Justia Antitrust & Trade Regulation Opinion Summaries

In 2020, Illumina, a for-profit corporation that manufactures and sells next-generation sequencing (NGS) platforms, which are crucial tools for DNA sequencing, entered into an agreement to acquire Grail, a company it had initially founded and then spun off as a separate entity in 2016. Grail specializes in developing multi-cancer early detection (MCED) tests, which are designed to identify various types of cancer from a single blood sample. Illumina's acquisition of Grail was seen as a significant step toward bringing Grail’s developed MCED test, Galleri, to market.However, the Federal Trade Commission (FTC) objected to the acquisition, arguing that it violated Section 7 of the Clayton Act, which prohibits mergers and acquisitions that may substantially lessen competition. The FTC contended that because all MCED tests, including those still in development, relied on Illumina’s NGS platforms, the merger would potentially give Illumina the ability and incentive to foreclose Grail’s rivals from the MCED test market.Illumina responded by creating a standardized supply contract, known as the "Open Offer," which guaranteed that it would provide its NGS platforms to all for-profit U.S. oncology customers at the same price and with the same access to services and products as Grail. Despite this, the FTC ordered the merger to be unwound.On appeal, the United States Court of Appeals for the Fifth Circuit found that the FTC had applied an erroneous legal standard in evaluating the impact of the Open Offer. The court ruled that the FTC should have considered the Open Offer at the liability stage of its analysis, rather than as a remedy following a finding of liability. Furthermore, the court determined that to rebut the FTC's prima facie case, Illumina was not required to show that the Open Offer would completely negate the anticompetitive effects of the merger, but rather that it would mitigate these effects to a degree that the merger was no longer likely to substantially lessen competition.The court concluded that substantial evidence supported the FTC’s conclusions regarding the likely substantial lessening of competition and the lack of cognizable efficiencies to rebut the anticompetitive effects of the merger. However, given its finding that the FTC had applied an incorrect standard in evaluating the Open Offer, the court vacated the FTC’s order and remanded the case for further consideration of the Open Offer's impact under the proper standard. View "Illumina v. FTC" on Justia Law

Google agreed with competitors, such as Apple, not to initiate contact to recruit each others' employees. In 2010, the Department of Justice filed a civil antitrust action, alleging that the agreements illegally diminished competition for tech employees, denying them job opportunities and suppressing wages. On the same day, the companies entered into a stipulated judgment, admitting no liability but agreeing to an injunction prohibiting the "no cold call" arrangements. Google posted a statement online announcing the settlement and denying any wrongdoing, with a link to a Department of Justice press release, describing the settlement terms. There was widespread media coverage. In 2011, class action lawsuits were filed against the companies by employees who alleged that the cold calling restrictions had caused them wage losses. A consolidated action sought over $3 billion in damages on behalf of more than 100,000 employees. A derivative suit, filed by shareholders in 2014, claimed that the company suffered financial losses resulting from the antitrust and class action suits and that the agreements harmed the company’s reputation and stifled innovation. Based on a three-year statute of limitations, the trial court dismissed. The court of appeal affirmed, finding the suit untimely because plaintiffs should have been aware of the facts giving rise to their claims by at least the time of the Department of Justice antitrust action in 2010. View "Police Retirement System of St. Louis v. Page" on Justia Law

After defendant Price-Rite, a fuel delivery business, failed to fulfill its prepaid delivery contracts, the state filed a five-count complaint charging Price-Rite with four violations of the Maine Unfair Trade Practices Act (UTPA). Following a jury-waived trial, Price-Rite moved for judgment as a matter of law, arguing for the first time that judgment should be granted to it because the state had not complied with the ten-day notice requirement of Me. Rev. Stat. 5, 209. The court denied the motion, finding that the failure to provide notice was inconsequential. The court then held that Price-Rite had violated the UTPA and imposed a civil penalty on Price-Rite's owner and CEO for the UTPA violations. On appeal, the Supreme Court affirmed, holding (1) the trial court did not err in denying Price-Rite's motion for judgment as a matter of law, and (2) the trial court's finding that the owner and CEO intentionally violated the UTPA was not clearly erroneous.View "State v. Price-Rite Fuel, Inc. " on Justia Law

