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In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media content for hotels”.  Plaintiff Pro Search (“Pro Search”) alleged that defendant VFML Leonardo, Inc. (VFML”) violated Sections 1 and 2 of the Sherman Act by entering into exclusive-dealing agreements which allegedly excluded Pro Search from participation in the defined relevant market.  Pro Search alleged that VFML had approximately 80% of the relevant market.  Nevertheless, the U.S. District Court for the Central District of California, sitting in Santa Ana, dismissed the First Amended Complaint (“FAC”) on the ground that the contracts were “a short duration and easily terminable”.  This was so notwithstanding that the duration of the contracts in issue were two to three years in a number of situations, and five years in another.  Pro Search Plus LLC v. VFM Leonardo, Inc., U.S.D.C., Central Dist. of California, Case No. SACV 12-2102-JST (ANx), July 30, 2013.
Continue Reading De Facto Exclusive Dealing: What a Difference a Day Makes

GULF STATES REORGANIZATION GROUP, INC. V. NUCOR CORP. (11th Cir. July 15, 2013) No. 11-14983.

In 1999, Gulf States Steel, Inc., a participant in a market described as “black hot rolled coil steel” filed a petition for bankruptcy. When reorganization efforts failed, and it filed a Chapter 7 petition, a group called Gulf States Reorganization Group (“GSRG”) negotiated with the Bankruptcy court to purchase and operate the “black hot rolled coil steel” assets. The Bankruptcy court issued an order requiring the sale of the assets to GSRG, unless another entity made a higher bid. In that eventuality, an auction would be held.Continue Reading Failure to Adequately Allege Lack of Supply Cross-Elasticity Dooms Attempted Monopolization Action to “Quick Look” Dismissal

The Federal District Court for the Central District of California, sitting in Santa Ana, recently dismissed antitrust claims in an action between competitors in a market described as the management and distribution of “photographs in rich media content for hotels.” As described in the first amended complaint, a hotel wishing to advertise or distribute visual or “rich content” through an online travel agency must use an intermediary, described as a “Global Distribution System” (“GDS”) or “Pegasus”. Plaintiff Pro Search alleges that defendant VFML violated Sections 1 and 2 of the Sherman Act by entering into exclusive dealing agreements with all of the GDS companies, as well as an exclusive dealing agreement with Pegasus. There are four GDS in the alleged geographic market. The contracts with GDS and Pegasus are alleged to constitute the “core of VFML’s monopoly.” Pro Search claims that it has been excluded from accessing the GDS and Pegasus, which are described as “essential intermediaries in the industry”. Pro Search alleges that VFML has a relevant market share of approximately 80%. The court dismissed the Sherman Act claims with leave to amend. Pro Search Plus, LLC v. VFM Leonardo, Inc., U.S.D.C., Central District of California, Case No. SACV 12-2102-JST (ANx), July 30, 2013.
Continue Reading Antitrust Exclusive Dealing Claims Given “Short-Shrift” in Dismissal. How Long Is Short? An Analysis in Search of Context

Conclusary allegations of parallel business conduct which are in the economic self-interest of the actor do not state an actionable antitrust claim. Duty Free Americas, Inc. v. The Estée Lauder Companies, Inc., Case O: 12-cv-60741-RNF (S.D. Fla. May 9, 2013).

Duty Free Americas, Inc. (DFA) is an operator of duty-free beauty products stores in airports. For a period of years, it purchased products from Estée Lauder Companies, Inc. (ELC). ELC is the largest manufacturer of beauty products sold in duty-free shops in US airports. According to a complaint filed by DFA in the U.S. District Court, Southern District of Florida, ELC’s marketshare is “approximately 50% or greater”.Continue Reading Claims of Providing Truthful Marketing Information to Airports Issuing Bids for Duty Free Shops Fails to Allege Actionable Conspiracy or Attempted Monopolization

On 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 Potatoes Antitrust Litigation, 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.
Continue Reading Allegations of Conspiracy to Limit Crop Production: Ripe for Analysis Under Capper-Volstead

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.
 Continue Reading Allegations of Conspiracy to Fix Prices in Ohio Rock Salt Duopoly Flunk “Plausibility” Analysis

The 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.
 Continue Reading ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim

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.
 Continue Reading Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury

Plaintiff Océ North America, Inc. ("Océ") brought an action against a service market supplier for copyright infringement. Defendant MCS Services, Inc. ("MCS") filed a Kodak-style "aftermarket" monopolization counterclaim, in addition to a series of common law torts, including tortuous interference with contractual relations, and prospective advantage. Finding the antitrust allegations of the counterclaim to be "implausible", the district court for the District of Maryland dismissed that claim, while allowing the tortuous interference claims to continue. Océ North America, Inc. v. MCS Services, Inc., D.Md., No. 1:10-CV-984-WMN, 6/14/11.
 Continue Reading Aftermarket Monopolization Claims Dismissed as Afterthought