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Category: Collaboration & Joint Conduct

The Spider Network: A Book Review

A new book was recently released about the events surrounding the alleged LIBOR fixing conspiracy.  Authored by Wall Street Journal reporter David Enrich, The Spider Network: The Wild Story of a Math Genius, a Gang of Backstabbing Bankers, and One of the Greatest Scams in Financial History tackles the issues from a unique perspective, focusing on one of the main bankers involved, Tom Hayes.  Hayes, formerly a trader at UBS and Citigroup, was prosecuted by the U.K. Serious Fraud Office in 2015.  He was convicted of conspiracy to defraud for his role in fixing LIBOR and is serving an 11-year prison sentence.

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The Government Seeks to Intervene in its Third Generic Drug Price-fixing Lawsuit

Since we last reported on the state and federal government’s generic drug pricing investigations and litigations (click here to read more), the U.S. Department of Justice (“DOJ”) has obtained its first guilty pleas.  On January 9, 2017, Heritage Pharmaceutical Inc.’s former CEO and its former president (the defendants are brothers-in-law) pleaded guilty to manipulating the prices of and divvying up customers for an antibiotic, doxycycline hyclate, and a diabetes medicine, glyburide.  The defendants are scheduled to be sentenced on September 28, 2017, and they face up to ten years of imprisonment.  The government’s filings in other lawsuits make clear that the defendants’ sentencing was delayed until the defendants complete their cooperation with the government.

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Circuit Split on Certification: How far can evidence of price-fixing carry antitrust plaintiffs?

Manufacturers of containerboard and corrugated products have asked the Supreme Court to weigh in on a Circuit split concerning the impact of negotiated prices on class certification in antitrust cases brought under Section 1 of the Sherman Act.  Petitioners filed for a writ of certiorari on December 30, 2016, arguing that the Seventh Circuit in Kleen Products LLC, et al. v. International Paper Company, et al., Nos. 15-2385, 15-2386 (7th Cir. Aug. 4 2016), erred in two related ways, both of which flow from the fact that prices of the containerboard products at issue in the case tend to be individually negotiated. 

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DOJ and State AG Investigations Into Generic Pricing Lead to Suits Against Manufacturers and Employees

As we have previously reported, (click, here, here, here, and here to read more), generic drug manufacturers have recently come under intense scrutiny from state and federal regulators for their price hikes.  Last week, the Department of Justice and twenty state attorneys general instituted criminal and civil proceedings in connection with alleged generic drug price manipulation.

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DOJ and FTC provide guidance on avoiding antitrust violations in Human Resources practices

The Department of Justice (DOJ) and the Federal Trade Commission (FTC) last week issued antitrust guidelines for human resources (HR) professionals.  The guidelines highlight the most common antitrust violations, based on a review of cases in which federal antitrust agencies have taken enforcement actions against employers.  There are three main takeaways from this guidance.  

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Gold and Silver price fixing suits may be expensive for banks

The Southern District of New York recently denied motions to dismiss filed by several banks that allegedly conspired to manipulate the price of gold and silver.  Only defendant UBS was successful in convincing the court that the allegations against it failed to state a plausible antitrust claim.

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St. Louis Taxi Commission Not Immune From Uber’s Antitrust Suit

As we’ve written, Uber, the popular app-based car service, has been on the antitrust defensive, facing allegations that its algorithm for calculating prices restricts price competition.  In Wallen v. St. Louis Metropolitan Taxicab Commission, No. 15-cv-01432 (E.D. Mo.), however, it’s on offense, joining forces with some of its riders and drivers in a claim that the St. Louis Metropolitan Taxicab Commission’s refusal to allow it and other ridesharing companies to operate in St. Louis is an antitrust violation.  The plaintiffs allege that the Commission, composed of active market participants, is precluding competition by denying ridesharing services the ability to operate.  The complaint also names as defendants the cab companies with which the Commission’s members are affiliated.  The Commission and its members moved to dismiss on the basis that they are immune from antitrust liability, and the cab companies moved to dismiss for failure to state a claim.  On October 7, 2016, the court denied the Commission defendants’ motion to dismiss and granted the cab companies motion to dismiss, with leave to replead.