When Sears, Roebuck & Co. merged with Kmart in 2005, the company formed as the parent (Sears) inherited directors from both. Crowley also serves on the boards of AutoNation and AutoZone; Reese is also on the board of Jones Apparel. In a derivative action, Sears shareholders claimed that the consolidated business competes with those other firms and that the Clayton Act, 15 U.S.C. 19 (section 8), forbids the interlocking directorships. Delaware usually allows investors to sue derivatively only if, after a demand for action, the board cannot make a disinterested decision. The investors filed suit without first making a demand. The district court refused to dismiss, accepting an assertion that a demand would have been futile and agreeing that section 8 can be enforced through derivative litigation, even though cooperation with a competitor should benefit the investors. The Seventh Circuit reversed, stating that the suit "serves no goal other than to move money from the corporate treasury to the attorneys' coffers," while depriving Sears of directors, freely elected and of benefit to the company. Usually serving on multiple boards demonstrates breadth of experience, which promotes competent and profitable management. The Antitrust Division and the FTC do not see a problem. View "Frank v. Robert F. Booth Trust" on Justia Law

The City of New York sued defendants under federal and New York State antitrust laws, seeking to prevent the companies from merging. The city appealed from a judgment of the district court granting summary judgment to defendants and dismissing the city's complaint without leave to amend. The court agreed with the district court that the alleged relevant market definition, as the "low-cost municipal health benefits market[,]" was legally deficient and concluded that the district court's denial of leave to amend was not an abuse of discretion. Accordingly, the court affirmed the judgement of the district court. View "City of New York v. Group Health Inc., et al." on Justia Law

FICO brought suit against three credit bureaus: Experian, Equifax, and Trans Union, as well as against VantageScore, the credit bureaus' joint venture. The suit alleged antitrust, trademark infringement, false-advertising, and other claims. FICO, Experian, and VantageScore appealed from the district court's judgment. The court held that FICO failed to demonstrate that it had suffered any antitrust injury that would entitle it to seek damages under section 4 of the Clayton Act, 15 U.S.C. 12-27, and FICO failed to demonstrate the threat of an immediate injury that might support injunctive relief under section 16. The court also held that there was no genuine issue of material fact that consumers in this market immediately understood "300-850" to describe the qualities and characteristics of FICO's credit score and therefore, the district court did not err in finding the mark to be merely descriptive. The court further held that there was sufficient evidence for a reasonable jury to determine that the U.S. Patent and Trademark Office (PTO) relied on FICO's false representation in deciding whether to issue the "300-850" trademark registration. The court agreed with the district court that VantageScore was not a licensee and therefore was not estopped from challenging the mark under either theory of agency or equity. The court finally held that FICO's false advertising claims were properly dismissed and the district court did not abuse its discretion in denying the motion for attorneys' fees. View "Fair Isaac Corp., et al. v. Experian Information Solutions, et al." on Justia Law

This case arose when plaintiff alleged that Citigroup, along with various rating agencies, airlines, and municipalities, conspired to block the use of her finance structure to issue Airline Special Facility bonds. Plaintiff subsequently appealed from a judgment of the district court dismissing her complaint and from the district court's order denying her postjudgment motion for reargument and reconsideration of the dismissal and for leave to replead. On appeal, plaintiff argued that the district court erred by, inter alia, dismissing the complaint without granting leave to replead, denying the postjudgment motion, and exercising supplemental jurisdiction to deny the remaining state law claims. The court held that the district court, in denying the postjudgment motions, applied a standard that overemphasized considerations of finality at the expense of the liberal amendment policy embodied in the Federal Rules of Civil Procedure. Accordingly, the court vacated the order denying the postjudgment motion and so much of the judgment as retained supplemental jurisdiction and dismissed plaintiff's state law claims. The court remanded for further proceedings. View "Williams v. CitiGroup, Inc." on Justia Law