Corporate & Securities Law

NFL Fans - Are You Ready for Some... Antitrust Litigation? Players Sue, Claiming Lockout is a Group Boycott

Posted on March 29, 2011
Following a breakdown in labor negotiations, a group of current and prospective NFL players have sued the league, claiming that a league-imposed lockout is a group boycott among horizontal competitors (the NFL teams), and a per-se violation of Section One of the Sherman Act...

Expanded Standing, or "Back to Basics"? Flash Memory Direct Purchasers Found to Have Standing to Assert Walker Process Claims

Posted on March 29, 2011
In Ritz Camera & Image, LLC v. SanDisk Corporation, et al., United States District Court, ND Cal., Case No. 5:10-CV02787-JF/HRL, the court denied a motion to dismiss in a Walker Process "fraud on patent office" case, and allowed standing to a direct purchaser...

First Section 2 Monopolization Case Of the Obama Administration Targets Dominant Texas Health Care Provider

Posted on March 11, 2011
In the first challenge against anticompetitive unilateral conduct since 1999, the Department of Justice reached a proposed settlement with a Texas hospital to enjoin it from entering into exclusionary contracts that effectively prevented commercial health insurers from also contracting with the hospital's rivals...

Government Targets Agriculture Industry for Increased Antitrust Scrutiny

Posted on March 11, 2011
During the last of five joint public workshops with the U.S. Department of Agriculture (USDA) on December 8, 2010 – the first ever to examine competition issues affecting the agriculture industry – the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, Christine Varney, emphasized the importance of 'vigorous enforcement of the antitrust laws …to ensure competitive agriculture markets'...

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U.S. Film Studios Agree to Modify "Most Favored Nations" Clause in EU Contracts to Encourage Financing and Installation of Digital Equipment

Posted on March 11, 2011
On March 4, 2011, the European Commission ('EC') announced that it had closed an investigation into whether the contracts of several major U.S. film studios for the financing and installation of digital projection equipment in European cinemas infringed the EU's competition law banning anticompetitive agreements and practices (Article 101 of the Treaty of the Function of the European Union)...

Indirect Purchaser Plavix Class Actions Tossed for Lack of Antitrust Standing

Posted on February 18, 2011
On January 31, 2011, the District Court for Southern District of Ohio granted defendants' Rule 12(b)(6) motion, dismissing indirect purchaser class actions that challenged proposed reverse payment agreements as anticompetitive under Sections 1 and 2 of the Sherman Act, 15 U...

Aspartame Class Action Dismissal Affirmed on Statute of Limitations Grounds

Posted on February 18, 2011
On January 28, 2011, the Third Circuit Court of Appeals in an unpublished opinion affirmed the 2008 decision of the District Court for the Eastern District of Pennsylvania to toss the Aspartame class action on statute of limitations grounds. The court of appeals agreed that the plaintiffs could not invoke the equitable doctrine of fraudulent concealment to toll the four-year statute of limitations for antitrust claims...

Lights Out for Resale Price and Dual Distribution Class Action

Posted on January 10, 2011
On December 2, 2010, the Court of Appeals for the 11th Circuit affirmed a ruling of dismissal entered by the United States District for the Northern District of Georgia. Jacobs v. Tempur-Pedic Int.'l, Inc., No. 08-12720. Plaintiff Jacobs brought an action on behalf of a class of purchasers of 'visco-elastic foam" mattresses from defendant Tempur-Pedic North America, Inc...

Extradited Foreign Executive Jailed for Obstructing DOJ Antitrust Investigation

Posted on December 28, 2010
On March 23, 2010, for the first time in the history of the Antitrust Division of the United States Department of Justice (DOJ), a foreign defendant, Mr. Ian Norris, a U.K. citizen and the retired CEO of the Morgan Crucible Company plc, was extradited from the United Kingdom to the United States to face charges that he obstructed DOJ's criminal investigation of a cartel among carbon manufacturers...

