Justia Antitrust & Trade Regulation Opinion Summaries

Plaintiff challenged the National Association of Realtors’ ("NAR") Clear Cooperation Policy, which required members of a NAR-affiliated multiple listing service who chose to list properties on the Plaintiff’s real estate database also to list those properties on an MLS. The district court dismissed on the ground that Plaintiff did not, and could not, adequately allege antitrust injury under Section 1 of the Sherman Act or California’s Cartwright Act because it did not allege harm to home buyers and sellers.   The Ninth Circuit reversed the district court’s dismissal of an action brought by Plaintiff alleging that its competitors in the real estate network services market violated antitrust laws because they conspired to take anti-competitive measures to prevent Plaintiffs from gaining a foothold in the market. The court held that Plaintiff adequately alleged a violation of Sherman Act Section 1, which prohibits a contract, combination, or conspiracy that unreasonably restrains trade. The court held that Plaintiff adequately alleged that the Clear Cooperation Policy was an unreasonable restraint of trade because it was a per se group boycott, but the court left it to the district court to determine in the first instance whether it should apply per se or rule of reason analysis at later stages in the litigation. View "THE PLS.COM, LLC V. NAR" on Justia Law

The Supreme Court reversed the judgment of the court of appeals affirming the trial court's judgment for Plaintiff, a cardiovascular surgeon who sued Defendant, a hospital and Plaintiff's former employer, for engaging in a retaliatory "whisper campaign" against him, holding that the lower courts erred.After leaving the employment of Defendant for a new rival, Plaintiff brought this complaint alleging that Defendant used faulty data on his patients' mortality rates to suppress competition and injure his reputation and practice. The jury rejected Plaintiff's anticompetition claims but concluded that the hospital had defamed him and disparaged his professional association. The trial court granted summary judgment for Plaintiff, and the court of appeals affirmed. At issue on appeal was how a reasonable juror would interpret the charge that was given for the defamation and business disparagement claims. The Supreme Court held (1) the plain text of the charge must be given its commonsense meaning in the context of the case; and (2) the trial court erred in awarding Plaintiff damages for defamation and business disparagement. View "Memorial Hermann Health System v. Gomez" on Justia Law

A dentist, his professional corporation, and a teledentistry company (collectively "Plaintiffs") alleged that the Dental Board of California conspired to harass them with unfounded investigations. Plaintiffs alleged that the harassment arose after they developed an online service model for patients.   The Ninth Circuit affirmed the district court’s dismissal of the Plaintiffs’ claims under the Dormant Commerce Clause. The court reasoned that Plaintiffs sufficiently alleged Article III standing because they alleged an injury that was traceable to Defendants’ challenged conduct. Further, the court found that Plaintiffs sufficiently alleged anticompetitive concerted action. The court rejected the proposition that regulatory board members and employees cannot form an anticompetitive conspiracy.   Further, the court affirmed the district court’s dismissal of the Plaintiffs’ claim that Defendants subjected them to disparate treatment in violation of the Equal Protection Clause. The court explained that a class-of-one plaintiff must be similarly situated to the proposed comparator. Here, Plaintiffs did not meet this standard because instead of claiming they stood the same as others, they touted their differences.   The court did not review the lower court’s denial of state-action immunity. View "JEFFREY SULITZER V. JOSEPH TIPPINS" on Justia Law

