Practitioners interested in the real world application of an attempt to monopolize claim under Section 2 of the Sherman Act, will find Savory Pie Guy a “good read” for the New Year. Savory Pie Guy, LLC v. Comtec Industries, Ltd., No. 14-CV-7527, 2016 U.S. Dist. LEXIS 179317 (S.D.N.Y. December 28, 2016). Since the passage of the Sherman Act in 1890, attempted monopolization as a distinct legal theory of liability has received scant attention. It is usually bundled with a set of other but related antitrust theories of liability, including concerted activities in restraint of trade, and often tying and refusal to deal claims. For most of its existence, the theory of attempted monopolization has been under-analyzed intellectually. Savory Pie Guy provides a good and succinct analysis of the distinct elements of an attempt to monopolize claim, and their inter-relationship to the over-arching concept of “monopolization.”
Continue Reading Attempt to Monopolize Claim Fails Where Plaintiff Cannot Establish Approach to Monopoly Power in Properly Defined Relevant Market
Refusal to Sell Bulk-Size Packs, Without More, Is Not Price Discrimination – “Size is Not a Service”
Woodman’s Food Market, Inc. v. Clorox Co., No. 15-3001 (7th Cir. August 12, 2016).
Clorox Sales Company and Clorox Company produce a range of consumer goods. Clorox sold goods to Plaintiff Woodman’s Food Market, a local grocery store with locations in Wisconsin and Illinois. Clorox also sold to discount warehouses such as Costco and Sam’s Club. In 2014, Clorox unilaterally announced that it would sell its large packs only to wholesale discount clubs. Thus, the large bulk-size packs, which had previously been sold to Woodman’s were no longer available to it by direct purchase from Clorox.Continue Reading Refusal to Sell Bulk-Size Packs, Without More, Is Not Price Discrimination – “Size is Not a Service”
Cross Subsidization For Purpose Of Enhanced Grocery Sales Through Alleged Below Cost Gasoline Discounts Found Not To Violate California Unfair Practices Act
Injury to competing retail fuel stations is non-actionable where market conditions demonstrate that an “incipient antitrust violation” is not imminent. Dixon Gas Club LLC v. Safeway Inc., Case No. A139283 (Court of Appeal 1st Dist. July 20, 2015) (not for publication).
Continue Reading Cross Subsidization For Purpose Of Enhanced Grocery Sales Through Alleged Below Cost Gasoline Discounts Found Not To Violate California Unfair Practices Act
American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act
A Matsushita “Quick Look” Analysis Demonstrates that While Plausible, No Evidence Supports An Actionable Conspiracy or Monopoly. Abraham & Veneklasen Joint Venture et al. v. Am. Quarter Horse Ass’n, 776 F.3d 321 (5th Cir. Jan. 14, 2015).
Continue Reading American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act
Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged
While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage. In response to the Supreme Court’s decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968), the Federal Trade Commission issued its Guides for Advertising Allowances and Other Merchandising Payments and Services, codified at 16 CFR, Part 240 (1969). The “Fred Meyer Guides”, as they are generally referred to, were revised in 1990, and most recently in November 2014. In the wake of efforts through the years to better equate the aims and goals of Robinson-Patman enforcement with those of the other antitrust laws, there has been a vigorous debate over modifications. These included proffered amendments suggested by the American Bar Association Section of Antitrust Law, the Antitrust Law Institute, and others.
Continue Reading Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged
Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged
While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage. In response to the Supreme Court’s decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968), the Federal Trade Commission issued its Guides for Advertising Allowances and Other Merchandising Payments and Services, codified at 16 CFR, Part 240 (1969). The “Fred Meyer Guides”, as they are generally referred to, were revised in 1990, and most recently in November 2014. In the wake of efforts through the years to better equate the aims and goals of Robinson-Patman enforcement with those of the other antitrust laws, there has been a vigorous debate over modifications. These included proffered amendments suggested by the American Bar Association Section of Antitrust Law, the Antitrust Law Institute, and others.
Continue Reading Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged
Allegations That Designer Wedding Dress Line Constitutes A Relevant Product Market Found Implausible
Allegations that a highly specialized designer line of wedding dresses lacks reasonable substitutes fail to support allegations of Sherman Act violations for price fixing and group boycott claims. House of Brides etc., v. Alfred Angelo, Inc., Case No. 1:11-cv-07834 (N.D. Ill., December 4, 2014).
Alfred Angelo, Inc. (“Angelo”) is a designer, manufacturer and retailer of wedding products. House of Brides was an authorized Angelo retail dealer for over 40 years. While strictly a designer and manufacturer for many years, Angelo eventually entered into the operation of its own retail stores. Thus, it was engaged in “dual distribution,” in competition with its dealers such as House of Brides.Continue Reading Allegations That Designer Wedding Dress Line Constitutes A Relevant Product Market Found Implausible
Agricultural Cooperative Antitrust Litigation Continues to Mushroom
Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust Litigation, Case No. 2:06-cv-00620, (E.D. Pa. October 17, 2014.)
The multidistrict litigation over alleged price fixing in the mushroom market is one of many antitrust class actions pending against cooperatives in various agricultural industries throughout the United States. These include In Re Fresh & Processed Potatoes Antitrust Litigation, (MDL No. 2186 D. Idaho) and In Re Processed Egg Products Antitrust Litigation, MDL No. 2002 (E.D. Pa.) These cases involve the scope of immunity for agricultural cooperatives pursuant to the Capper-Volstead Act of 1922, 7 U.S.C. §291-292. The Capper-Volstead Act provides agricultural coops with a limited scope of immunity to agree to fix sales prices through “collectively processing, preparing for market, handling, and marketing.”Continue Reading Agricultural Cooperative Antitrust Litigation Continues to Mushroom
Allegations that Defendants Provided Product for “Free” State Claims Under California’s UPA and UCL, Notwithstanding that “Cost” of Product Was Recouped by Overcharging for Shipping
Bebe Au Lait, LLC v. Mothers Lounge, LLC and Udder Covers, LLC, Case No. 5:13-CV-03035-EJD (N.D. Cal. Sept. 23, 2014)
Plaintiff Bebe Au Lait sells nursing covers. It was the first company to make and sell, pursuant to patent, a flexible, convex stiffener located across the top of a nursing cover (“udder cover”) that can be bent to allow a nursing mother to view a nursing infant, and then returned to its original shape.Continue Reading Allegations that Defendants Provided Product for “Free” State Claims Under California’s UPA and UCL, Notwithstanding that “Cost” of Product Was Recouped by Overcharging for Shipping
Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop
In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they purchased eggs from the defendant egg producing cooperatives, and that the plaintiffs had required that defendants provide only eggs that complied with a “certification program.” The defendants were required by the program to certify, for “animal welfare purposes,” that they had expanded the size of the cages for chickens, which was accomplished by reducing the number of chickens in each cage. The complaint alleged that defendant egg producers had conspired to utilize the program as a pretext to reduce the output of eggs by reducing the number of chickens overall. Defendants counterclaimed that the certification program itself was an agreement to restrict output in violation of the antitrust laws.
Continue Reading Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop
Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations
Z Technologies Corp. v. Lubrizol Corp., No. 2:12-cv-12206 (6th Cir., May 23, 2014).
In February, 2007, Lubrizol Corporation made a “merger to monopoly” acquisition of the assets of a competitor. The acquisition established a monopoly in the market for petroleum wax-based oxidates. After the acquisition, Lubrizol increased prices for oxidates in March, July and November, 2007, and again in May, July and September of 2008. In the aggregate, Lubrizol increased its oxidate prices approximately 70% following the acquisition.Continue Reading Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations