Direct Purchasers Defeat Merck’s Motion For Summary Judgment In Monopolization Case Involving Mumps Vaccine Products
On July 27, 2023, Judge Chad Kenney of the United States District Court for the Eastern District of Pennsylvania granted in part and denied in part Merck’s motion for summary judgment in relation to a class action alleging that direct purchasers of Merck’s mumps vaccines were overcharged as a result of Merck’s alleged unlawful monopolization of the mumps vaccine market in violation of Section 2 of the Sherman Act and New Jersey and New York state laws. In re Merck Mumps Vaccine Litig., No. 12-3555 (E.D. Pa. July 27, 2023). Plaintiffs allege that Merck’s submissions to the FDA and its labels for its mumps vaccines contained false and misleading information in relation to the amount of live virus in its products. According to plaintiffs, this led to competitors being forced to comply with unusual standards to receive FDA approval to market their products, and specifically, it precluded GSK from obtaining a license to sell its vaccine for mumps, measles and rubella (MMR vaccine) and caused plaintiffs to be overcharged.
Putative Class Action Plaintiffs Defeat NCAA’s Motion To Dismiss Sherman Act Claim
On July 27, 2023, Judge William Shubb of the United States District Court for the Eastern District of California denied the National Collegiate Athletic Association’s (NCAA) motion to dismiss a putative class action alleging in part that the NCAA and its member schools violated Section 1 of the Sherman Act by conspiring not to compensate coaches defined as volunteer coaches under NCAA regulations. Smart v. NCAA, No. 22-cv-02125 (E.D. Cal. July 27, 2023).
Federal Judge Narrows Scope Of Broiler Chicken Antitrust Litigation In Anticipation Of Trial
On June 30, 2023, U.S. District Judge Thomas Durkin for the Northern District of Illinois partially granted defendants’ motion for summary judgment in a consolidated antitrust case alleging unlawful price-fixing in the broiler chicken industry. In re Broiler Chicken Antitrust Litig., 1:16-cv-08637 (N.D. Ill. 2023). Plaintiffs claim defendant broiler chicken producers raised the price of broiler chickens in violation of Section 1 of the Sherman Act by unlawfully agreeing to reduce the supply of chicken between 2008 and 2009 and 2011 and 2012. The Court granted summary judgment in favor of seven defendants but denied the motions by 11 other defendants and allowed those claims to proceed to trial, citing differences in the amount of evidence expressly involving each defendant.
Banks Win Dismissal Of U.S. Silver Price-Fixing Litigation
On May 22, 2023, Judge Caproni of the United States District Court for the Southern District of New York dismissed with prejudice a long-running litigation brought by plaintiff traders who in 2014 accused certain financial institutions of conspiring to periodically suppress a daily silver benchmark price set in London in violation of Section 1 of the Sherman Act. In re London Silver Fixing, Ltd., Antitrust Litigation, 2023 WL 3582198 (S.D.N.Y. May 22, 2023). Plaintiffs had accused the financial institutions of manipulating silver prices from 2007 to 2013.
Amazon Wins Motion To Dismiss Antitrust Suit Because Plaintiffs Lacked Antitrust Injury
On April 20, 2023, Judge Ricardo Martinez of the United States District Court for the Western District of Washington dismissed with leave to amend a putative class action alleging that Amazon’s linking of favorable website product placement for third-party sellers with the third-party sellers’ purchases of Amazon’s fulfillment services was an unlawful tying arrangement under Sections 1 and 2 of the Sherman Act. Hogan v. Amazon.com, Inc., No. 21-996 (W.D. Wash. Apr. 20, 2023). Plaintiffs were members of Amazon Prime, an Amazon program offering free or reduced shipping on purchases through Amazon, among other benefits, in exchange for an annual fee. Plaintiffs alleged that third-party sellers who purchase Amazon’s fulfillment services receive a “Prime Badge” and favorable product placement on Amazon’s website in the “Buy Box,” the section of the product page through which plaintiffs claimed 90% of Amazon.com consumer purchases are made.
