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Thursday, November 8, 2018
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Harrison (Buzz) Frahn
Simpson Thacher & Bartlett LLP
On August 15, 2018, the Ninth Circuit issued a decision affirming the dismissal of an antitrust suit against Mitsubishi Corp. and a Mexican salt company jointly owned by Mitsubishi and the Mexican government. Sea Breeze Salt, Inc. v. Mitsubishi Corp., No. 16-56350, 2018 WL 3863842 (9th Cir. Aug. 15, 2018). The Ninth Circuit held that the “act of state doctrine”—which prohibits “the courts of one country” from sitting “in judgment on the acts of the government of another done within its own territory”—precluded a U.S. court from adjudicating plaintiffs’ claims regarding the Mexican salt company’s decision to sell its salt exclusively to Mitsubishi. Id. at *3, 9. According to the court, the decisions of the Mexican salt company regarding the disposition of the country’s salt was a sovereign act, and passing judgment on plaintiffs’ claims would require a U.S. court to declare that sovereign act invalid. Id. at *3-6. The court stressed, however, that the decision was limited to the particular facts of the case and that the act of state doctrine is “not a license for courts to dismiss cases . . . whenever a foreign state-owned enterprise is involved.” Id. at *9.
Matthew S. Weiler
Bleichmar Fonti & Auld, LLP
Background and Summary
Grace is a class action brought by owners of iPhone 4 and iPhone 4S concerning the FaceTime feature. Plaintiffs allege that Apple misled iPhone users about being able to use FaceTime on their iPhone 4 and 4S models, and that Apple deliberately disabled “FaceTime” for these iPhones. Grace, et al. v. Apple, Inc., 17-cv-00551-LHK, 2018 WL 4468825, at *1-*2 (N.D. Cal. Sept. 18, 2018). Specifically, Apple effectively disabled FaceTime for iPhone users with the iOS 6 operating system, requiring iPhone 4 and 4S users who wanted to continue to use FaceTime to upgrade to iOS 7, resulting in lost functionality, or purchase a new iPhone. Apple took these measures to save money on fees it was paying to a third party to enable users to use FaceTime and implemented these changes, that Plaintiffs characterized as a decision to “break” FaceTime for the iPhone 4 and 4S models, on April 16, 2014.Id. at *3.
David M. Goldstein
Farmer Brownstein Jaeger & Goldstein LLP
In a decision that was recently unsealed, Judge Beth Labson Freeman granted a Rule 12(b)(6) motion to dismiss a putative “no poach” class action against LG Electronics and Samsung Electronics. Frost, et al. v. LG Electronics Inc., et al., No. 16-cv-5206-BLF, ECF No. 206 (N.D. Cal. July 9, 2018).
Pritzker Levine LLP
On August 28, 2018, the Third Circuit Court of Appeals in LifeWatch Services, Inc. v. Highmark Inc., et al., case No. 17-1990, 2018 WL 4087882, reversed the Eastern District of Pennsylvania’s dismissal of an antitrust action against a health insurance association and its member insurance plan administrators arising out of their denial of coverage for telemetry monitors. The case was also remanded for further analysis of whether Plaintiff’s claims would still fail under the McCarran-Ferguson Act, which exempts private insurers from federal antitrust liability in certain circumstances, an issue the District Court did not reach.
O’Melveny & Myers LLP
In Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit affirmed the order of Judge John Z. Lee of the Northern District of Illinois (Eastern Division), denying a consumer privacy rights organization leave to amend their complaint against the city of Naperville, Illinois for engaging in an allegedly unreasonable search and seizure of its residents’ private data in the form of electric meter monitoring. 900 F.3d 521 (2018). The Seventh Circuit concluded that while the city was conducting a “search” by collecting and monitoring residents’ smart meter data, that search is a “reasonable” one under relevant Fourth Amendment law.
Ian L. Papendick
Kevin B. Goldstein
Dana L. Cook-Milligan
Winston & Strawn LLP
In Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc., 902 F.3d 735 (7th Cir. 2018), the Seventh Circuit affirmed the dismissal of antitrust conspiracy claims brought under the laws of 21 states, including the Cartwright Act and UCL, as time barred and, in the alternative, because the operative complaint did not plausibly plead a causal connection between the alleged conspiracy and indirect purchaser plaintiffs’ injuries. The plaintiffs’ claims were affirmed to have been time barred because the scope of the products at issue in the action had materially changed between the original complaint and the amended complaint, which was filed after the limitations period had run. The causation issue originally came before the Seventh Circuit as a question of antitrust standing under Associated General Contractors of California Inc. v. California State Council of Carpenters, 459 U.S. 519 (1983) and its progeny. However, in reaction to the Supreme Court’s clarification of what is a true “standing” issue in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the Seventh Circuit reframed how it would analyze what has long been termed “antitrust standing.” As a result, the Seventh Circuit announced that it would no longer refer to questions of “antitrust standing” and would instead discuss issues like those raised in this case through the lens of proximate cause and whether the requirements of the particular statutes at issue are met.