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Compounding Pharmacy’s Group Boycott Claim Survives Motion to Dismiss

On August 23, 2016, the District Court for the Eastern District of Missouri allowed claims by a compounding pharmacy to proceed, denying a motion to dismiss filed by the defendant pharmacy benefit manager (“PBM”).  In Precision Rx Compounding LLC, et al. v. Express Scripts Holding Co., et al., No. 16-cv-0069 (E.D. Mo.), the plaintiff Precision Rx is a compounding pharmacy and the defendant, Express Scripts, is a  PBM  that contracts with health plan administrators and insurance payors to manage pharmacy benefit plans.  

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Second Circuit Weighs in on Antitrust Injury

Antitrust standing is one of the most beguiling concepts in antitrust law, but it is a hurdle that a plaintiff must negotiate if its claim can proceed.  This week, the Second Circuit provided some clarity to the doctrine when it affirmed a district court decision dismissing the antitrust claims of end users of aluminum for lack of antitrust standing in In re Aluminum Warehousing Antitrust Litigation.

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After Favorable LIBOR Ruling from the Second Circuit, Investors Now Allege Anticompetitive SIBOR Manipulation

On July 5, 2016, investors filed a federal class action [add link to pdf] in the Southern District of New York alleging defendant banks had manipulated the Singapore Interbank Offered Rate (SIBOR) “and/or” Singapore Swap Offer Rate (SOR) market, forcing investors to pay artificial prices for financial derivative transactions based on these benchmarks. This lawsuit follows on the heels of the Second Circuit’s decision in In re: LIBOR-Based Financial Instruments Antitrust Litigation, which allowed the case to proceed.  

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Banks Speak: LIBOR Plaintiffs Are Not Efficient Enforcers Of Antitrust Laws

As our loyal readers know, on May 23, 2016, the Second Circuit issued a decision in the In re: LIBOR-Based Financial Instruments Antitrust Litigation vacating the District Court’s prior decision dismissing one case in this consolidated action.  Our analysis of that decision is available here.  Notably, however, the Second Circuit declined to rule on whether the plaintiffs (the “Plaintiffs”) are “efficient enforcers” of the antitrust laws and remanded that question for the District Court’s consideration.

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Procompetitive Effects of Business Associations in the Balance?: Business Association Membership and the Sufficiency of Sherman Act Allegations

What facts beyond mere membership in a trade association trigger Sherman Act liability?  Next term, the Supreme Court will hear an antitrust case testing the requirements for pleading the conspiracy element of a claim brought under the Sherman Act—namely, whether the allegation that defendants belong to an association is sufficient for a Section 1 claim.  

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Expert Analysis Guides Decision to Certify Class of Automotive Part Purchasers

Certifying a class of direct purchasers of sheet metal parts alleging claims under section 1 of the Sherman Act, Judge Lynn Adelman of the United States District Court for the Eastern District of Wisconsin focused on what it means for common questions to predominate in an antitrust class action.  

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2nd Circuit Speaks: LIBOR Plaintiffs May Pursue Claims

On May 23, 2016, the Second Circuit issued a long-awaited decision in the In re: LIBOR‐Based Financial Instruments Antitrust Litigation, vacating the District Court’s (Buchwald, J.) prior decision dismissing one case in this consolidated action.

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District Court Finds Uber CEO, by Driving for Uber, May be Liable for Driving Up Prices

It is plausible that Uber’s CEO, Travis Kalanick, may have violated antitrust law by fixing prices charged to Uber passengers, a judge in the United States District Court for the Southern District of New York concluded last week in denying Kalanick’s motion to dismiss.  The lawsuit, Meyer v. Kalanick, is a putative class action initiated by Spencer Meyer, a resident of Connecticut, on behalf of people who, like him, have used Uber car services.  The complaint also names a subclass of people who have been charged according to Uber’s “surge pricing” model.