EC Investigates Google for Potential Abuse of Dominance in Online Search Market

Posted on December 06, 2010
In July 2010, Vice President of the European Commission (EC) responsible for competition policy, Mr. Joaquin Almunia, referred to the essential role that competition policy has in ensuring 'market access and opportunities to all efficient players capable of delivering new value' in internet markets such as online search engines...

Healthcare Sector Comes Under Increased Government Antitrust Scrutiny

Posted on November 09, 2010
In May 2010, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, Christine Varney, referred to the essential role that antitrust has in preserving and protecting competition, which together with regulation, can be harnessed to expand coverage, improve quality and control the cost of health care...

Silicon Valley Firms Settle DOJ Hiring Practices Charges, But Are No-Solicitation Agreements Per Se Illegal?

Posted on October 25, 2010
Ending an investigation launched more than a year ago, on September 24, 2010, the Antitrust Division of the Department of Justice entered into an agreement with Google Inc., Apple Inc., Intel Corp., Adobe Systems Inc., Intuit Inc. and Pixar Animation settling charges that the companies' bilateral agreements prohibiting cold-calling of their employees violated Section 1 of the Sherman Act...

A Step Back to Square One? California Court of Appeal Elevates UPA Protection of Competitors Over Protection of Competition in Newspaper Ad Dispute

Posted on September 16, 2010
On August 11, 2010, the California Court of Appeal for the First District upheld a jury verdict in favor of plaintiff Bay Guardian Company against defendants New Times Media LLC and San Francisco Weekly, finding that a claim of unfair competition based on below-cost sales of advertising did not require proof of the defendant's ability to recoup losses by subsequent monopoly pricing...

Ninth Circuit Applies New "Quick Look Plus" Test To Invalidate Supermarket Mutual Strike Assistance Agreement

Posted on September 16, 2010
On August 17, 2010, the Ninth Circuit, in an opinion by Judge Steven Reinhardt, issued a potentially significant decision on the intersection between antitrust and labor law. California v. Safeway, Inc., No. 08-55671. The decision resulted from a challenge to collective activity by four Southern California supermarket chains, Albertson's, Von's, Ralph's and Food 4 Less, in response to a strike by the United Food and Commercial Workers ('UFCW') after expiration of a collective bargaining agreement in October, 2003...

Fifth Circuit Dismisses Leegin Resale Price Maintenance Case Anew, Following Supreme Court Remand

Posted on September 16, 2010
In 2007, the United States Supreme Court, updating the application of the cumulative advances in antitrust economics as applied to vertical restraint cases, overruled the venerable Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911)...

Supreme Court Rejects Single Entity Treatment for the National Football League's Licensing Activities

Posted on August 03, 2010
On May 24, 2010, in a unanimous decision authored by Justice Stevens, the Supreme Court of the United States reversed the Seventh Circuit and held that because the 32 teams of the NFL are independent centers of decision-making and could potentially compete with each other for the licensing of their separate intellectual property, 'the NFL's licensing activities constitute concerted action that is not categorically beyond the coverage of [Section 1 of the Sherman Act, 15 U...

China Releases New Draft Monopoly Rules

Posted on August 03, 2010
On May 25, 2010, the Chinese State Administration of Industry and Commerce ('SAIC') released new draft Rules On Monopoly Agreements (the 'Rules') for public comment. SAIC also released draft Rules Prohibiting Abuse Of Dominant Market Position and draft Rules On Administrative Monopoly for public comment on the same day...

No Single Entity Here: California Federal District Court Holds Hospital and Independent Physician Practice Association Can Conspire For Antitrust Purposes

Posted on August 03, 2010
The U.S. District Court for the Eastern District of California recently held that a hospital and a physicians practice association, and a hospital and the physicians that provide services to it under contract, may be sufficiently distinct separate economic actors capable of conspiring with each other under Section 1 of the Sherman Act...

