Justia Antitrust & Trade Regulation Opinion Summaries

In March 2015, the Boards of Penn State Hershey Medical Center and PinnacleHealth formally approved a plan to merge. They had announced the proposal a year earlier; the Commonwealth of Pennsylvania and the Federal Trade Commission (FTC) were already investigating the impact of the proposed merger. This joint probe resulted in the FTC filing an administrative complaint alleging that the merger violated Section 7 of the Clayton Act, 15 U.S.C. 18. The FTC scheduled an administrative hearing for May 2016. The Commonwealth and the FTC jointly sued Hershey and Pinnacle under Section 16 of the Clayton Act, and Section 13(b) of the FTC Act, 15 U.S.C. 53(b) seeking a preliminary injunction. In September 2016, the Third CIrcuit reversed the district court and directed it to preliminarily enjoin the merger “pending the outcome of the FTC’s administrative adjudication.” Hershey and Pinnacle terminated their Agreement. The Commonwealth then moved for attorneys’ fees and costs, asserting that it “substantially prevailed” under Section 16 of the Clayton Act. The district court denied the motion, finding the Commonwealth had not “substantially prevailed” under Section 16. The Third Circuit affirmed, reasoning that it had ordered the injunction based on Section 13(b) of the FTC Act, not Section 16 of the Clayton Act. View "Federal Trade Commission v. Penn State Hershey Medical Center" on Justia Law

The FTC filed suit alleging that defendants' debt collection practices violated several provisions of the Federal Trade Commission Act (FTCA) and the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit affirmed the district court's grant of summary judgment for the FTC. Because Defendant Moses submitted no brief prior to the deadline submission set by the court, the court dismissed the appeal under Local Rule 31.2(d). The court also held that the disgorgement assessed jointly and severally against all defendants, including Briandi and Moses, was in an appropriate amount because it was a reasonable approximation of the total amounts received by the defendant companies from consumers as a result of their unlawful acts. View "Federal Trade Commission v. Federal Check Processing, Inc." on Justia Law

The Supreme Court affirmed a district court order denying Appellant’s special motion to dismiss, holding that the district court properly denied Appellant’s special motion to dismiss filed pursuant to Nevada’s anti-SLAPP statutes.Appellant was sued under Nevada’s Deceptive Trade Practice and RICO statutes. In denying the special motion to dismiss, the district court found that Appellant failed to demonstrate that his conduct was “a good faith communication that was either truthful or made without knowledge of its falsehood,” one of the statutory requirements for anti-SLAPP protection. The Supreme Court affirmed, holding (1) the appropriate standard of review for a district court’s denial or grant of an anti-SLAPP motion to dismiss is de novo; and (2) the district court did not err in denying Appellant’s special motion to dismiss because Appellant failed to demonstrate that the challenged claims arose from activity protected by Nev. Rev. Stat. 41.660. View "Coker v. Sassone" on Justia Law

Plaintiff-Appellant DTC Energy Group, Inc., sued two of its former employees, Adam Hirschfeld and Joseph Galban, as well as one of its industry competitors, Ally Consulting, LLC, for using DTC’s trade secrets to divert business from DTC to Ally. DTC moved for a preliminary injunction based on its claims for breach of contract, breach of the duty of loyalty, misappropriation of trade secrets, and unfair competition. The district court denied the motion, finding DTC had shown a probability of irreparable harm from Hirschfeld’s ongoing solicitation of DTC clients, but that DTC could not show the ongoing solicitation violated Hirschfeld’s employment agreement. After review, the Tenth Circuit determined the district court did not abuse its discretion when denying DTC's motion for a preliminary injunction, and affirmed. View "DTC Energy Group v. Hirschfeld" on Justia Law

Innovation sold 5-Hour Energy. In 2004, it contracted with CN to manufacture and package 5-Hour. Jones, CN's President and CEO, had previously manufactured an energy shot. When the business relationship ended, CN had extra ingredients and packaging, which Jones used to continue manufacturing 5-Hour, allegedly as mitigation of damages. The companies sued one another, asserting breach of contract, stolen trade secrets or intellectual property, and torts, then entered into the Settlement, which contains an admission that CN and Jones “wrongfully manufactured” 5-Hour products and forbids CN from manufacturing any new “Energy Liquid” that “contain[s] anything in the Choline Family.” CN received $1.85 million. CN was sold to a new corporation, NSL. Under the Purchase Agreement, NSL acquired CN's assets but is not “responsible for any liabilities ... obligations, or encumbrances” of CN except for bank debt. The Agreement includes one reference to the Settlement. NSL, with Jones representing himself as its President, took on CN’s orders and customers, selling energy shots containing substances listed in the Choline Family definition. Innovation sued. Innovation was awarded nominal damages for breach of contract. The Sixth Circuit affirmed the rejection of defendants’ antitrust counterclaim, that NSL is bound by the Settlement, and that reasonable royalty and disgorgement of profits are not appropriate measures of damages. Jones is not personally bound by the Agreement. Upon remand, Innovation may introduce testimony that uses market share to quantify its lost profits. The rule of reason provides the proper standard for evaluating the restrictive covenants; Defendants have the burden of showing an unreasonable restraint on trade. View "Innovation Ventures, LLC v. Nutrition Science Laboratories, LLC" on Justia Law

