Plaintiff flunks Twombly-Sprewell "two-step," as the court's judicial notice of admissions adduced during preliminary injunction discovery discloses facts the court found to be inconsistent with plaintiff's theory of the case. RealNetworks, Inc. v. DVD Copy Control Ass'n, 2010-1 Trade Cas. (CCH) Para 76,877 (N.D. Cal. 1/6/10).
On January 13, 2010, the U.S. 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. See Starr v. Sony BMG Music Entertainment, et al., No. 08-5637-cv (2nd Cir., Jan. 13, 2010) (“Starr”). Specifically, applying the heightened pleading standard required by the United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court found that “[t]he present complaint succeeds where Twombly's failed because the complaint alleges specific facts sufficient to plausibly suggest that the parallel conduct alleged was the result of an agreement among the defendants.” While the precise impact of the pleading standard required by Twombly for antitrust cases remains uncertain, for now, the Starr decision will be one that is carefully studied by attorneys bringing, and defending against, antitrust lawsuits.
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 32 independent entities for antitrust purposes. If the former view were to be adopted in this case, the teams in the NFL possibly could enjoy immunity from lawsuits brought under Section 1 of the Sherman Act, which only applies to combinations of two or more entities.
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).
In Safeway Inc. v. Abbott Laboratories, 2010 WL 147988 (N.D. Cal. Jan. 12, 2010), Judge Wilkins of the U.S. District Court for the Northern District of California denied defendant Abbott Laboratories' motion to dismiss predatory pricing and refusal to deal claims set forth in the second amended complaints filed by Direct Purchasers and Abbott's competitor, SmithKline Beecham Corp. ("GSK").
The U.S. Department of Justice has approved the merger of the world's biggest concert promoter and the world's biggest ticket-seller.
On January 13, 2010, the Federal Trade Commission released a study critical of “pay-for-delay” patent litigation settlements by which brand-name drug companies pay generic competitors to keep generic drugs off the market. The same day, the Chairman of the FTC, Jon Leibowitz, and Representatives Chris Van Hollen (D-Md.), Bobby Rush (D-Ill.) and Mary Jo Kilroy (D-Ohio) held a news conference during which they urged Congress to include a provisional banning such settlements in the final health care reform bill.
1. Lower Thresholds For HSR Filings
On January 19, 2010, the Federal Trade Commission announced revised, lower 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. For the first time, the thresholds have been reduced. They will be effective thirty days after publication in the Federal Register. Publication is expected to occur this week. Thus the new thresholds will most likely become effective late February 2010. Acquisitions that have not closed by the effective date will be subject to the new thresholds. Filing persons must wait a designated period of time, usually 30 days, before completing their transactions. The HSR Act imposes premerger notification and waiting period obligations on transactions over a certain size, where the parties are over a certain size, before those transactions may be completed. Each "person" who is a party to an HSR-reportable deal must file an HSR notification with the Department of Justice Antitrust Division and the Federal Trade Commission.
The Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. 06-056059 (9th Cir. Dec. 2, 2009)."
In Electronic Trading Group, LLC v. Banc of America Securities LLC (In re Short Sale Antitrust Litigation), 2009 WL 4350035 (2d Cir. Dec. 3, 2009), the United States Court of Appeals for the Second Circuit affirmed the dismissal of a putative antitrust class action against certain financial institutions that serve as “prime brokers” in connection with short sale transactions, on the ground that the federal securities laws precluded application of antitrust law to the matters at hand. This was the first time the Second Circuit applied the considerations for the implied preclusion of antitrust laws by the securities laws outlined by the United States Supreme Court in Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007).
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