Antitrust Law Blog : Antitrust Lawyer & Attorney : Sheppard Mullin Law Firm : Antitrust Law Blog

In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. Supreme Court, mostly following its decision in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) ("Trinko"), held that a plaintiff cannot bring a valid “price-squeeze” claim under Section 2 of the Sherman Act where (1) the monopolist owes no "antitrust duty" to deal with the plaintiff being “squeezed”, and (2) the monopolist's sales into the downstream market at retail are not below an "appropriate measure of its rival's cost," as defined by the Supreme Court in its decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222-224 (1993) ("Brooke Group").

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Judge William S. Duffey, Jr. of the Northern District of Georgia recently dismissed a complaint brought by direct purchasers of less-than-truckload ("LTL") freight services alleging that defendants, LTL carriers, conspired to fix fuel surcharges from 2003 to 2007. In re LTL Shipping Servs. Antitrust Litig., No. 1:08-MD-01895-WSD (N.D. Ga. filed Jan. 28, 2009). Judge Duffey held that plaintiffs' complaint did not contain sufficient factual allegations to support a plausible inference of conspiracy under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). In an insightful 49-page opinion, Judge Duffey synthesized and applied post-Twombly federal court decisions that have shaped the new pleading standard in antitrust cases.

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California Supreme Court's Kagan analysis is clarified by Proposition 64 spill-over. Meyer v. Sprint Spectrum LP, ___ Cal. __, 2009 WL197560 (January 29, 2009).

In Meyer, the plaintiffs filed a class action alleging violations of the California Unfair Competition Law (“UCL”), the California Consumers Legal Remedies Act (“CLRA”), and for declaratory relief. Plaintiffs claimed that Sprint Spectrum (“Sprint”) improperly included certain illegal and unconscionable terms in its customer service agreement, including: (1) a requirement that the parties submit disputes under the customer service agreement to binding arbitration, (2) a waiver of the right to jury trial, (3) a waiver of class action rights in arbitration, (4) a failure to provide for discovery before arbitration, (5) unconscionable arbitration costs-splitting provisions, (6) a disclaimer of warranties and a limitation and liability, (7) the right of Sprint to unilaterally change the terms of the customer service agreement, and (8) a 60-day limitation period for initiating billing disputes. Plaintiffs did not allege, however, that Sprint had asserted or threatened to assert these terms against them. In the wake of the passage of Proposition 64 in November 2004, which changed the standing requirements for a UCL claim under California Business and Professions Code section 17204, Sprint demurred to plaintiffs’ fourth amended complaint, alleging lack of standing. The trial court sustained the demurrer without leave to amend. The Court of Appeal for the Fourth Appellate District affirmed. See Meyer v. Sprint Spectrum L.P., 150 Cal. App. 4th 1136 (2007).
 

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The website of the Anti-monopoly Bureau of the Ministry of Commerce (“Anti-monopoly Bureau”) has become “the must-see site” for antitrust lawyers practicing in China. See http://fldj.mofcom.gov.cn/. Since the beginning of 2009, the Anti-monopoly Bureau has used the site to announce six drafts of various provisions and guidelines, and two transitional guidelines regarding implementation of a new pre-merger filing system under the Anti-monopoly Law.

Following the announcement of thresholds for pre-merger filing in China, Anti-monopoly Bureau is actively constructing the new pre-merger filing system in compliance with the Anti-monopoly Law and working to clarify vague areas of the new law.

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On January 29, 2009, the Federal Trade Commission ("FTC"), in conjunction with California's Attorney General, launched its latest challenge to reverse payment settlements in the pharmaceutical industry, Fed. Trade Comm'n et al. v. Watson Pharm., Inc. et al., 09-cv-00598 (AHM) ("Watson"). In a press release announcing the action, the FTC stated that "'[t]oday's action reaffirms the Commission's commitment to protect American consumers from artificially high prescription drug prices that result when branded and generic pharmaceutical companies decide to collude rather than compete."[i]

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