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Publishers close the book on one e-books case; Supreme Court decides whether to reopen another

We will soon know whether the Supreme Court will grant Apple’s cert petition asking the Court to review and reverse its antitrust violation for conspiring with publishers to fix the prices of e-books.  The Court will consider the petition at its next conference on February 19.  As we previously reported here and here, a divided Second Circuit panel affirmed the district court’s findings that the per se rule applied to Apple’s conduct and that Apple violated Section 1 of the Sherman Act.

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MLB Settles, Leaving Unanswered Questions: Do Sports Leagues’ Regional Blackout Agreements Violate Antitrust Laws?

In the wake of Major League Baseball’s settlement of antitrust claims on the eve of trial, the central question from the lawsuit remains:  are sports leagues’ exclusive broadcasting territories for live games an antitrust violation?  Although suits against the MLB and National Hockey League have both settled, analogous antitrust claims are pending against the National Football League, leaving open the possibility that these issues may be finally resolved in the court room.

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Fifth Circuit Considers Independent Conduct in Vertical Agreements to Facilitate Horizontal Conspiracy

On November 25, 2015, the Court of Appeals for the Fifth Circuit affirmed the $156 million antitrust judgment in MM Steel, L.P. v. JSW Steel (USA) Incorporated; Nucor Corporation, upholding a jury verdict that found one defendant steel manufacturer (JSW Steel) liable for participation in an illegal conspiracy to block distributor MM Steel from entering the market.  The Court of Appeals reversed the jury verdict as to defendant Nucor, another steel manufacturer.  In so doing, the Fifth Circuit identified evidence that does—and does not—tend to exclude the possibility of independent conduct for purposes of finding a violation of § 1 of the Sherman Act.  The court also underscored that per se liability (and not the rule of reason) attaches to horizontal conspirators’ use of vertical agreements to shut competitors out of the market.

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FTC Asserts That Its Failure to Object to a “Reverse Payment” Settlement Should Not Be Interpreted as Approval

On November 17, 2015, the FTC submitted an amicus brief to the Third Circuit Court of Appeals in In re Effexor XR Antitrust Litigation, where the district court had dismissed the plaintiffs’ claims of antitrust violations based on an alleged reverse payment under FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013). In its brief, the FTC argues that its failure to object to a pharmaceutical patent settlement should play no role whatsoever in evaluating the legality of alleged reverse payments, and urged the Third Circuit to reverse the district court’s decision to the extent it relied on such considerations.

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Third Circuit Provides Clarity to “Inextricably Intertwined” Basis of Antitrust Injury in Partially Reinstating Claims Against ShopRite

On November 12, 2015, the Third Circuit Court of Appeals issued an opinion partially reversing the dismissal of the plaintiff’s claims in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., finding that plaintiff Hanover Realty had successfully pleaded antitrust standing with regard to certain of its claims. The Third Circuit clarified—and potentially expanded the scope of—its prior interpretations of the Supreme Court’s seminal standing decision in Blue Shield of Va. v. McCready, 457 U.S. 465 (1982), which held that a plaintiff did not necessarily need to be a consumer or a competitor of a defendant to establish antitrust injury, if it could show that its injury was “inextricably intertwined” with the injury to intended victims of an antitrust conspiracy.

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Hong Kong Competition Commission Releases Leniency Guidelines

On September 23, the Hong Kong Competition Commission (HKCC) released a draft of its “Leniency Policy for Undertakings Engaged in Cartel Conduct.”  The draft specifies when the HKCC will refrain from pursuing monetary penalties against an entity in exchange for that entity’s cooperation.  The HKCC was created when Hong Kong’s Legislative Council passed a competition ordinance in 2012.  The Competition Ordinance applies to any agreement that has the object or effect of preventing, restricting, or distorting competition in Hong Kong, even if the parties and concerted activity are outside of Hong Kong.  Over the past three years, the HKCC has slowly released guidelines related to the implementation of the Ordinance.  With the release of the leniency policy, the HKCC is on track to begin enforcing the Competition Ordinance in mid-December 2015.