The Eighth Circuit affirmed the district court's dismissal of Irmat's complaint against Express Scripts, alleging various contract claims, a promissory estoppel claim, and violations of federal antitrust laws and state Any Willing Provider laws. The court held that the inclusion of Express Scripts's unilateral right to terminate the agreement between the parties upon thirty days written notice was, by itself, insufficient to support a claim of unconscionability; the agreement was not unconscionable because it was a non-negotiable form contract (i.e., a contract of adhesion); Express Scripts did not violate its duty of good faith and fair dealing when it terminated Irmat from its network; and the e-mail Express Scripts sent to Irmat in August 2015 did not constitute a novation where it lacked essential contractual provisions.The court also held that Irmat failed to plausibly plead promissory estoppel. Finally, the court rejected Irmat's claim that Express Scripts violated Sections 1 and 2 of the Sherman Act, and that Express Scripts violated the Any Willing Provider laws. Irmat was not entitled to leave to amend its complaint. View "Park Irmat Drug Corp. v. Express Scripts Holding Co." on Justia Law

Direct purchasers of containerboard charged manufacturers with conspiring to increase prices and reduce output from 2004-2010. The Seventh Circuit affirmed the certification of a nationwide class of buyers. Most of the defendants settled. Georgia‐Pacific and WestRock did not settle but persuaded the court that there was not enough evidence of a conspiracy to proceed to trial. The Seventh Circuit affirmed the dismissal; the Purchasers’ evidence does not tend to exclude the possibility that the companies engaged only in tacit collusion. Without something that can be called an agreement, oligopolies elude scrutiny under section 1 of the Sherman Act, 15 U.S.C. 1, while no individual firm has enough market power to be subject to section 2. Tacit collusion is easy in those markets; firms have little incentive to compete, “preferring to share the profits [rather] than to fight with each other.” Because competing inferences can be drawn from the containerboard market structure, the economic evidence did not exclude the possibility of independent action. No evidence supported the Purchasers’ accusation that the defendants lied in claiming to have independently explored a possible price increase. The supposedly coordinated reductions of output through mill closures and slowdowns do not necessarily suggest conspiracy. Conduct that is easily reversed may be consistent with self‐interested decision‐making. There is no evidence that the executives discussed illicit price‐fixing or output restriction deals during their frequent calls and meetings. View "Kleen Products LLC v. Georgia-Pacific LLC" on Justia Law

The Supreme Court vacated the judgment of the intermediate court of appeals (ICA) affirming the circuit court’s order and granting summary judgment for Defendant in this case arising out of the uncompleted sale of one business to another, holding that the plaintiff raised genuine issues of material fact as to its unfair method of competition (UMOC) claim.Specifically, the Court held (1) to raise an issue of material fact as to the nature of the competition requirement of a UMOC claim following the close of discovery, a plaintiff must demonstrate that the defendant’s alleged anticompetitive conduct could negatively affect competition, but the plaintiff need not prove that the defendant in fact harmed competition; (2) to survive summary judgment, a plaintiff may generally describe the relevant market without resort to expert testimony and need not be a competitor of or in competition with the defendant; and (3) the plaintiff in this case raised genuine issues of material fact as to the first and second elements of a UMOC claim, and the circuit court erred erred in holding that the plaintiff was estopped from asserting the UMOC claim based on waiver, judicial estoppel and collateral estoppel. View "Field v. National Collegiate Athletic Ass’n" on Justia Law

The First Circuit reversed the district court’s certification of a class of all purchasers of Asacol, including purchasers who had not suffered any injury attributable to Defendants’ allegedly anticompetitive behavior, holding that the district court’s approach to certifying a class was at odds with both Supreme Court precedent and the law of this circuit.Drug manufacturer Warner Chilcott Limited’s coordinated withdrawal and entry of two drugs, Asacol and the similar drug called Delzicol, precluded generic manufacturers from introducing a generic version of Asacol, which would have provided a lower-cost alternative to Warner’s drugs, Delzicol and Asacol HD. Plaintiffs filed a class action alleging violations of the consumer protection and antitrust laws of twenty-five states and the District of Columbia. The district court certified a class of all Asacol purchasers who subsequently purchased Delzicol or Asacol HD in one of those twenty-six jurisdictions, finding that while ten percent of the class had not suffered any injury, those uninjured class members could be removed in a proceeding conducted by a claims administrator. The First Circuit reversed, holding that where injury-in-fact is a required element of an antitrust action, a class cannot be certified based on an expectation that the defendant will have no opportunity to press at trial genuine challenges to allegations of injury-in-fact. View "Teamsters Union 25 Health Services & Insurance Plan v. Warner Chilcott Limited" on Justia Law

Bayer AG, maker and marketer of One A Day brand vitamins, was sued in California Superior Court for alleged violations of California’s Consumer Legal Remedies Act, Unfair Competition Law and express warranty law. Plaintiff William Brady’s theory was that Bayer’s packaging of its “Vitacraves Adult Multivitamin” line of gummies was misleading. Brady argued that despite the One A Day brand name, these particular vitamins require a daily dosage of two gummies to get the recommended daily values. Thus buyers end up receiving only half the daily vitamin coverage they think they are getting. The initial complaint was filed as a class action in March 2016, followed by an amended complaint in April, followed by a demurrer in May. The trial court, relying on the unpublished Howard v. Bayer Corp., E. D. Ark. July 22, 2011 (2011 U. S. Dist. LEXIS 161583) involving the supposedly misleading packaging of Bayer’s One A Day gummies, sustained Bayer’s demurrer without leave to amend. The Court of Appeal concluded Bayer failed to appreciate the degree to which their trade name One a Day has inspired reliance in consumers, and held an action alleging they violated California’s Consumer Legal Remedies Act, Unfair Competition Law and express warranty law should have survived demurrer. View "Brady v. Bayer Corp." on Justia Law