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08 Feb ' 18:23
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07 Feb ' 12:24
In re American Express Merchants' Litigation - Plaintiffs Survive Three Rounds In The Second Circuit, But Can They Survive The Supreme Court?
Posted on February 7, 2012 by Sheppard MullinBy David Garcia and Leo Caseria
On February 1, 2012, the Second Circuit Court of Appeals decided In re American Express Merchants' Litigation, No. 06-1871-cv, (2d Cir. Feb. 1, 2012) ("AMEX III"), holding, for the third time, that a class action waiver in an arbitration agreement between American Express and plaintiff merchants was unenforceable because it would effectively preclude plaintiffs from vindicating their federal statutory rights under the Sherman and Clayton Acts. The Second Circuit's decision likely sets the stage for Supreme Court review, and a final decision on whether and under what circumstances class action waivers are enforceable in at least federal antitrust cases, and perhaps other types of federal statutory claims as well.
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04 Feb ' 22:16
Higher Filing Thresholds for HSR Act Premerge Notifications and Interlocking Directorates Announced
Posted on January 26, 2012 by Sheppard Mullin1. Higher Thresholds For HSR Filings
On January 24, 2012, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product and will be effective thirty days after publication in the Federal Register. Publication is expected within a week, so the new thresholds will most likely become effective in late February 2012. Acquisitions that have not closed by the effective date will be subject to the new thresholds.
Copyright © 2012, Sheppard Mullin Richter & Hampton LLP. -
28 Dec ' 23:10
Allegations of Conspiracy to Limit Crop Production: Ripe for Analysis Under Capper-Volstead
Posted on December 28, 2011 by Sheppard MullinOn December 2, 2011, the district court denied a motion to dismiss antitrust conspiracy claims against potato grower cooperatives in several states. In re Fresh and Process PotatoesAntitrustLitigation, United States District Court for the District of Idaho, Case No. 4:10-MD-2186-BLW. The plaintiffs alleged that the defendant cooperatives agreed among themselves, through their cooperative structure, to restrict the output of their members by limiting potato planting acreages, paying farmers to destroy existing stocks, and refraining from bringing additional potatoes to market. The alleged purpose of the output-restricting conspiracy was to augment demand among direct purchasers of potatoes, thus driving up prices. The defendant cooperatives moved to dismiss on the ground that the allegations of antitrust conspiracy were immune, pursuant to the federal Capper-Volstead Act of 1922, 7 U.S.C. § 291-292.
RIM Defeats Sherman Act Section 2 Claims At Pleading Stage
Posted on December 28, 2011 by Sheppard MullinBy Thomas D. Nevins In “the latest installment in a contentious litigation”, defendant Research In Motion recently obtained an order granting its motion to dismiss plaintiff Eatoni's claims that RIM violated Section 2 of the Sherman Act and equivalent portions of New York’s Donnelly Act. Eatoni Ergonomics, Inc. v. Research In Motion Corp., No. 08-Civ. 10079 (WHP) (S.D.N.Y. Dec. 5, 2011), Memorandum and Order, p. 1 (Pauley, J.).
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12 Dec ' 05:16
Netflix Wins Summary Judgment Dismissal Of Consumer Class Antitrust Claims
Posted on December 9, 2011 by Sheppard MullinBy
Plaintiff Netflix subscribers alleged that Netflix and Wal-Mart violated Sections 1 and 2 of the Sherman Act by entering into to a horizontal market allocation agreement. In re: Online DVD Rental Antitrust Litigation, No. M 09-2029 PJH, Order Granting Motion For Summary Judgment (N.D. Cal. Nov. 22, 2011). Netflix and Walmart entered into a Promotion Agreement under which Netflix would rent but not sell DVDs online, and Walmart would sell but not rent DVDs online. Walmart would promote DVD rentals by Netflix, and Netflix would promote the sale of DVDs by Walmart. -
14 Nov ' 20:08
No Mandatory Antitrust Review for ACOs
Posted on November 14, 2011 byThe Department of Justice and Federal Trade Commission recently issued their final "Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program" pursuant to the 2010 Patient Protection and Affordable Care Act. The final statement was issued in conjunction with the Department of Health and Human Services' Centers for Medicare and Medicaid Services' final regulations implementing the shared savings program as part of a coordinated interagency effort to facilitate health care provider participation in the shared savings program, so as to achieve the cost savings and improvement in quality of care Congress intended. Both the final statement and CMS' final regulations aim to further encourage and incentivize formation of Accountable Care Organizations and participation in the shared savings program. As such, the final statement includes significant, material changes from the proposed statement of antitrust enforcement policy with respect to ACOs issued earlier this year. (See the April 15 article on the proposed statement.)
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04 Nov ' 11:49
Allegations of Conspiracy to Fix Prices in Ohio Rock Salt Duopoly Flunk "Plausibility" Analysis
Posted on November 4, 2011 by Don T. Hibner, Jr.Creation of duopolistic interdependence by misapplication of a state statute mandating preferential treatment for local producers is an implausible "slippery slope." Erie County v. Morton Salt, Inc., N.D. Ohio, No. 3:11-cv-00364-JGC, 9/19/11.
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21 Sep ' 10:56
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20 Sep ' 17:52
ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim
Posted on September 20, 2011 by Sheppard MullinThe District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an Abbreviated New Drug Application ("ANDA") with the Federal Drug Administration ("FDA"). Shionogi Pharma, Inc. v. Mylan, Inc., United States District Court, District of Delaware, Civil Action No. 10-1077, August 31, 2011. The decision raises a host of interesting and provocative issues relating to the "sham" exception for petitioning activity immunity under the Noerr doctrine. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961) ("Noerr") and Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49 (1993) ("PRE"). In essence, the court held that plaintiff and counter-defendant Shionogi Pharma, Inc. ("Shionogi") could not maintain that Mylan lacked standing to prosecute an antitrust counterclaim by virtue of Shionogi's filing of the underlying patent infringement action, which automatically triggered an ANDA automatic 30-month stay of FDA approval of Mylan's submission.
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22 Aug ' 16:58
China Announces First Administrative Anti-Monopoly Case
Posted on August 22, 2011 by Michael X.Y. ZhangOn July 27, 2011, China’s State Administration for Industry and Commerce (“SAIC”) posted on its website information on the first anti-monopoly case regarding abuse of administrative power to eliminate or restrict competition.
Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury
Posted on August 22, 2011 by Don T. Hibner, Jr.Plaintiff SPX Corporation ("SPX") brought a patent infringement action against Master Cool U.S.A. ("Master Cool"). Master Cool answered and counterclaimed. In its counterclaim, it alleged that SPX had violated Section 2 of the Sherman Act by its utilization of short term exclusive dealing incentive contracts with distributors, which allegedly foreclosed competitive opportunities to Master Cool, SPX's direct competitor. Both SPX and Master Cool sell automotive refrigerant recycling and recovery machines ("ARRR equipment") through distributors. The distributors market the ARRR machines and related services to consumers through catalogs. Through a series of one year distributor contracts with dealers, SPX provided advertising funds that were exclusive to certain SPX products and that were unavailable should a distributor advertise competing products.
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