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Ninth Circuit Disallows Additional Compensation for College Athletes

Yesterday, the Ninth Circuit ruled in the long awaited O’Bannon v. NCAA case, which challenged NCAA rules that bar student-athletes from “being paid for the use of their names, images, and likenesses” (NILs) – part of the so-called “amateurism rules.”  The Court upheld the district court’s decision finding the NCAA amateurism rules to be an unlawful restraint of trade in violation of the Sherman Act and upheld part of the district court’s remedy which permanently enjoined the NCAA from prohibiting its member schools from giving student-athletes scholarships up to the full cost of attendance at their respective schools.  The Ninth Circuit struck down, however, the district court’s second remedy which would have permanently enjoined the NCAA from prohibiting its member schools from giving student-athletes up to $5,000 per year in deferred compensation. 

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Apple Signals It Will Seek Supreme Court Reversal on E-Book Decision

Earlier this month, Apple signaled its intention to petition for writ of certiorari after the Second Circuit upheld Judge Cote’s decision to apply per se liability in analyzing the firm’s conduct with respect to e-books in United States v. Apple Inc.  We have previously reported on the decisions below where both the Second Circuit and the Southern District of New York concluded that per se liability applies because, even though Apple’s contracts with publishers were vertical agreements (and thus would usually require the rule of reason analysis per the Supreme Court’s Leegin decision), Apple’s organization of competing e-book  publishers to raise e-book prices created a horizontal agreement.

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Divided Fourth Circuit Panel Slices Up Twombly in Table Saw Boycott Suit

Last week, a divided three-judge panel of the Fourth Circuit issued a significant decision in a boycott conspiracy case, SD3, LLC v. Black & Decker, No. 14-1746 (4th Cir. Sept. 15, 2015).  The suit, at its heart, turns on the interpretation of the Twombly plausibility standard and the application of the Supreme Court’s precedent on pleading standards to antitrust actions at early stages of litigation.

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Antitrust Inside Counsel Article Series

Our Antitrust practice group recently co-authored a series of articles in Inside Counsel discussing major antitrust issues facing in-house counsel today.  Our articles expand on topics that we have covered in this blog, including the Actavis litigation, the change in the competition landscape across the globe and antitrust reforms in Europe and Asia, antitrust enforcement in e-commerce, the implications of the Supreme Court’s decision in North Carolina State Board of Dental Examiners on antitrust liability for professional boards, and the Department of Justice’s recent guidance on antitrust compliance programs.

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Seventh Circuit Affirms in Favor of Cheese Maker in Milk Price Fixing Case

This past Tuesday, the Seventh Circuit upheld the decision of Judge Robert M. Dow Jr. of the U.S. District Court for the Northern District of Illinois granting cheese manufacturer Schreiber Foods Inc.’s motion for summary judgment in an antitrust class action.  The Seventh Circuit agreed with the District Court that the plaintiffs, led by a cheese distributor and a dairy farmer and milk futures trader, lacked evidence to support their claims that Schreiber conspired with Dairy Farmers of America, a dairy marketing cooperative, to increase the price of raw milk.

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"Airline Collusion" Private Class Actions

Last week, we discussed public reports of an investigation by the DOJ of four major airlines (American, Delta, Southwest, and United) regarding possible collusion. Over the past two months, a number of consumers have filed class action complaints against the airlines, putting forward their own theories regarding collusion.

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Ninth Circuit Clarifies Analysis of Alleged Hub-and-Spoke Conspiracies Under the Sherman Act

Yesterday, the Ninth Circuit issued an opinion affirming the dismissal of plaintiffs’ consolidated complaint in In re Musical Instruments and Equipment Antitrust Litigation. In addressing plaintiffs’ allegations of a hub-and-spoke conspiracy, the Ninth Circuit reiterated that each component of such a conspiracy (both vertical and horizontal) must be evaluated separately. 