U.K.'s Sweeping Anti-Corruption Legislation Increases Risk for Businesses

Posted on August 03, 2010
The United Kingdom's answer to the Foreign Corrupt Practices Act (FCPA) has arrived. The UK Bribery Act 2010, which received Royal Assent on April 8, 2010, is both stricter and broader than the FCPA. The U.K. Ministry of Justice announced on July 23, 2010, that the implementation of the Act will be delayed until April 2011, which gives companies much-needed time to prepare for the changes it will bring...

Bill Introduced To Secure Reduced Civil Liability For Amnesty Applicants

Posted on June 03, 2010
Three U.S. senators have introduced a bill that would make permanent provisions of the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 (ACPERA) granting reduced civil liability to companies who successfully apply for criminal amnesty under the U...

FTC Gets Shut Down - Once Again - In Its Bid To Change How Courts View Reverse Payment Settlements

Posted on June 03, 2010
As previously reported on this blog, in January 2009, the Federal Trade Commission launched its latest challenge to the legality of reverse payment settlements in the pharmaceutical industry, this time directed at two settlements involving the brand-name drug AndroGel...

Plaintiffs' Failure To Satisfy FTAIA's "Two-Step Dance" Results In Dismissal Of Foreign Purchase Claims

Posted on June 03, 2010
On March 31, 2010, a Federal District Court barred two direct purchasers of hydrogen peroxide and derivative products ('Plaintiffs') from pursuing antitrust damages arising from their foreign product purchases, because Plaintiffs' allegations failed to satisfy the two-step proximate cause requirement of the Foreign Trade Antitrust Improvements Act of 1982 ('FTAIA')...

Antitrust Division Will Not Challenge Health Care Cost Information Exchange Program in California

Posted on June 03, 2010
In a Business Review Letter dated April 26, 2010, the U.S. Department of Justice, Antitrust Division (hereinafter, 'the Division') stated that it would not challenge a data sharing program proposed by three health care associations located in California...

Antitrust Division "Hogties" Smithfield Foods with a $900,000 Civil Penalty for Gun-Jumping

Posted on April 28, 2010
The Antitrust Division of the U.S. Department of Justice recently demonstrated that the antitrust agencies continue to deal sternly with companies who fail to comply with the premerger reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the 'HSR Act')...

Cross-Market Claims Flunk Twombly

Posted on April 28, 2010
In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB Antitrust Litigation in the Eastern District of Pennsylvania...

eBay Auction Sellers' Bid For Class Certification Rejected

Posted on April 28, 2010
On March 4, 2010, Judge Jeremy Fogel of the United States District Court for the Northern District of California granted summary judgment in favor of eBay in a putative antitrust class action lawsuit brought by online auction sellers in 2007. See In re eBay Seller Antitrust Litigation, No...

A Window into Washington: Proposed Legislation to Prohibit Resale Price Maintenance Agreements

Posted on April 28, 2010
Congress has taken preliminary steps to adopt legislation that would restore the rule that minimum resale price agreements between manufacturers and retailers, distributors or wholesalers, violate the Sherman Act without requiring proof of their anticompetitive effects...

Second Circuit Court Of Appeals Rules That Antitrust Complaint Satisfies Twombly Pleading Standards

Posted on February 17, 2010
On January 13, 2010, the United States Court of Appeals for the Second Circuit reversed a district court's dismissal of a class action lawsuit accusing the major record companies of conspiring in violation of the antitrust laws to fix the prices for music purchased on the internet...

Supreme Court Weighs Single Entity Treatment for Pro Sports Leagues

Posted on February 17, 2010
On January 13, 2010, the Supreme Court heard oral arguments in American Needle v. National Football League, Case No. 08-661, which concerns whether the teams belonging to the National Football League should be treated as a single entity or as thirty-two independent entities for antitrust purposes...

Where There Is An "At-Will," There Is A Way

Posted on February 17, 2010
A market share discount engaged in by an alleged monopolist, coupled with a new product innovation that was not compatible with competitor's products, passes Sherman Act scrutiny. Allied Orthopedic v. Tyco Health Care, 08-56314 (9th Cir. January 6, 2010)...

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