Archives: Antitrust

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Patent as the New Antitrust

By Barry Barnett on Posted in Antitrust, Intellectual Property
Antitrust v. patent The extraordinary risk in antitrust cases has prompted courts to erect ever-higher hurdles to them. Extending a trend that began decades before, the Supreme Court used a sprawling antitrust case — Bell Atl. Corp. v. Twombly (2007) — to toughen the test for pleading a claim. It warned about the high costs of “false positives” and … Continue Reading

Per Se Melee in E-books Case — Part 2

By Barry Barnett on Posted in Antitrust, Class Actions
Review In the last post, I went over the basics of the Second Circuit’s 2-1 antitrust ruling against Apple in United States v. Apple, Inc., No. 13-3741-cv (2d Cir. June 30, 2015). Apple, you will recall, served as the hub of a hub-and-spoke conspiracy that had five spokes — each of them a book publisher — to … Continue Reading

Per Se Melee in E-books Case — Part 1

By Barry Barnett on Posted in Antitrust, Class Actions
Apple’s loss Two years ago, on July 10, 2013, the United States and 33 states and territories won a bench trial against Apple for its role in a conspiracy to fix prices on electronic book (e-books). On June 30, 2015, two members of a three-judge Second Circuit panel upheld the judgment against Apple under section one … Continue Reading

Welcome to the new blog!

By Barry Barnett on Posted in Antitrust
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Price-Fixing Claims Parry Field Preemption in Supreme Court

By Barry Barnett on Posted in Antitrust
Pre-emption? Ha! A 7-2 split on the U.S. Supreme Court last week revived state-law antitrust claims against natural-gas pipelines. End-user (or retail) customers alleged that the pipelines conspired to rig index prices and thus inflate sales prices. The ruling gave narrow play to the pipelines' "field pre-emption" defense. The Court held that a federal agency's … Continue Reading

High Court Rejects State-Action Defense in Teeth-Whitening Case; State — Not Fox — Must Guard Henhouse

By Barry Barnett on Posted in Antitrust
State action? The U.S. Supreme Court ruled today that a North Carolina board's ban on cheap teeth-whitening by non-dentists may expose the board's members to a federal antitrust claim despite the board's status as a creature of the state. N. Carolina State Board of Dental Examiners v. FTC, No. 13-534 (U.S. Feb. 25, 2015). The 6-3 Court stressed that the "state-action" … Continue Reading

Why Comcast Corp. v. Behrend Went Off the Air

By Barry Barnett on Posted in Antitrust, Class Actions
In Roach v. T.L. Cannon Corp., No. 13-3070-cv (2d Cir. Feb. 10, 2015), the Second Circuit gave a narrow reading of the Supreme Court's ruling on class certification in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).* The outcome does not surprise Blawgletter, who had the honor of arguing Comcast Corp. v. Behrend on behalf of … Continue Reading

GM Rebate Saves Parts Seller from Below-Cost Predatory Pricing Claim, Fifth Circuit Rules

By Barry Barnett on Posted in Antitrust
A beastly hard theory The latest antitrust ruling by the Fifth Circuit favors a giant, General Motors, despite its huge share of the parts market that the plaintiff accused it of monopolizing. But the case says less about the Fifth Circuit's pro-defense leanings than it does about the steep odds against predatory-pricing cases in general. … Continue Reading

LIBOR Price-Fixing Claims Get Reprieve; Second Circuit Must Hear Appeal, Supreme Court Decides

By Barry Barnett on Posted in Antitrust, Class Actions
Unanimous Court orders review of key district court ruling  The Second Circuit made a mistake when it refused to hear an appeal, the Supreme Court held 9-0 today in Gelboim v. Bank of Am. Corp., No. 13-1174 (U.S. Jan. 21, 2015); see Supreme Court Takes LIBOR Case, Blawgletter®, July 1, 2014. The Court's ruling will hasten – by … Continue Reading

Illinois Brick Goes Global

By Barry Barnett on Posted in Antitrust, Class Actions
Dear Blawgletterati: A rebuke Drop dead, the Seventh Circuit on November 26 told U.S. firms that want to collect treble damages under the Sherman Act for fixing prices on their foreign subs' purchases overseas. Either have your subs buy the stuff in the U.S., the panel ruled, or purchase the goods for import into the … Continue Reading

Use of Phony Benchmark Rate Supports Bad Faith Claim, Second Circuit Holds

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts, Energy
Good faith and fair dealing New York law "implies" a duty in all contracts — a duty to perform promises in good faith.*  Does that mean a party must adjust a contractual benchmark rate if it knows something has distorted the benchmark? Yes, the Second Circuit held in Security Plans, Inc. v. CUNA Mut. Ins. … Continue Reading

Guest Post: “The Everything Store” — Can You Buy a Monopsony on Amazon?

