On October 17, 2017, Judge Mitchell S. Goldberg of the United States District Court for the Eastern District of Pennsylvania dismissed monopolization claims brought by the Attorneys General of several states against Reckitt Benckiser Healthcare (UK) Ltd. (“RBH”) premised on an alleged “product hopping” scheme designed to prevent or delay less expensive generic versions of the drug Suboxone from entering the market.  In re Suboxone (Buphrenorphine and Naloxone) Antitrust Litigation, No. 13-MD-2445, 2017 WL 4642285 (E.D. Pa. Oct. 17, 2017).  In so doing, the Court held that the mere fact that two subsidiaries are owned by a common parent is not sufficient either to consolidate the alleged market power of the two firms for the purpose of assessing monopoly power or to attribute the actions of one subsidiary to the other in evaluating allegations of exclusionary conduct. 

Read more

On October 16, 2017, Judge Denise J. Casper of the United States District Court for the District of Massachusetts granted class certification to two classes of purchasers allegedly injured by a pay-for-delay scheme relating to prescription drug Solodyn:  a Direct Purchaser Plaintiff class (“DPPs”) and an End-Payor Plaintiff class (“EPPs”).  In Re Solodyn (Minocycline Hydrochloride) Antitrust Litig., No. 14-md-02503 (D. Mass. Oct. 16, 2017).  In certifying the DPP class, the Court rejected the argument that affiliated corporate entities should be consolidated in evaluating the numerosity requirement of Federal Rule of Civil Procedure 23(a).  In certifying both classes, the Court accepted the plaintiffs’ experts’ proffered methodologies to establish common or class-wide impact as adequate for Rule 23 purposes over a variety of defense challenges.

Read more

On October 2, 2017, a divided panel of the United States Court of Appeals for the Third Circuit released a ruling affirming the decision by U.S. District Judge Richard G. Andrews of the District of Delaware to grant summary judgment to the defendant E. I. Du Pont De Nemours & Co. on a Sherman Act, Section One claim alleging price fixing in the sale of titanium dioxide on the grounds that the plaintiff had not shown sufficient evidence of an “actual agreement to fix prices.” Valspar Corp. v. E. I. Du Pont De Nemours and Co., No. 16-1345 (3d Cir. Sept. 14, 2017).  Writing for the majority, Judge Hardiman rejected much of the plaintiffs’ proffered evidence of conspiracy because it established no more than conscious parallelism and interdependent conduct in an oligopolistic market, and was therefore insufficient to prove the essential element of an agreement as required by Section One.  Also lacking, the Court found, was evidence of a “traditional conspiracy,” i.e., “proof that the defendants got together and exchanged assurances of common action or otherwise adopted a common plan even though no meetings, conversation, or exchanged documents are shown.” Id. at 11-12.  This case illustrates the Third Circuit’s continuing practice of requiring a searching analysis of both the particular evidence and the market context in evaluating ambiguous evidence of conspiracy in Sherman Act cases, and reinforces the importance of carefully examining the relevant Circuit law in making forum choices.   

Read more

On September 15, 2017, Judge James E. Gritzner of the United States District Court for the Southern District of Iowa granted a motion to dismiss antitrust claims filed against PepsiCo Inc. and its bottler-distributor subsidiary by an independent bottling company.  Mahaska Bottling Co. v. PepsiCo Inc., No. 4:16-cv-00114-JEG (S.D. Iowa Sept. 15, 2017).  In so doing, Judge Gritzner rejected the bottler’s proffered “price squeeze” theory and its other allegations of exclusionary conduct under Section 2 of the Sherman Act, as well as its proffered market definition, and found that Mahaska had failed to allege harm to competition or, relatedly, antitrust injury.  The Court also dismissed claims brought under the Robinson-Patman Act and Iowa state antitrust statutes.  While this case does not break new ground, it is useful in demonstrating again the difficulties that a distributor faces in asserting antitrust claims against a supplier that the distributor believes is seeking to end the relationship, even with unusual “in perpetuity” exclusive arrangement at issue here.     

Read more

On August 21, 2017, in an unpublished, split panel decision, the Ninth Circuit affirmed U.S. District Judge Jesus G. Bernal’s decision granting summary judgment in favor of UPS and FedEx on AFMS LLC’s antitrust suit under § 1 of the Sherman Act.  AFMS, a firm that offered rate negotiation and consulting services for package shippers, alleged that UPS and FedEx conspired to boycott third-party consultants such as AFMS who negotiated rates for their customers, including by threatening to discontinue the rate discounts for any shippers who continued to use intermediaries.  After providing AFMS with three opportunities to amend its complaint, the U.S. District Court finally dismissed the claims with prejudice in April 2015 because AFMS had not properly defined a market impacted by the alleged agreement.

Read more

On June 26, 2017, a three-judge panel of the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a putative class action brought by professional minor league baseball players (“Players”) against the former commissioner of major league baseball and all thirty major league franchises (collectively “Major League Baseball” or “MLB”).  Miranda v. Selig, No. 15-16938 (9th Cir. 2017).  Players alleged that MLB’s hiring and employment policies violated federal antitrust laws and argued that minor league players did not fall within the well-established antitrust exemption for the business of baseball.  Invoking the judicial principle of stare decisis, the panel held unanimously that the baseball exemption applied to Players’ claims and affirmed the lower court’s dismissal.

Read more

​On June 8, 2017, Judge Andrew L. Carter of the United States District Court for the Southern District of New York granted defendant energy companies’ motion to dismiss claims brought by two putative classes of derivatives traders and landowners, finding that plaintiffs failed to sufficiently allege that they suffered an antitrust injury linked to defendants’ alleged conduct in the relevant markets.  In re: North Sea Brent Crude Oil Futures Litigation, Case No. 1:13-md-02475 (S.D.N.Y. Jun. 8, 2017).  Plaintiffs, a putative class of landholding interests in U.S. oil-producing property and a putative class of futures and derivatives traders, alleged that defendants conspired to intentionally manipulate Brent crude oil prices and the prices of Brent crude oil futures and derivatives contracts traded on the New York Mercantile Exchange (“NYMEX”) and the Intercontinental Exchange (“ICE Futures Europe”) in violation of the Sherman Act (as well as other federal and state laws).  Brent crude is crude oil pulled from the North Sea region of Europe.  In dismissing the Sherman Act claims, the district court found that plaintiffs had not suffered any antitrust injury, and therefore did not have standing as plaintiffs under Section 4 of the Clayton Act.   

Read more