the Third Circuit unanimously affirmed a district court judge’s conclusion that a prior settlement released a claim by plaintiff, a generic pharmaceutical manufacturer (the “Company”), that defendants engaged in “sham” patent litigation to block it from launching a generic version of defendants’ brand-name drug.  Perrigo Co, et al. v. AbbVie Inc, et al., No. 21-3026 (3d Cir. Jul. 21, 2022).

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.

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.

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. 

On February 18, 2021, the Fourth Circuit affirmed in relevant part a district court’s divestiture order in a Clayton Act challenge to a consummated merger by a private party.  Steves & Sons, Inc. v. JELD-WEN, Inc., No. 19-1397, 2021 WL 630521 (4th Cir. Feb. 18, 2021).  The divestiture order appears to be the first time that an appellate court has affirmed a post-consummation divestiture order of an acquired company in response to a Clayton Act challenge to a merger or acquisition by a private party.
 

On January 11, 2021, the United States Court of Appeals for the Third Circuit vacated a district court order granting defendants’ summary judgment motion, finding that the court erred in concluding that defendants’ patent position barred plaintiff’s antitrust damages claims without evaluating plaintiff’s challenges to the patent’s validity and infringement as to plaintiff’s product.  Fresenius Kabi USA, LLC v. Par Sterile Prods., LLC, No. 20-1618, 2021 WL 80616 (3d Cir. Jan. 11, 2021).  Where the defendant has raised its patent rights as a defense to the assertion of antitrust damages, the Third Circuit held, a court must analyze the plaintiff’s challenges to validity and infringement of the patent regardless of whether patent litigation or a Food and Drug Administration (“FDA”) application relating to the product has been filed.
 

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.
 

On July 23, 2020, U.S. District Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York denied a motion for class certification in the Aluminum Warehousing Antitrust Litigation based on plaintiffs’ failure to show that they could establish class-wide impact through common proof.  The case is significant, among other things, in its close examination and rejection of plaintiffs’ statistical models based on average impact that mask the existence of putative class members who did not suffer any injury.
 

On December 5, 2019, the Court of Appeals for the First District of Texas held that a movie theater chain presented sufficient evidence suggesting two national competitors conspired to prevent the chain’s entry to withstand summary judgment.  This ruling reversed the trial court’s decision, which granted summary judgment to the remaining defendant and dismissed antitrust restraint-of-trade claims.  iPic-Gold Class Entm’t LLC, et al. v. AMC Entm’t Holdings Inc., et al., No. 01-17-00805-CV (Tex. App. Dec. 5, 2019).  Justice Peter Kelly, writing for a unanimous panel, ruled that evidence of parallel actions by the two competitors and communication lines between them raised genuine issues of material fact as to the existence of a conspiracy in violation of The Texas Free Enterprise and Antitrust Act (“TFEAA”). 

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).

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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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”).  

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On February 23, 2018, the United States Court of Appeals for the Second Circuit vacated portions of Judge Buchwald’s 2015 opinion that had dismissed claims brought by Charles Schwab Corp. and affiliates against over a dozen banks alleged to have manipulated U.S. Dollar LIBOR for lack of personal jurisdiction for state-law claims and a failure to link the alleged manipulation to damages for Securities Exchange Act claims.  Charles Schwab Corp., et al. v. Bank of America Corp., et al., 16-1189-cv (2d Cir. Feb. 23, 2018).  Schwab had been among the many plaintiffs to pursue claims against LIBOR panel banks under the antitrust laws, but—while the dismissal of those claims was pending appeal before the Second Circuit—Schwab initiated a parallel action against LIBOR panel banks, alleging California common law fraud and unjust enrichment claims, statutory claims under California’s Business and Professions Code, and claims under the Securities Exchange Act.  The district court dismissed the complaint in its entirety, holding that (i) personal jurisdiction was lacking for the state law claims because the alleged manipulation took place outside of the U.S.; and (ii) the complaint failed to allege facts in support of a Securities Exchange Act claim because it failed to connect the suppression of LIBOR to any damages suffered by Schwab.  In re LIBOR-based Financial Instruments Antitrust Litig., 2015 WL 6243526, *70 (Oct. 20, 2015 S.D.N.Y.).  The Second Circuit vacated these rulings, directing the district court to grant Schwab leave to amend its complaint to address a number of issues identified in the opinion. 

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On October 16, 2017, Judge Denise J. Casper of the United States District Court for the District of Massachusetts granted class certification to two classes of purchasers allegedly injured by a pay-for-delay scheme relating to prescription drug Solodyn:  a Direct Purchaser Plaintiff class (“DPPs”) and an End-Payor Plaintiff class (“EPPs”).  In Re Solodyn (Minocycline Hydrochloride) Antitrust Litig., No. 14-md-02503 (D. Mass. Oct. 16, 2017).  In certifying the DPP class, the Court rejected the argument that affiliated corporate entities should be consolidated in evaluating the numerosity requirement of Federal Rule of Civil Procedure 23(a).  In certifying both classes, the Court accepted the plaintiffs’ experts’ proffered methodologies to establish common or class-wide impact as adequate for Rule 23 purposes over a variety of defense challenges.

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