By Barry Barnett on Posted in Antitrust, Class Actions
You have a special treat today. Hollis Salzman and Meegan F. Hollywood at Robins, Kaplan, Miller & Ciresi L.L.P. in New York have written a timely Guest Post on an important and exotic antitrust topic — monopsony. Ms. Salzman serves as Co-Chair of Robins Kaplan's Antitrust and Trade Regulation Group and as co-lead counsel in blockbuster antitrust class … Continue Reading

Fight Breaks Out over Midcourse MDL Review

By Barry Barnett on Posted in Antitrust, Class Actions, Commercial, Corporate, and Contracts
A Question of Efficiency Will quick review of a final judgment in just one of many cases that make up a large multi-district litigation bog the MDL process down  — or make it work better? Defense lawyers insist that consolidation of cases before a single district judge (by the U.S. Judicial Panel on Multidistrict Litigation) changes … Continue Reading

Supreme Court Takes LIBOR Case

By Barry Barnett on Posted in Antitrust, Class Actions
Get ready for the Supreme Court to resolve a question that has divided courts of appeals for years: Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable? If that doesn't sound sexy enough for you, consider that the issue arises in massive litigation over … Continue Reading

Don’t Weep for Apple . . . or Blame the DOJ

By Barry Barnett on Posted in Antitrust, Class Actions
Apple settles Apple has settled up to $841 million of antitrust claims by state attorneys-general and a nationwide class of consumers who bought e-books from Apple and its publisher co-conspirators. The pact comes almost a year after U.S. District Judge Denise Cote in New York held Apple civilly liable for conspiracy to fix prices, a violation … Continue Reading

Non-U.S. Claimants Get Boost from Antitrust Ruling

By Barry Barnett on Posted in Antitrust
Foreign firms lose billions Every year, non-U.S. firms overpay billions and billions of dollars for goods and services as a result of price-fixing, collusive market-splitting, and other restraints of trade. But many of the firms can get no relief in a U.S. court. The reason? A U.S. statute — the Foreign Trade Antitrust Improvements Act (FTAIA) – generally exempts from … Continue Reading

Susman Godfrey Associate Wins Antitrust Appeal

By Barry Barnett on Posted in Antitrust
A Chance to Shine How often do fourth-year associates get an opportunity to argue before a U.S. court of appeals? That sort of thing occurs a lot at the place where Blawgletter has worked since 1985. It happened most recently to Amanda Bonn, an associate in Susman Godfrey's Los Angeles office. Let us tell you the story. A … Continue Reading

RICO Can Reach Across the Pond, Second Circuit Holds

By Barry Barnett on Posted in Antitrust, Securities
Get ready, folks, for a new wave of cases under the Racketeer-Influenced and Corrupt Organizations Act of 1970 — RICO, for short. The Second Circuit ruled this week that a case by the European Community and EC member states may proceed with a RICO case against RJR Nabisco for money laundering and worse. European Community v. RJR … Continue Reading

DuPont Deflects Kevlar Antitrust Claim

By Barry Barnett on Posted in Antitrust
Do federal judges protect their own? Before Blawgletter suggests an answer, let’s look at the case that raises the question. The Fourth Circuit upheld a summary judgment for E. I. DuPont de Nemours & Co., ruling that the South Korean plaintiff, Kolon Industries Incorporated, failed to raise a fact issue either as to DuPont’s “monopoly … Continue Reading

State AG’s Lawsuit Belongs in State Court, Supreme Court Holds

By Barry Barnett on Posted in Antitrust, Class Actions
A 9-0 Supreme Court today ordered a federal district court to remand a case seeking restitution for all Missippians who overpaid for liquid crystal displays (LCDs) back to state court. The lawsuit, by the Attorney General of Mississippi, accused LCD makers of conspiring to fix prices, in violation of Mississippi antitrust and consumer protection statutes. The manufacturers removed … Continue Reading

Sherman Act Ruling Favors Milk Buyers

By Barry Barnett on Posted in Antitrust, Class Actions
In 2001, the two biggest sources of the milk that you buy at Stop-n-Shop, Whole Foods, Von's, and the like agree to merge. A sluggish Antitrust Division of the U.S. Department of Justice okays the deal but tacks on a proviso that the dairy dukes — Dean Foods and Suiza — must divest a few … Continue Reading

Attack on Standing Fails to Sink $24 Million Qui Tam Claim in Fourth Circuit

By Barry Barnett on Posted in Antitrust, Commercial, Corporate, and Contracts
The Fourth Circuit reversed a judgment that awarded nothing — zilch — on a winning $50 million False Claims Act claim for civil penalties. The panel first ruled that FSA relator Kurt Bunk had "standing" to sue under the statute despite his lack of personal injury. The harm to the federal government (from a scheme … Continue Reading
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