Second Circuit Rules Exchange Traders Are Efficient Enforcers With Antitrust Standing In Precious Metals Benchmarking Case
On February 27, 2023, the United States Court of Appeals for the Second Circuit reversed and remanded the Southern District of New York’s dismissal of antitrust claims alleging that defendants conspired to manipulate the market value of platinum and palladium. In re Platinum and Palladium Antitrust Litigation, No. 20-1458 (2d Cir. Feb. 27, 2023). The Second Circuit ruled that certain plaintiffs who traded futures contracts on an exchange were efficient enforcers with standing to sue under Section 1 of the Sherman Act, while traders in the physical markets for these metals were not efficient enforcers and lacked antitrust standing.
TV Broadcasters Fail To Compel Production From Ad Agencies And Other Plaintiffs Regarding Antitrust Standing And Market Definition
On February 9, 2023, Judge Virginia Kendall of the United States District Court for the Northern District of Illinois denied a motion to compel discovery in a long-running dispute between major broadcasters and ad buyers who allege that the broadcasters conspired to fix the prices of local TV ads. In re Local TV Advertising Antitrust Litigation, No. 18-6785 (N.D. Ill. Feb. 9, 2023). In their discovery motion, defendant broadcasters had sought to compel production of material that the broadcasters claimed was necessary to challenge both the antitrust standing of two advertising agency plaintiffs and plaintiffs’ proposed definition of the relevant antitrust market. Denying the motion to compel, the Court ruled that the information sought by the broadcasters was not sufficiently relevant to either issue.
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).
Seventh Circuit Affirms Dismissal Of Antitrust Claims Against Hospital And Insurance Provider
On July 15, 2022, the United States Court of Appeals for the Seventh Circuit affirmed a magistrate judge’s conclusion that a health clinic, located within an Illinois hospital, did not suffer a cognizable antitrust injury by a hospital and insurance provider for agreeing to in-network status. Marion HealthCare, LLC v. Illinois Hosp. Servs., No. 20-1581, 2022 WL 2763502 (7th Cir. July 15, 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).
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).
U.S. District Court For The Southern District Of Texas Dismisses Claims Against Three Largest U.S. Producers Of Steel
On February 17, 2022, the United States District Court for the Southern District of Texas dismissed an antitrust suit against the country’s largest steel manufacturers. JSW Steel (USA) Inc. v. Nucor Corp. et al., 4:21-cv-01842 (S.D. Tex. 2022). Plaintiff, JSW Steel (a finished-steel producer), alleged that Cleveland Cliffs Inc., Nucor Corp., and U.S. Steel Corp. violated Section 1 of the Sherman Act and various Texas state competition and contracts laws. Specifically, Plaintiff alleged that Defendants colluded to increase the price of certain steel imports by lobbying for tariffs, while not being able to provide Plaintiff with equivalent steel products. Plaintiff argued that its thriving business was crippled and eventually failed due to the collusive behavior of Defendants.
New Tennessee Case Alleges “Archrivals” Google And Facebook Secretly Conspired To Dominate The Worldwide Digital Advertising Market
It is widely known that the evolution to online news has been challenging for print media sources, with some estimating that as much as half of all print revenue disappearing and one fifth of U.S. newspapers closing their doors since 2007. In recent years, the House and Senate have focused on tech giants and the role these companies play in the lives of Americans and in a variety of markets, including digital advertising. Following a long line of congressional hearings and committee investigations, a number of antitrust complaints have been filed by the Federal Trade Commission, the Department of Justice, and state Attorneys General across the country against major Big Tech companies like Facebook (now known as Meta Platforms, Inc.) and Google. While some have been consolidated into multidistrict litigation, new cases continue to be filed by private plaintiffs.
