Justia Antitrust & Trade Regulation Opinion SummariesArticles Posted in US Court of Appeals for the Ninth Circuit
THE PLS.COM, LLC V. NAR
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
JEFFREY SULITZER V. JOSEPH TIPPINS
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
TRENDSETTAH USA, INC. V. SWISHER INTERNATIONAL, INC.
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
OLEAN WHOLESALE GROCERY CO-OP V. BUMBLE BEE FOODS LLC
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
Sulitzer v. Tippins
The SmileDirect parties developed an online service model for patients to access certain orthodontic services; they allege the defendants (members and employees of the California Dental Board) conspired to harass them with unfounded investigations and an intimidation campaign, to drive them out of the market. The district court dismissed the suit. The Ninth Circuit reversed with respect to certain Sherman Act antitrust claims. The SmileDirect parties sufficiently pled Article III standing; they alleged an injury in fact that was fairly traceable to defendants’ challenged conduct and was judicially redressable. They sufficiently alleged anticompetitive concerted action, or an agreement to restrain trade. The court rejected an argument that regulatory board members and employees cannot form an anticompetitive conspiracy when acting within their regulatory authority.The court affirmed the dismissal of a claim under the Dormant Commerce Clause, which prohibits states from discriminating against interstate commerce, and of a "disparate treatment" Equal Protection Clause claim. To plead a class-of-one equal protection claim, plaintiffs must allege that they have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. A class-of-one plaintiff must be similarly situated to the proposed comparator in all material respects. Rather than claiming that they stood on the same footing as others, the SmileDirect parties argued their uniqueness. View "Sulitzer v. Tippins" on Justia Law
Indirect Purchaser Plaintiffs v. Samsung Electronics Co., Ltd.
The Ninth Circuit affirmed the district court's dismissal of an action alleging an antitrust conspiracy under Section 1 of the Sherman Act by three of the largest manufacturers of dynamic random access memory (DRAM). Plaintiffs allege that defendants conspired to coordinate their actions when they contemporaneously reduced their DRAM production in 2016, basing their theory on defendants' parallel business conduct and various "plus factor" allegations that they claim further suggest a preceding agreement. The panel concluded that plaintiffs' allegations do not amount to the "something more" required by the panel's precedent to make their claims plausible. In this case, while both parties' explanations for defendants' actions are conceivable, plaintiffs failed to allege additional facts that push their theory over "the line between possibility and plausibility." View "Indirect Purchaser Plaintiffs v. Samsung Electronics Co., Ltd." on Justia Law
Ellis v. Salt River Project Agricultural Improvement and Power District
The district court dismissed a suit alleging that a price plan adopted by Salt River Project Agricultural Improvement and Power District (SRP) unlawfully discriminated against customers with solar-energy systems and was designed to stifle competition in the electricity market.The Ninth Circuit affirmed in part, applying Arizona’s notice-of-claim statute, which provides that persons who have claims against a public entity, such as SRP, must file with the entity a claim containing a specific amount for which the claim can be settled.The district court erred in dismissing plaintiffs’ equal protection claim as barred by Arizona’s two-year statute of limitations. The claim did not accrue when SRP approved the price plan, but rather when plaintiffs received a bill under the new rate structure. The plaintiffs alleged a series of violations, each of which gave rise to a new claim and began a new limitations period.Monopolization and attempted monopolization claims under the Sherman Act were not barred by the filed-rate doctrine, which bars individuals from asserting civil antitrust challenges to an entity’s agency-approved rates. SRP was not entitled to state-action immunity because Arizona had not articulated a policy to displace competition.The Local Government Antitrust Act shielded SRP from federal antitrust damages because SRP is a special functioning governmental unit but the Act does not bar declaratory or injunctive relief. The district court erred in concluding that plaintiffs failed to adequately allege antitrust injury based on the court’s finding that the price plan actually encouraged competition in alternative energy investment. View "Ellis v. Salt River Project Agricultural Improvement and Power District" on Justia Law
Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co. Ltd.
Orion sued, alleging that Sunny violated federal antitrust law and California laws by conspiring with its horizontal competitor Synta to fix prices and allocate the telescope market. A jury awarded Orion $16.8 million.The Ninth Circuit affirmed in part. The district court properly admitted the expert report and testimony of Orion’s telescope manufacturing and damages experts and properly excluded Sunny's rebuttal expert testimony. On the Sherman Act section 1 claims, sufficient evidence established that Sunny conspired with Synta to ensure that Sunny acquired another telescope manufacturer, to protect their market share; conspired with a competitor to fix prices or credit terms; and agreed with Synta either not to compete or to divide customers. The evidence also supported the Sherman Act section 2 verdict on attempted monopolization and conspiracy to monopolize; the verdict did not depend on an improper joint monopoly theory. Orion sufficiently defined the relevant market; sufficient evidence supported findings that Sunny expressed a specific intent to gain monopoly power and was dangerously close to attaining monopoly power.Affirming as to Orion’s Clayton Act section 7 claim, the court upheld the finding of a reasonable likelihood that Sunny’s acquisition of a competitor would substantially reduce competition or create a monopoly. The jury’s finding as to damages was neither grossly excessive unsupported, nor the result of guesswork. The district court did not abuse its discretion in imposing injunctive relief under Clayton Act section 16. Vacating in part, the court held that the district court abused its discretion by excluding a declaration in support of Sunny’s motion to amend the judgment with regard to the valuation of a settlement set-off. View "Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co. Ltd." on Justia Law
City of Oakland v. Oakland Raiders
The City of Oakland sued the NFL and its member teams, alleging that the defendants created artificial scarcity in their product (NFL teams), and used that scarcity to demand supra-competitive prices from host cities. The city alleged that when it could not pay those prices, the defendants punished it by allowing the Raiders to move to Las Vegas.The Ninth Circuit affirmed the dismissal of the case. While the city had Article III standing because it plausibly alleged that, but for the defendants’ conduct, it would have retained the Raiders, the defendants’ conduct did not amount to an unreasonable restraint of trade under section 1 of the Sherman Act. The city failed sufficiently to allege a group boycott, which occurs when multiple producers refuse to sell goods or services to a particular customer, alleging only that a single producer, the Raiders, refused to deal with it. The city also failed sufficiently to allege statutory standing on a theory that the defendants’ conduct constituted an unlawful horizontal price-fixing scheme. A finding of antitrust standing requires balancing the nature of the plaintiff’s alleged injury, the directness of the injury, the speculative measure of the harm, the risk of duplicative recovery, and the complexity in apportioning damages; here, the city was priced out of the market and was a nonpurchaser. Any damages were highly speculative and would be exceedingly difficult to calculate. View "City of Oakland v. Oakland Raiders" on Justia Law
CDK Global LLC v. Brnovich
A 2019 Arizona statute prohibits auto dealer management system (DMS) providers from “tak[ing] any action by contract, technical means or otherwise to prohibit or limit a dealer’s ability to protect, store, copy, share or use” data the dealer has stored in its DMS. DMS providers may not impose charges “beyond any direct costs incurred” for database access. DMS providers may not prohibit the third parties contracted by the dealers “from integrating into the dealer’s data system,” nor may they otherwise “plac[e] an unreasonable restriction on integration.” DMS providers must “[a]dopt and make available a standardized framework for the exchange, integration, and sharing of data” with authorized integrators.The Ninth Circuit affirmed the denial of a preliminary injunction against the statute’s enforcement. There is no conflict preemption; the statute and the federal Copyright Act are not irreconcilable. The statute does not conflict with 17 U.S.C. 106(1), which grants the owner of a copyrighted work the exclusive right “to reproduce the copyrighted work in copies.” The plaintiffs forfeited their claim that the statute impaired their contracts with third-party vendors and did not show that the statute impaired their ability to discharge their contractual duty to keep dealer data confidential. The statute was reasonably drawn to serve important public purposes of promoting consumer data privacy and competition and amounted to neither a per se physical taking nor a regulatory taking. View "CDK Global LLC v. Brnovich" on Justia Law