Justia Antitrust & Trade Regulation Opinion Summaries

A class action antitrust suit on behalf of text messaging customers, claimed conspiracy by providers, in violation of the Sherman Act, 15 U.S.C. 1, to increase price per use. On remand, after three years of discovery, the district judge granted the defendants summary judgment. The Seventh Circuit affirmed, acknowledging that it is difficult to prove illegal collusion without witnesses to an agreement. Competing firms can be expected to keep close track of each other’s pricing and other market behavior and often to imitate that behavior rather than try to undermine it. The plaintiffs presented circumstantial evidence consistent with an inference of collusion, but that evidence was equally consistent with independent parallel behavior. Tacit collusion, also known as conscious parallelism, does not violate section 1 of the Sherman Act. Collusion is illegal only when based on agreement. Agreement can be proved by circumstantial evidence, but the plaintiffs failed to find sufficient evidence of express collusion to make a prima facie case. View "Aircraft Check Servs. Co. v. Verizon Wireless" on Justia Law

Plaintiffs are direct purchasers of traditional blood reagents, used to test blood compatibility between donors and recipients, from Immucor and OrthoClinical (defendants). By 1999, the entire domestic supply of that product was under defendants’ control. In 2000, defendants’ executives attended a trade meeting at which plaintiffs assert the conspiracy began. Defendants soon began rapidly increasing prices. By 2009, many prices had risen more than 2000%. Following a Department of Justice probe, private suits were filed, transferred by the Judicial Panel on Multidistrict Litigation, and consolidated. Plaintiffs sought damages under the Clayton Act, 15 U.S.C. 15, for alleged horizontal price fixing in violation of the Sherman Act, 15 U.S.C. 1. After preliminary approval of plaintiffs’ settlement with Immucor, the court certified plaintiffs’ class of “[a]ll individuals and entities who purchased traditional blood reagents in the United States directly from Defendants ... at any time from January 1, 2000 through the present.” Plaintiffs relied in part on expert testimony to produce their antitrust impact analyses and damages models, which Ortho challenged. The Supreme Court subsequently decided Comcast v. Behrend, which reversed Behrend v. Comcast, on which the district court relied in granting class certification. The Third Circuit vacated, reasoning that the court had no opportunity to consider the implications of Comcast; a court must resolve any Daubert challenges to expert testimony offered to demonstrate conformity with Rule 23 View "In re: Blood Reagents Antitrust Litig." on Justia Law

Plaintiff, a Montana corporation, sells workers’ compensation insurance to employers without the use of insurance agencies. Defendant Montana State Fund sells workers’ compensation insurance through in-house and out-of-house agents. The remaining defendants also sell workers’ compensation insurance, including State Fund policies. In 2011, Plaintiff brought this of action against Defendants, alleging violations of the Unfair Trade Practices Act (UTPA) and intentional interference with prospective economic advantage. The district court (1) dismissed Plaintiff’s UTPA claim on the grounds that the UTPA does not create a private right of action by one insurance company against another; and (2) granted Defendants’ motions for summary judgment with respect to interference with prospective economic advantage. The Supreme Court affirmed, holding that Plaintiff’s inability to establish damages was fatal to its intentional interference claim and would be fatal as well to any UTPA-related claim. View "Victory Ins. Co. v. Mont. State Fund" on Justia Law

Plaintiff filed a false advertising lawsuit against Johnson & Johnson and McNeil Nutritionals, LLC (collectively, McNeil) challenging several of McNeil’s assertions about its product, Benecol, a vegetable oil-based spread. Specifically, Plaintiff alleged that McNeil’s claims about its product were not authorized under the FDA’s regulations and were false. Plaintiff asserted claims for relief on behalf of a putative class of Benecol purchasers under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The district court granted McNeil’s motion to dismiss, concluding that Plaintiff lacked standing because he failed to plead reasonable reliance on any misrepresentations and that Plaintiff’s claims for relief were preempted under federal law. The Ninth Circuit reversed, holding (1) Plaintiff had standing to challenge McNeil’s statements; (2) Plaintiff’s claims for relief were not preempted to the extent they were predicated on McNeil’s statements about trans fat, and a certain FDA letter was not entitled to preemptive effect; and (3) Plaintiff’s action was not barred by the primary jurisdiction doctrine. Remanded. View "Reid v. Johnson & Johnson" on Justia Law

In 2011 and 2012, the government brought enforcement actions against more than 80 facilities alleged to be selling and distributing marijuana for medicinal purposes in violation of the Los Angeles Municipal Code for public nuisance, the Narcotics Abatement Law, Health & Safety Code section 11570, and the state unfair competition law, Business & Professions Code section 17200. The complaints sought permanent injunctions, abatement of the nuisances and civil penalties. The trial court denied the government’s omnibus motion for summary judgment, reasoning that claims for penalties made under each of the statutory plans are elements of the causes of action alleged. The court of appeal vacated, holding that the penalties being sought are among the remedies available rather than elements of the causes of action alleged in the several complaints. View "People v. Cahuenga's The Spot" on Justia Law

