Check out U.S. District Judge Yvonne Gonzalez Rogers’s Rule 52 Order After Trial on the Merits in the Epic Games, Inc. v. Apple Inc. case at Rule 52 Order 9-10-21
The Future of Per Se Antitrust Liability
Leegin as wrecking ball?
Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer.
The effort presents high stakes, principally because per se cases have several advantages over their rule-of-reason cousins. The former are simpler, cost millions of dollars less to work up and try, and have greater odds of success with a judge or jury. The per se rule:
- does not require an economist to opine about the relevant product and geographic markets;
- obviates the need to prove that the defendants had market (or monopoly) power or that their conduct was anticompetitive;
- simplifies proof of damages; and
- precludes defendants from claiming, and presenting evidence, that their agreement enhanced competition.
You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5) appointees in active service. But would the court drink the Kool-Aid?
The court answered on November 25. The panel gave a resounding no.…
High Court Rejects State-Action Defense in Teeth-Whitening Case; State — Not Fox — Must Guard Henhouse
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…
LIBOR Price-Fixing Claims Get Reprieve; Second Circuit Must Hear Appeal, Supreme Court Decides
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…
Illinois Brick Goes Global
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…
Don’t Weep for Apple . . . or Blame the DOJ
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…
Apple Fixed E-Book Prices, Trial Judge Rules
Did Apple collude with publishers to jack up the price of e-books?
You betcha, U.S. District Judge Denise L. Cote ruled in Manhattan today after a three-week trial.
A damages trial will follow.
Apple pursued a nutty defense, which held that it and the publishers did no wrong…
Lack of Motive Dooms Conspiracy Claim in Auction Rate Securities Market, Second Circuit Holds
We've known at least since Bell Atl. Co. v. Twombly, 550 U.S. 544 (2007), that competitors can engage in parallel conduct — charging the same price, offering the same product features, setting identical contract terms — without running afoul of the Sherman Act. A plaintiff claiming a violation of section 1, which bars conspiracies…
State-Action Doctrine Doesn’t Bar Antitrust Claim Against Georgia Hospital Authority
A "substate" governmental entity that engages in conduct that would usually violate the Sherman Act may escape liablity under the state-action doctrine if the "state" directs "substate" to do the anticompetitive deeds. But the state must "'clearly articulate and affirmatively express' state policy to displace competition." Fed'l Trade Comm'n v. Phoebe Putney Health Sys., Inc., No. 11-1160, slip…
Posner Pans Per Se Plea
Seventh Circuit Judge Richard Posner today upheld (with help of course) a ruling against a plaintiff class that accused a pair of firms from the Great White North of scheming with U.S. outfits to raise the price of sulfuric acid, a by-product for the Canadians of smelting non-ferrous metals like nickel and copper.