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

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 Co., Ltd. v. Hon Hai Precision Industry Co. Ltd., No. 12 Civ. 7465 (SAS) (S.D.N.Y. May 14, 2013) (“Slip Op.”). The Court dismissed the claim pursuant to the Foreign Trade Antitrust Improvements Act (“FTAIA”), finding that plaintiff had failed to allege a direct, foreseeable effect on domestic U.S. commerce. The Court dismissed the case for lack of subject matter jurisdiction under Rule 12(b)(1), rather than for failure to state a claim under Rule 12(b)(6), because it felt bound by Second Circuit precedent to do so. Slip Op. at 18-22.
Continue Reading Foreign Trade Antitrust Improvements Act Defeats Claim Against Holder Of Patent Incorporated Into Industry Standard

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 in Hatch-Waxman cases are subject to antitrust scrutiny, resolving a circuit split and impassioned debate among antitrust lawyers. This is only the second antitrust case in 20 years where the enforcers have prevailed. The Court, however, rejected the FTC’s position that reverse-payment settlements were presumptively illegal, ruling that they are subject to scrutiny under the rule of reason.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 in Hatch-Waxman cases are subject to antitrust scrutiny, resolving a circuit split and impassioned debate among antitrust lawyers. This is only the second antitrust case in 20 years where the enforcers have prevailed. The Court, however, rejected the FTC’s position that reverse-payment settlements were presumptively illegal, ruling that they are subject to scrutiny under the rule of reason.Continue Reading FTC v. Actavis: What Does It Mean for Reverse-Payment Settlements?

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), the Court of Appeal decided that a plaintiff had standing to sue under the Unfair Competition Law (Bus. & Prof. Code Section 17200, et seq.) to enjoin a horizontal competitor’s diversion of business to itself through unlawful means. The Court held that a plaintiff need not be threatened with the type of injury that would be compensable through restitution under Cal. Business and Professions Section 17204 to have standing to pursue an injunction against unfair competition under Section 17203.Continue Reading California Court of Appeal Allows Injunction Under Unfair Competition Law To Prevent Horizontal Competitor From Diverting Business Through Unlawful Means

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 common to class members predominate over any questions affecting only individual members,” when calculating damages with a regression model that did not isolate the effect of specific misconduct. In a 5-4 decision authored by Justice Scalia, the Court held that the class was improperly certified, reversing the decisions of the lower courts.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 common to class members predominate over any questions affecting only individual members,” when calculating damages with a regression model that did not isolate the effect of specific misconduct. In a 5-4 decision authored by Justice Scalia, the Court held that the class was improperly certified, reversing the decisions of the lower courts.Continue Reading Comcast v. Behrend Sets a Higher Bar for Class Certification

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 public comments by April 26, 2013 on draft provisions (for unofficial translation by SMRH, please see here) concerning the evaluation, negotiation, implementation, monitoring, reconsideration of the remedies used in the conditional approvals issued as a result of the pre-merger review process as well as related sanctions. Once the draft provisions are finalized, they will replace the 2010 interim provisions on the acquisition and divesture of assets.Continue Reading MOFCOM Requests Public Comments on Draft Provisions Related to Remedies Imposed in Conditional Approvals

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 vote” and take other steps to prevent plaintiff’s product from gaining approval by a standard setting organization (“SSO”) and an International Standards Organization (“ISO”) of which they were voting members. The Court found that plaintiff had failed to plead a plausible conspiracy because each defendant unilaterally would choose to “decline[] to support a standard that would promote another competitor’s technology.” Advanced Technology Corp. v. Instron, Inc., Civil Action No. 12-10171-JLT, slip op. at 12 (D. Mass. Feb. 26, 2013) (“Instron”). In the Court’s view, there was no reason, therefore, to believe that a conspiracy had taken place.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 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 ARS issuers, respectively, against a number of large financial institutions. The complaints alleged that the financial institutions violated Section 1 of the Sherman Act, 15 U.S.C. § 1, by conspiring to stop purchasing ARS, thereby rendering ARS almost valueless and triggering the collapse of the ARS market. The Second Circuit based its holding upon a principle first announced by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) [see blog article here] — that antitrust complaints must allege sufficient factual matter to allow a fact-finder to plausibly infer that the plaintiffs’ alleged injuries were the result of an unlawful conspiracy, rather than independent parallel business conduct.Continue Reading Second Circuit Rules That Putative Auction Rate Securities Class Action Complaints Failed to Adequately Plead Antitrust Conspiracy