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Do Businesses Understand Competition Law?

This spring, the UK Competition and Markets Authority (the “CMA”) published a study on UK businesses’ awareness and understanding of competition law, understanding of anti-competitive behaviors, and penalties for any violations. The study included interviews of more than one thousand senior personnel with responsibility for sales at private sector businesses in the UK. Among other questions, they were asked to answer a series of 10 true/false questions to evaluate their understanding of competition law. 

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DOJ and Michigan Sue Four Hospital Systems for Agreeing Not to Compete With Each Other

Together with the State of Michigan, the United States Department of Justice’s Antitrust Division has filed a civil suit against four Michigan hospital systems for allegedly agreeing to limit marketing in each other’s territories.  Three of the hospital systems—Hillsdale Community Health Center, Community Health Center of Branch County, and ProMedica Health System—have agreed to settle the charges.

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Second Circuit Affirms Ruling Against Apple in E-book Price-Fixing Case

We have previously posted about United States v. Apple, Inc., a blockbuster trial that ended with Judge Denise Cote of the Southern District of New York concluding that Apple had conspired with five publishing companies to raise the price of e-books.  At oral argument before the Second Circuit, the panel hearing Apple’s appeal seemed particularly interested in whether the district court had erred in applying the relatively lenient per se standard rather than the rule of reason, under which the plaintiffs would have had to prove that the anti-competitive injury caused by Apple outweighed any pro-competitive benefits of its conduct.  

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Teva Agrees to Pay $1.2 Billion in FTC’s Pay-For-Delay Suit Against Cephalon

Yesterday, the FTC announced that it reached a settlement in its pay-for-delay lawsuit, FTC v. Cephalon Inc. in the U.S. District Court for the Eastern District of Pennsylvania, with Teva Pharmaceuticals Industries, Ltd., which acquired Cephalon in 2012.  This case is the first FTC case to be resolved since the Supreme Court’s 2013 decision in FTC v. Actavis, in which the Court announced that reverse-payment patent settlements could be subject to antitrust challenges.

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American Express Appeals Anti-Steering Permanent Injunction to Second Circuit

Last Thursday, American Express appealed the District Court for the Eastern District of New York’s February ruling that its anti-steering rules violated Section 1 of the Sherman Act.  The court entered a permanent injunction in April requiring American Express to change its anti-steering rules and allow merchants to steer customers to use other credit cards or other forms of payment.  

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Following Actavis, California Supreme Court Crafts “Structured Rule of Reason” Test for Evaluating Pay-for-Delay Settlements

Last Thursday the Supreme Court of California decided In re Cipro Cases I & II, No. S198616 (Cal. May 7, 2015), holding that reverse payment, or “pay-for-delay,” settlements can be challenged as unreasonable restraints on trade.  In so doing, it followed the U.S. Supreme Court’s 2013 decision in Federal Trade Commission v. Actavis, Inc., 133 S.Ct. 2223 (2013).  

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First E-commerce Price Fixing Prosecution Yields Swift Guilty Plea

In what it is calling the Antitrust Division’s “first criminal prosecution against a conspiracy specifically targeting e-commerce,” the Department of Justice has announced that an individual has agreed to plead guilty to charges that he conspired to fix the prices of wall posters sold online through Amazon Marketplace.  The matter is United States v. Topkins, No. 15 Cr. 201 (N.D. Cal.).

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Court Sacks Photographers’ Antitrust Claims Against the NFL and its Member Teams

Allegations of conspiracy to restrain trade and exclusive dealing may read like textbook antitrust claims, but if the allegations are made by a plaintiff who is not an “efficient enforcer” of the antitrust laws, the complaint is vulnerable to a motion to dismiss.  