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 Dismisses Sherman Act Complaint Against Platform Operator Based On Implausible Single-Brand Market Definitions And Failure To Allege Harm To Competition
On November 30, 2021, Judge Edward M. Chen of the United States District Court for the Northern District of California dismissed a putative class action alleging that the defendant smartphone supplier’s contracts with mobile application (“apps”) developers and related guidelines violate Sections 1 and 2 of the Sherman Act based on plaintiffs’ failure to allege a plausible relevant market or that they suffered antitrust harm. Judge Chen also dismissed plaintiffs’ breach of contract, RICO, and fraud claims. Coronavirus Reporter v. Apple Inc., No. 21-cv-05567-EMC (N.D. Cal. 2021).
Fifth Circuit Blocks Topgolf Antitrust Suit For Lack Of Antitrust Injury
On November 15, 2021, Judges Edith Jones, Jerry Smith, and James Haynes of the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of an antitrust complaint related to Topgolf International’s (“Topgolf”) acquisition of Protracer in 2016. The complaint alleged that Topgolf acquired a technology owned by Protracer in order to drive its competitor, SureShot Golf Ventures (“SureShot”) out of business in violation of Section 1 and 2 of the Sherman Act. SureShot Golf Ventures, Inc. vs. Topgolf International, Inc., 21-20132 (5th Cir. Nov. 15, 2021).
District Of New Jersey Rejects Claim Of Sham Patent Litigation
On October 27, 2021, Judge Kevin McNulty of the United States District Court for the District of New Jersey dismissed a complaint alleging that a cancer drug manufacturer engaged in sham litigation in violation of Section 2 of the Sherman Act and various state antitrust and consumer protection laws based on the same alleged sham litigation. Louisiana Health Service & Indemnity Company v. Janssen Biotech, Inc., 19-14146 (D.N.J. Oct. 27, 2021).
Eastern District Of Virginia Certifies Class Of Cholesterol Drug End Payors
On August 20, 2021, Judge Rebecca Smith of the United States District Court for the Eastern District of Virginia certified a class of end-payor plaintiffs (“EPPs”) alleging that defendant pharmaceutical companies (“defendants”) entered into a reverse payment agreement that delayed generic competition to the branded cholesterol drug Zetia in violation of Section 1 of the Sherman Act. In re Zetia (Ezetimibe) Antitrust Litig., MDL No. 2:18-md-2836 (E. D. Va. 2021). This case is part of a multidistrict litigation against defendants, and Judge Smith’s certification decision was in the face of a Fourth Circuit decision two weeks prior that vacated her decision to certify a different class of plaintiffs.
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.
Northern District Of Illinois Terminates Claims Against Bank In Antitrust Suit
On June 1, 2021, Judge Thomas Durkin of the United States District Court for the Northern District of Illinois dismissed a complaint alleging that a bank conspired with other defendants in the poultry industry in violation of Section 1 of the Sherman Act. In re Broilers Chicken Antitrust Litig., 16-8637 (N.D. Ill. June 1, 2021).
Northern District Of California Shuts Down App Developers’ Antitrust Suit
On April 26, 2021, Judge Beth Labson Freeman of the United States District Court for the Northern District of California dismissed a complaint alleging that Facebook violated Section 2 of the Sherman Act by removing certain application interfaces that plaintiffs relied on for their mobile applications. Reveal Chat Holdco LLC, et al. v. Facebook, 5:20-cv-00363 (N.D. Cal. Apr. 26, 2021). Plaintiffs alleged that the application programming interfaces (“APIs”) were central to their ability to function and that the removal of these APIs by Facebook in 2015 was part of a scheme to harm applications that were competitive or potentially competitive with Facebook. In dismissing the complaint for a second time and with prejudice, the Court concluded that plaintiffs’ “entire theory of liability is based on completed acts by Facebook beyond the limitations period” and that their claims were therefore time-barred.
Fourth Circuit Affirms Lower Court’s First Of Its Kind Divesture Order In Private Challenge To Merger
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.