The jury returned a verdict against Swisher International, Inc., on Sherman Act and breach of contract claims brought by Trendsettah USA, Inc.Reversing in part, the court held that the district court abused its discretion in granting Swisher’s Rule 60(d) motion based on fraud on the court. The court held that fraud on the court must be established by clear and convincing evidence. The relevant inquiry is whether the fraudulent conduct harmed the integrity of the judicial process rather than whether it prejudiced the opposing party. A party must show willful deception, and mere nondisclosure of evidence is typically not enough to constitute fraud on the court. The court concluded that Swisher presented no clear and convincing evidence that either Trendsettah or its attorneys were responsible for an intentional, material misrepresentation directly aimed at the district court. The court reversed the district court’s dismissal of Trendsettah’s breach of contract claims and remanded with instructions to reinstate the jury’s verdict on those claims.The court held that the district court did not abuse its discretion in granting Swisher’s motion for relief from judgment premised on newly discovered evidence and fraud under Rule 60(b)(2) and (b)(3), concerning Trendsettah’s antitrust claims. The court held that the Rule 60(b) motion was timely under Rule 60(c)(1)’s one-year limitation period, which restarted because the prior appellate decision substantially altered the district court’s judgment. The court concluded that Swisher met the standard for relief from judgment because Trendsettah’s tax evasion was relevant to antitrust liability and damages. View "TRENDSETTAH USA, INC. V. SWISHER INTERNATIONAL, INC." on Justia Law

The state sued several oil and gas firms alleging their participation in a multiyear conspiracy to manipulate the California gasoline market to the detriment of California consumers. The complaint alleged violations of the Cartwright Act, Business and Professions Code section 16720, and the Unfair Competition Law, section 17200.Defendant SK Trading, a South Korean corporation, sought a writ of mandate to compel the trial court to reverse its order denying its motion to quash service of the summons for lack of personal jurisdiction. SK argued that its limited contacts with California were insufficient to support the court’s exercise of specific personal jurisdiction. The court of appeal denied the petition. SK Trading’s contacts with California supported the court’s exercise of specific personal jurisdiction; it purposefully engaged in activities that should have led it to reasonably anticipate being required to defend those activities in California legal proceedings. SK Trading has not established that the assumption of jurisdiction over it is unfair or unreasonable. There was evidence that SK Trading controlled and facilitated key aspects of the alleged conspiracy. The operative facts of the controversy are related to that contact with this state. View "SK Trading International Co. Ltd. v. Superior Court" on Justia Law

Johnson & Johnson, Ethicon, Inc., and Ethicon US, LLC (collectively, Ethicon) appealed after a trial court levied nearly $344 million in civil penalties against Ethicon for willfully circulating misleading medical device instructions and marketing communications that misstated, minimized, and/or omitted the health risks of Ethicon’s surgically-implantable transvaginal pelvic mesh products. The court found Ethicon committed 153,351 violations of the Unfair Competition Law (UCL), and 121,844 violations of the False Advertising Law (FAL). The court imposed a $1,250 civil penalty for each violation. The Court of Appeal concluded the trial court erred in just one respect: in addition to penalizing Ethicon for its medical device instructions and printed marketing communications, the court penalized Ethicon for its oral marketing communications, specifically, for deceptive statements Ethicon purportedly made during one-on-one conversations with doctors, at Ethicon-sponsored lunch events, and at health fair events. However, there was no evidence of what Ethicon’s employees and agents actually said in any of these oral marketing communications. Therefore, the Court of Appeal concluded substantial evidence did not support the trial court’s factual finding that Ethicon’s oral marketing communications were likely to deceive doctors. Judgment was amended to strike the nearly $42 million in civil penalties that were imposed for these communications. View "California v. Johnson & Johnson" on Justia Law

The en banc court filed an opinion affirming the district court’s order certifying three subclasses of direct tuna purchasers (“DPP”) who alleged that the suppliers violated federal and state antitrust laws. The circuit court agreed with the district court and held that the purchasers’ statistical regression model was capable of showing that a price-fixing conspiracy caused class-wide antitrust impact.Plaintiffs must prove by a preponderance of the evidence the facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied. The court held that in making the determinations necessary to find that the prerequisites of Rule 23(b)(3) are satisfied, the district court may weigh conflicting expert testimony and resolve expert disputes. Further, the court found when individualized questions relate to the injury status of class members, Rule 23(b)(3) requires that the court determine whether individualized inquiries about such matters would predominate. The court held that the district court did not abuse its discretion in certifying the class. Further, it held that the court did not err in determining that the evidence presented by the DPPs proved: (1) antitrust impact was capable of being established class-wide through common proof, and (2) that this common question predominated over individual questions. Finally, the court held that the district court did not abuse its discretion in determining that the evidence presented by the “CFP” class of indirect purchasers of bulk-sized tuna products and the “EPP” class of individual end purchasers was capable of proving the element of antitrust impact. View "OLEAN WHOLESALE GROCERY CO-OP V. BUMBLE BEE FOODS LLC" on Justia Law

