Tag Archives: Articles

Failure to Adequately Allege Lack of Supply Cross-Elasticity Dooms Attempted Monopolization Action to “Quick Look” Dismissal

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 … Continue Reading

Antitrust Investigations in China: Putting Things in Perspective

The current press is buzzing with news about the recent increase in antitrust investigations involving foreign companies with operations in China, and reports of foreign companies being told to expect higher fines if they “put up a fight” during investigations. At the same time, the Chinese enforcement agencies have started to make their decisions public. … Continue Reading

Antitrust Exclusive Dealing Claims Given “Short-Shrift” in Dismissal. How Long Is Short? An Analysis in Search of Context

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 … Continue Reading

China Hands Milk Producers the Largest Anti-Monopoly Violation Fine

On August 7, 2013, the National Development and Reform Commission (“NDRC”) fined six powdered milk companies – five foreign and one Hong Kong-based – RMB668 million (approximately US$109 million) for engaging in anti-competitive practices and illegal price-fixing, the largest fine ever for an Anti-Monopoly Law (“AML”) violation in China.… Continue Reading

Disfavored Purchaser Loses Robinson-Patman Act and Sherman Act Section 1 Claims Against Favored Buyer

The Ninth Circuit Court of Appeals recently issued an opinion on a rare legal issue: buyer liability for violations of the Robinson-Patman Act. Gorlick Distribution Centers, LLC v. Car Sound Exhaust System, Inc., No. 10-36083 (9th Cir. July 19, 2013). The Gorlick court relied extensively on the Supreme Court’s opinion in Automatic Canteen Co. of … Continue Reading

Dang v. San Francisco Forty Niners – Consumers can challenge Reebok’s exclusive NFL apparel deal based just on a market of garments bearing NFL team logos

On August 2, 2013, District Judge Edward J. Davila denied a motion to dismiss antitrust claims brought by consumers of NFL apparel against Reebok and the NFL in Dang v. San Francisco Forty Niners, Case No. 5:12-CV-5481 (N.D. Cal.). Plaintiff seeks to represent a class of NFL apparel purchasers who were allegedly overcharged as a … Continue Reading

Qihoo 360 v. Tencent: A Landmark Decision under China’s Anti-Monopoly Law

On March 29, 2013, the Guangdong High People’s Court ruled that Tencent, Inc. (“Tencent”) did not violate China’s Anti-Monopoly Law (“AML”). In the first lawsuit of its kind, Beijing Qihoo Technology Co. Ltd. (“Qihoo”) sued Tencent under the AML, claiming Tencent was engaging in anti-competitive behavior. They sought ¥150 million in damages and an injunction … Continue Reading

American Express Co. v. Italian Colors Restaurant: A class action waiver in an arbitration agreement will be strictly enforced under the Federal Arbitration Act

*This article was featured in SCOTUSBlog. The Supreme Court on June 20 continued its recent trend of strictly enforcing the terms of arbitration agreements, holding that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery. … Continue Reading

Claims of Providing Truthful Marketing Information to Airports Issuing Bids for Duty Free Shops Fails to Allege Actionable Conspiracy or Attempted Monopolization

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. … Continue Reading

Foreign Trade Antitrust Improvements Act Defeats Claim Against Holder Of Patent Incorporated Into Industry Standard

Plaintiff alleged that defendants, which were affiliates of each other, held patents that were essential for plaintiff to manufacture and market USB 3.0 connectors that complied with a standard adopted by the industry for such connectors. Defendants assertedly refused to license those patents to plaintiff for certain connectors despite being obligated to do so. Lotes … Continue Reading

FTC v. Actavis: What Does It Mean for Reverse-Payment Settlements?

By Bradley Graveline and Jennifer Driscoll-Chippendale  On June 17, 2013, the United States Supreme Court announced a rule that blurs the lines between antitrust and patent law in the context of Hatch-Waxman litigation. In FTC v. Actavis, 570 U.S. 756 (2013), the Federal Trade Commission (“FTC”) prevailed when the Supreme Court held in a 5-to-3 decision [1] that reverse payment settlements … Continue Reading

California Court of Appeal Allows Injunction Under Unfair Competition Law To Prevent Horizontal Competitor From Diverting Business Through Unlawful Means

By Thomas D. Nevins For many years, California’s Unfair Competition Law had no traditional standing requirements. But since the passage of Proposition 64 in 2004, standing has been required, and standing continues to be litigated regularly. In Law Offices of Higbee v. Expungement Assistance Services, __ Cal.App.4th ___, No. G046778 (4th Dist. March 14, 2013), … Continue Reading