Central District Of California Forecloses Realtors’ Antitrust Suit
On February 3, 2021, Judge John W. Holcomb of the United States District Court for the Central District of California dismissed a complaint alleging that real estate listing services conspired with a national realtors association to exclude a competitor from the market. The PLS.com, LLC v. The National Association of Realtors, et al., 2:20-cv-04790 (C.D. Ca. Feb. 3, 2021). Plaintiff, a listing service for off-market properties, alleged that three real estate listing services—Bright MLS, Inc. (“BrightMLS”), Midwest Real Estate Data, LLC (“Midwest RED”), and California Regional Multiple Listing Service, Inc. (“Cal Regional MLS”)—conspired with The National Association of Realtors (“NAR”) to eliminate them from the market in violation of Section 1 of the Sherman Act and California’s Cartwright Act.
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.
When “Killing Competition” Isn’t Anticompetitive: Federal Circuit Affirms Dismissal Of Power Grid Tech Company’s Antitrust Claims Against Rival Firms
On July 13, 2020, the United States Court of Appeals for the Federal Circuit affirmed the Central District of California’s dismissal of a suit brought by a power systems software company against three competitor corporations on grounds that plaintiff’s claims failed to adequately allege anticompetitive conduct under the Sherman Act and related state law claims. Power Analytics Corp. v. Operation Tech., Inc. et al., No. 19-1805 (Fed. Cir. July 13, 2020).
Northern District Of Illinois Dismisses Antitrust Claims Relating To World’s Most Profitable Drug—Humira (Adalimumab)
On June 8, 2020, Judge Manish Shah of the United States District Court for the Northern District of Illinois (Eastern Division) granted AbbVie’s motion to dismiss plaintiff’s Sherman Act claims because the allegations fell “short of alleging the kind of competitive harm remedied by antitrust law.” In re Humira (Adalimumab) Antitrust Litigation, No. 1:19-cv-01873 (N.D. Il. 2020). Plaintiffs are two separate classes of indirect purchasers in a consolidated class action alleging that pharmaceutical manufacturer AbbVie, in concert with competing biosimilar manufacturers (Amgen, Samsung Bioepis, and Sandoz), violated §§ 1 and 2 of the Sherman Act by improperly exercising monopoly power over the market for the drug Adalimumab.
United States District Court For The Eastern District Of Pennsylvania Denies End-Payor Plaintiffs’ Motion For Class Certification In Pay-For-Delay MDL
On June 3, 2020, Judge Jan E. DuBois of the United States District Court for the Eastern District of Pennsylvania denied the End-Payor Plaintiffs’ (“EPPs”) motion for class certification in a multidistrict litigation (“MDL”) challenging the settlement practice of pay-for-delay. In re Niaspan Antitrust Litig., No. 13-MD-2460, 2020 WL 2933824 (E.D. Pa. June 3, 2020). The district court denied the EPPs’ motion for class certification because the EPPs failed to demonstrate, by a preponderance of the evidence, the requirements of ascertainability, predominance, and superiority.
Northern District Of Georgia Allows Sherman Act Tying Scheme Claims To Proceed
On April 14, 2020, Judge Timothy C. Batten Sr. of the United States District Court for the Northern District of Georgia denied a motion to dismiss Shearman Act claims against defendant CargoSprint, LLC and its founder. PayCargo, LLC v. CargoSprint, LLC, No. 3:19-CV-85-TCB, 2020 WL 1861928 (N.D. Ga. Apr. 14, 2020). Plaintiff, a competing provider of electronic payment management services to freight and cargo carriers and shippers, alleged that defendants violated antitrust laws by tying the use of one of their products to the purchase of another. Judge Batten denied defendants’ motion to dismiss, rejecting defendants’ argument that plaintiff’s amended complaint contained only conclusory allegations regarding the tying arrangement.
United States District Court Judge Denies Writers Guild Motion To Dismiss Antitrust Suit Brought By Hollywood Talent Agencies Alleging The Orchestration Of An Illegal Boycott In The Entertainment Industry
On January 6, 2020, District Judge Andre Birotte Jr. of the United States District Court for the
Central District of California denied defendants, Writers Guild of America West, Inc. and Writers Guild of America East, Inc.’s (“WGA”) motion to dismiss an action brought by three of the largest Hollywood talent agencies alleging that WGA violated Section 1 of the Sherman Act by orchestrating an illegal boycott. William Morris Endeavor Entertainment, LLC., et al. v. Writers Guild of America, West, Inc. et al., No. 2:19-cv-05465-AB-FFMx (Jan. 7, 2020).