Wellmark, Inc., an Iowa-based health insurer that belongs to the national Blue Cross and Blue Shield (BCBS) network, contracted with health care providers in Iowa to provide services at certain reimbursement rates. Wellmark agreed to make those rates available both to self-insured Iowa plans that it administers and to out-of-state BCBS affiliates when those entities provide coverage for services provided in Iowa. Plaintiffs, a number of Iowa chiropractors, sued Wellmark, claiming that Wellmark had abused monopoly power in violation of the Iowa Competition Law. The Supreme Court affirmed the district court’s dismissal of some of the chiropractors’ antitrust claims and remanded on Plaintiffs’ remaining claims. On remand, Plaintiffs stipulated that their remaining antitrust claims regarding the agreements between Wellmark and both the self-insuring employers and the out-of-state BCBS affiliates were being asserted on a per se theory. The district court rejected Plaintiffs’ per se theories and entered summary judgment for Wellmark. The Supreme Court affirmed, holding that Wellmark’s arrangements with the self-insured employers and out-of-state BCBS licensees did not amount to per se violations of Iowa antitrust law. View "Mueller v. Wellmark, Inc." on Justia Law

A class of Netflix DVD subscribers filed a consolidated amended class action against Netflix and Walmart, claiming that a promotion agreement whereby Walmart transferred its online DVD-rental subscribers to Netflix and Netflix agreed to promote Walmart’s DVD sales business was anti-competitive. The district court approved of a settlement between Walmart and the class of Netflix subscribers whereby Walmart agreed to pay a total amount of $27,250,000. The Ninth Circuit affirmed, holding that the district court did not err in (1) approving the settlement as fair, reasonable, and adequate; (2) certifying the settlement class; and (3) awarding attorneys’ fees of twenty-five percent of the overall settlement fund. View "Frank v. Netflix, Inc." on Justia Law

Plaintiffs, individuals representing a class of Netflix subscribers, contended that a promotion agreement whereby Walmart transferred its online DVD-rental subscribers to Netflix and Netflix agreed to promote Walmart’s DVD sales business violated the Sherman Act by illegally allocating and monopolizing the online DVD rental market. The district court granted summary judgment for Netflix and awarded Netflix $710,194 in costs. The Ninth Circuit (1) affirmed the district court’s summary judgment, holding that Plaintiffs did not raise a triable issue of fact as to whether they suffered antitrust in-jury-in-fact on a theory that they paid supracompetitive prices for their DVD-rental subscriptions because Netflix would have reduced its subscription price but for its allegedly anticompetitive product; and (2) affirmed in part and reversed in part the award of costs, holding that certain charges for “data upload” and “keywording” were not recoverable as costs for making copies under 28 U.S.C. 1920(4). Remanded for consideration of whether costs were properly awarded for “professional services.” View "Resnick v. Netflix, Inc." on Justia Law

Plaintiffs filed a class action complaint against Philip Morris Companies Inc. and Philip Morris Inc., alleging that Philip Morris violated the Arkansas Deceptive Trade Practices Act (ADTPA) by falsely advertising that its Marlboro Lights cigarettes were safer and contained less tar and nicotine than other cigarettes. The circuit court certified Plaintiffs’ class action, concluding that common issues among all class members predominated over any individual issues and that a class action was a superior method of resolving the claim. The Supreme Court affirmed the circuit court’s order certifying the class, holding that the circuit court did not abuse its discretion in certifying the class, as common issues predominated, a class action was a superior method of adjudication, and the class was ascertainable. View "Philip Morris Cos., Inc. v. Miner" on Justia Law

Appellant Ortho-McNeil-Janssen Pharmaceuticals (Janssen) manufactured the antipsychotic drug Risperdal. The Attorney General of South Carolina believed that Janssen had violated the South Carolina Unfair Trade Practices Act (SCUTPA) by engaging in unfair methods of competition by willfully failing to disclose known risks and side effects associated with Risperdal. In 2007, the State and Janssen entered into a tolling agreement concerning the statute of limitations. The State filed its Complaint on April 23, 2007: the first claim arose from the content of the written material furnished by Janssen since 1994 with each Risperdal prescription (the "labeling claim"); the second claim centered on alleged false information contained in a November 2003 Janssen-generated letter sent to the South Carolina community of prescribing physicians (the "Dear Doctor Letter"). Because both claims arose more than three years prior to January 24, 2007, Janssen pled the statute of limitations as a bar to the Complaint. The matter proceeded to trial. A jury rendered a liability verdict against Janssen on both claims. The trial court rejected Janssen's defenses, including the statute of limitations, finding that both claims were timely. Janssen appealed. After review, the Supreme Court affirmed the liability judgment on the labeling claim but modify the judgment to limit the imposition of civil penalties to a period of three years from the date of the tolling agreement, which was coextensive with the three-year statute of limitations, subject to an additional three months by virtue of the time period between the January 24, 2007, tolling agreement and the filing of the Complaint on April 23, 2007. The Court affirmed the liability judgment on the doctor letter claim, but remitted the amount of penalties associated with that claim. View "South Carolina v. Ortho-McNeil-Janssen Pharmaceuticals" on Justia Law