Comcast v. Behrend Sets a Higher Bar for Class Certification

By Jennifer Driscoll-Chippendale  On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of certification satisfied Federal Rule of Civil Procedure 23(b), which requires that “questions of law or fact … Continue Reading

MOFCOM Requests Public Comments on Draft Provisions Related to Remedies Imposed in Conditional Approvals

By Becky Koblitz  Since the Anti-monopoly Law (“AML”) has come into effect in August 2008, MOFCOM has issued 16 conditional approvals requiring certain structural or behavioral remedies in order to prevent the anticompetitive consequences that, from MOFCOM’s perspective, could arise as a result of the transaction. On March 27, 2013, the Ministry of Commerce (“MOFCOM”) requested … Continue Reading

Court Finds No Inference of Conspiracy Arising From Members of Standard Setting Organization Pursuing Self Interest In Refusing To Approve Plaintiff’s Competing Technology

By Thomas D. Nevins  The Massachusetts United States District Court granted a Rule 12(b)(6) motion dismissing antitrust claims brought under Section 1 of the Sherman Act by a company that had invented a new technology for testing metallic materials. Plaintiff alleged that defendant horizontal competitors, whose technology allegedly was inferior, had conspired to “stack the … Continue Reading

Second Circuit Rules That Putative Auction Rate Securities Class Action Complaints Failed to Adequately Plead Antitrust Conspiracy

By Rena Andoh  In Mayor and City Council of Baltimore v. Citigroup, Inc., No. 10-0722-cv(L) and 10-0867-cv(CON), 2013 WL 791397 (2d Cir. Mar. 5, 2013), the United States Court of Appeals for the Second Circuit upheld the dismissal of two related class action complaints brought on behalf of purchasers of auction rate securities (“ARS”) and … Continue Reading

California Supreme Court Resolves Split Over Accrual Rules for Unfair Competition Claims

The California Supreme Court has offered hope to plaintiffs facing statute of limitations problems under California’s Unfair Competition Law, holding that special rules for calculating accrual dates for so-called “continuing wrongs” can, in some cases, apply to UCL claims. In Aryeh v. Canon Business Solutions, Inc., __ Cal. 4th __ (Jan. 24, 2103), the Supreme … Continue Reading

In a Rarely-Seen Joint-Effort in the Competition Arena, the DOJ and the USPTO Unite in Issuing a Policy Statement on Remedies Involving Standard Essential Patents

By Mona Solouki On January 8, 2013 – less than a week after the Federal Trade Commission ("FTC") entered into a consent order with Google,[1] under which Google is generally banned from seeking injunctions on its F/RAND[2] -encumbered standard essential patents ("SEPs")[3] – the United States Department of Justice ("DOJ") banded together with the United … Continue Reading

Challenge To Alleged Restraints On Baseball And Hockey Programming Survive Motion To Dismiss And Advance To The Next Round Of Litigation

By David Garcia and Leo Caseria Have you ever been away from home when your favorite baseball or hockey team is playing an important game? Ever wished you could watch that game, and just that game, live while you are on the road? If plaintiffs in Laumann v. Nat’l Hockey League, Case No. 1:12-cv-01817 (S.D.N.Y.) … Continue Reading

Supreme Court Will Now Hear Two Appeals Concerning Class Arbitration

By David Garcia and Leo Caseria On Friday, December 7, 2012, the Supreme Court granted certiorari in Oxford Health Plans LLC v. John Ivan Sutter MD, No. 12-135 to address whether the parties to an arbitration agreement authorize class arbitration when the agreement provides that “any dispute” will be submitted to arbitration. The Third Circuit’s decision in Oxford, … Continue Reading

JFTC Releases Survey on Corporate Compliance Efforts and Recommends Best Practices

On November 28, 2012, the Japan Fair Trade Commission (“JFTC”) published the findings of its 2012 survey of corporate compliance practices based on (i) responses from approximately 879 companies listed on the Tokyo Stock Exchange; (ii) interviews of six attorneys specializing in corporate or antitrust law; and (iii) interviews of 82 companies with informative examples … Continue Reading

Large General Acute-Care Hospital Abandons Acquisition Of 15-Bed Surgical Specialty Center As A Result Of FTC Challenge

By David R. Garcia Just three days after the Federal Trade Commission, jointly with the Pennsylvania Attorney General, issued an administrative complaint challenging Reading Health System’s (RHS) proposed acquisition of Surgical Institute of Reading L.P. (SIR), a 15-bed surgical specialty center, both entities abandoned the proposed acquisition, citing the high costs associated with a protracted … Continue Reading
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