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Russia Amends Criminal Code on Antitrust Violations

Russia has amended its criminal code on cartels, signaling a major change in antitrust law enforcement.  On March 8, 2015, President Vladimir Putin signed a Federal Law “introducing changes to Article 178 of the Criminal Code of the Russian Federation.”  

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In re: Aluminum Warehousing: Cats Live for Another Day

On March 26, 2015, U.S. District Judge Katherine Forrest of the Southern District of New York, in a very colorful decision that metaphorically describes the plaintiffs as cats trying to locate a “rat” in the world of aluminum warehousing, denied defendants’ motion to dismiss in In re: Aluminum Warehousing Antitrust Litig.

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Ninth Circuit Hears Oral Argument in O’Bannon v. NCAA

On March 17, 2015, a Ninth Circuit panel consisting of Chief Judge Sidley R. Thomas, Circuit Judge Jay S. Bybee and Senior U.S. District Judge Gordon J. Quist, of the Western District of Michigan heard oral argument in O’Bannon v. NCAA.

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Ninth Circuit Affirms Dismissal of Netflix Antitrust Suit

    Last Friday, the Ninth Circuit affirmed the dismissal of a multidistrict class action brought by Netflix subscribers who claimed the company conspired with Walmart to dominate the online DVD sales and rental markets.  In 2005, Netflix and Walmart entered into a promotion arrangement whereby Walmart agreed to transfer its DVD-rental subscribers to Netflix in exchange for 10% of the revenue and a $36 payment for each subscriber Netflix gained through referral.  Netflix also agreed to promote Walmart’s DVD sales in exchange for the referrals.

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DOJ and FTC Announce Proactive Approach to Monitoring Post-Affordable Care Act Antitrust Compliance at Joint Workshop

On February 24 and 25, the DOJ and FTC held their second joint workshop to examine the state of health care competition in the United States.  The workshop explored five main themes: (1) early observations regarding accountable care organizations; (2) alternatives to traditional fee-for-service payment models; (3) trends in provider consolidation; (4) trends in provider network and benefit design strategies; and (5) early observations regarding health insurance exchanges.

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Court Rules Against American Express Based on Both Direct and Indirect Evidence of Harm to Competition

On February 19, 2015, the District Court for the Eastern District of New York issued its ruling on liability in United States v. American Express. Following a seven-week trial, the Court found that American Express violated Section 1 of the Sherman Act by imposing certain restrictions on merchants that prevent the merchants from offering their customers incentives to use competing credit cards with lower retail charges. 

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Motion to Dismiss Denied in FX Rigging Case

A federal judge in New York on Wednesday allowed a consolidated class action by U.S.-based investors concerning the rigging of the foreign exchange (FX) market to move forward. In denying a motion to dismiss, U.S. District Judge Lorna G. Schofield ruled that the allegations in the complaint were sufficient to warrant discovery and, possibly, trial. 

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When Can an Organization Conspire with Itself?

The U.S. Court of Appeals for the Fifth Circuit last week reversed a jury verdict and rendered judgment for American Quarter Horse Association (AQHA) in a much-contested antitrust case about AQHA's ban of cloned horses. The Fifth Circuit left open the possibility that a single entity like AQHA could conspire with its own members or sub-parts. The takeaway? Without transparency in decision-making procedures, organizations can find themselves vulnerable in antitrust litigation. 

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Supreme Court Revives LIBOR Antitrust Appeal in Gelboim et al. v. Bank of America Corp. et al.

On January 21, 2015, the Supreme Court of the United States issued a highly anticipated decision in a LIBOR-based antitrust class action suit allowing a plaintiff to immediately take a direct appeal from an order dismissing that plaintiff’s complaint in its entirety even when that case has been consolidated by the Judicial Panel on Multidistrict Litigation and other cases remain pending in the consolidated action.

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Seventh Circuit to Motorola: No Rehearing En Banc

On December 1, 2014, we wrote about the Seventh Circuit’s decision in Motorola Mobility LLC v. AU Optronics Corp., which affirmed dismissal of the vast majority of Motorola’s claims regarding LCD panels.

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