Visa and Pulse both operate debit networks; Pulse has a PIN network; Visa has a signature network (“Visa Debit”) and a PIN network (“Interlink”). In response to the Durbin Amendment and to avoid anti-competitiveness, Visa changed certain policies. Pulse then sued visa, alleging federal and state antitrust statute violations.On appeal, Pulse argues the district court erred in granting summary judgment based on Pulse’s lack of antitrust standing. Pulse contends it has antitrust standing to contest Visa’s PAVD program. The court reasoned that loss from competition itself— loss in customers’ choosing the competitor’s goods and services over the plaintiff’s—does not constitute antitrust injury, even if the defendant is violating antitrust laws to offer customers that choice.Moreover, antitrust standing requires a “proper plaintiff." The court held that Pulse is a proper plaintiff to challenge FANF. Finally, Pulse’s overarching contention is that the district judge had prejudged the case against Pulse. The court found that in light of all the evidence and challenges the judge may have evaluating the claims based on what was already presented, reassignment was necessary. The court reversed the summary judgment in part, remanded the case for further proceedings, and directed the Southern District of Texas to assign the case to a different district judge. View "Pulse Network v. Visa" on Justia Law

Under "loyalty contracts," Physician Buying Groups (PBGs) members are entitled to discounts if they buy a large enough percentage of their vaccines from Merck. The loyalty contracts include an arbitration provision. Membership contracts between PBGs and medical practices give medical practices discounts on Merck vaccines for enrolling in PBGs. PBGs contract with both Merck and medical practices and are middlemen but PBGs never possess the vaccines. Medical practices buy their vaccines directly from Merck, receiving discounts for belonging to a PBG. The Pediatricians, members of PBGs that contracted with Merck, never signed contracts containing an arbitration clause.The Pediatricians filed federal suits alleging Merck’s vaccine bundling program was anticompetitive. Merck moved to compel arbitration. On remand, following discovery, the district court again denied Merck’s motion and granted the Pediatricians summary judgment, reasoning that the Pediatricians were not bound under an agency theory. The Third Circuit reversed. The PBG membership contract made the PBG a “non-exclusive agent to arrange for the purchase of goods and services,” and the PBG acted on this authority by executing the loyalty contract with Merck that included the arbitration clause. The Pediatricians simultaneously demonstrated intent to create an agency relationship and exercised control over the scope of the PBG’s agency by contract. View "In re: Rotavirus Vaccines Antitrust Litigation v." on Justia Law

Plaintiffs filed a putative class action alleging that Haitian government officials and multinational corporations conspired to fix the prices of remittances and telephone calls from the United States to Haiti. Plaintiffs allege a price-fixing claim under the Sherman Act and related state law claims, alleging that defendants agreed to produce official instruments (a Presidential Order and two Circulars of the Bank of the Republic of Haiti) to disguise their agreement as a tax for domestic education programs.The Second Circuit held that the act of state doctrine does not bar adjudication of a claim merely because that claim turns on the "propriety" of the official acts of a foreign sovereign. Instead, the doctrine forecloses a claim only if it would require a court to declare that an official act of a foreign sovereign is invalid, i.e., to deny the act legal effect. In this case, even assuming the Presidential Order and Circulars have their full purported legal effect under Haitian law, the court concluded that plaintiffs' antitrust claim under U.S. federal law remains cognizable. Accordingly, the court reversed the district court's dismissal of the antitrust claim under the act of state doctrine and vacated the dismissal of the fifteen state law claims for reanalysis under the proper standard. The court also vacated the dismissal on the alternative grounds of forum non conveniens because the district court did not give due deference to U.S.-resident plaintiffs' choice of forum. The court remanded for further proceedings. View "Celestin v. Caribbean Air Mail, Inc." on Justia Law