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.
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.”
Southern District Of New York Dismisses “Truly Novel” Restraint Of Trade Theory In Pharmaceutical Antitrust Action
On October 8, 2019, United States District Judge for the Southern District of New York Ronnie Abrams dismissed all but one claim in a putative antitrust class action brought against Takeda Pharmaceutical Company Ltd. and various Takeda entities, as well as generic manufacturers Teva Pharmaceuticals, Ranbaxy Pharmaceutical Industries Ltd., Actavis PLC, and Mylan Inc. In re: Actos Direct Purchaser Antitrust Litigation, No. 1:15-cv-03278 (S.D.N.Y. Oct. 8, 2019). The class complaint alleged that Takeda illegally conspired with the other defendants to delay generic competition for its blockbuster diabetes drug Actos through a series of patent settlement agreements, which granted the other defendants non-exclusive licenses to produce generic Actos at a future date prior to the expiration of Takeda’s patents. The Court dismissed these conspiracy claims, finding that plaintiffs’ “truly novel” theory for why the settlement agreements between Takeda and the other defendants violated the antitrust laws lacked “even a colorable basis” of support. The Court’s decision left in place one remaining claim against Takeda for monopolization.
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.
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).
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.
Eastern District Of Michigan Slices No-Poach Antitrust Claims Against Pizza Franchise
On July 29, 2019, Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan dismissed, with prejudice, antitrust claims stemming from a fast-food pizza franchise’s use of “no-poach” hiring agreements in its standard franchise contracts. Judge Lawson determined that plaintiff, who did not attempt to advance a rule of reason antitrust claim, had not pled a viable per se or quick look antitrust violation. Moreover, plaintiff did not plausibly allege that the no-poach agreements caused him a cognizable antitrust injury. Ogden v. Little Caesar Enterprises, Inc., No. 18-12792, 2019 WL 3425266 (E.D. Mich. July 29, 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.
Central District Of California Gives Poor Review To Movie Rental Antitrust Claims
On July 17, 2019, Judge Dean D. Pregerson of the U.S. District Court for the Central District of California dismissed antitrust claims alleging that a major media and entertainment conglomerate unlawfully restrained trade in the nationwide market for rentals and sales of movies on DVD, Blu-ray and digital platforms. Judge Pregerson determined that plaintiff had not met its pleading burden; specifically, it did not adequately allege market power or anticompetitive effects in the relevant market. Redbox Automated Retail, LLC v. Buena Vista Home Entertainment, Inc., CV 18-00677-DDP (AGRx), 2019 WL 3237376 (C.D. Cal. July 17, 2019).
Central District Of California Finds Clothing Rental Company’s Antitrust Claims All Style, No Substance
On June 24, 2019, Judge George H. Wu of the United States District Court for the Central District of California granted a defendant clothing rental company’s motion to dismiss antitrust claims brought under California’s Cartwright Act, as well as other state-law claims brought by a competing clothing rental company. FashionPass, Inc. v. Rent the Runway, Inc., No. 19-cv-3537-CG(JCx) (June 24, 2019). Plaintiff alleged that defendant interfered with and intentionally caused certain clothing suppliers to cancel their contracts with, and refuse to supply, plaintiff in violation of the Cartwright Act and California’s Unfair Competition Law (“UCL”). Plaintiff also brought tort claims for intentional interference with contract and intentional interference with prospective economic advantage based on the same alleged conduct. The Court dismissed the complaint in full, finding that plaintiff failed to plead a primary violation of the Cartwright Act, because the complaint did not identify any harm to the market or to competition generally, but instead pleaded only harm to plaintiff itself.
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.
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).
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).
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.