Mark F. Ram
Cotchett, Pitre & McCarthy, LLP
The EpiPen® is a disposable epinephrine auto-injector (“EAI”) that delivers epinephrine to treat anaphylaxis, a life-threatening allergic reaction. In 2007, Mylan NV acquired the right to market and distribute the EpiPen. Since 2009, Mylan’s share of the EAI market—through the EpiPen—has exceeded 90%; in 2012, Mylan’s market share was almost 100%. As has been widely reported, Mylan increased the EpiPen’s price by more than 600% while the cost of the EpiPen’s dose of epinephrine has remained about $1. In 2007, the EpiPen cost $100; by 2016, Mylan was charging more than $600.
View an interview with Bruce L. Simon, in conversation with David Faigman, at U.C. Hastings College of the Law on May 23, 2018.
UC Hastings College of the Law The Executive Committee of the Antitrust, UCL & Privacy Section of the California Lawyers Association is thrilled to announce its selection of Bruce L. Simon of Pearson, Simon & Warshaw, LLP as the 2018 “Antitrust Lawyer of the Year.” For those who practice in the field of antitrust law, Bruce needs no introduction. He is one of the leading antitrust lawyers not just in California, but nationwide. He has been appointed lead counsel for plaintiffs in many antitrust cases with national and global impact, and has secured billions of dollars in settlements for businesses and consumers.
One of his particularly notable cases is In Re: Credit Default Swaps Antitrust Litigation, a case alleging a conspiracy among the world’s largest banks to maintain opacity of the credit default swaps market as a means of maintaining supra-competitive prices of bid/ask spreads. As Co-Lead Counsel, Bruce was instrumental in achieving a landmark settlement amounting to $1.86 billion. It is one of the largest civil antitrust settlements in history.
He was also one of the lead trial attorneys in the In Re: TFT-LCD Flat Panel Antitrust Litigation. In recent times, this is one of a handful of antitrust class actions that has gone to a jury verdict in favor of the plaintiffs. The case was tried right here in the N.D. Cal, and resulted in a verdict of $87 million before trebling. Total settlements in the case amounted to $473 million.
Bruce has just been appointed co-lead counsel in In Re: German Automotive Manufacturers Antitrust Litigation. He represents indirect purchasers who allege collusion among the largest German car companies to stifle innovation, restrict supply and fix prices for their vehicles.
Bruce’s achievements are not limited to the courtroom. He is the former Chair of this Section and remains an advisor and active contributor. After Co-Chairing an ABA task force to increase participation of the plaintiffs’ bar in the Antitrust Section, and leading the Global Private Litigation Committee, Bruce is now on the Council. Bruce is also a past Chair of the Board of Directors of his alma mater, U.C. Hastings College of the Law, and served on the Board for 12 years.
Upon learning of his selection, Bruce stated, “I am so honored and humbled to be chosen. It is particularly poignant given the many friendships I have made during my service with the Section. “Antitrust Lawyer of the Year” is built on the high quality and talent of all who participate in the Section, and in particular, those who have received the award in the past. Being associated with all of you has taught me so much and has always kept me on my toes.”
You will hear much more about Bruce at the “Antitrust Lawyer of the Year” Dinner and Ceremony on November 8, 2018, at the Julia Morgan Ballroom in the Merchant Exchange Building in San Francisco. The Dinner and Ceremony will cap off what is shaping up to be a fantastic 28th Annual Golden State Institute, the preeminent competition law conference in the Western United States. Mark your calendars now!
Finally, I would like to thank everyone who took the time to submit nominations for the Antitrust Lawyer of the Year. The Executive Committee received many excellent nominations which made the decision all the more difficult. The process was a wonderful reminder of the bounty of accomplished antitrust lawyers who practice in California. On a personal note, I am particularly delighted the Executive Committee chose to bestow this honor on a fellow member of the plaintiffs’ bar. I know Bruce not just an eminently qualified antitrust lawyer with a noteworthy career, but as one heck of a nice guy!
Please join us in congratulating Bruce L. Simon on his selection as the 2018 “Antitrust Lawyer of the Year!”
Jill M. Manning
Chair, Executive Committee
Antitrust, UCL & Privacy Section
Cheryl Lee Johnson, Editor-in-Chief
Gain authoritative understanding of California antitrust and unfair competition statutes, policies and issues with one-volume convenience. This treatise brings you up to speed on everything from horizontal combinations and vertical restraints to public enforcement of California antitrust laws and trial considerations.
You get full coverage of The Cartwright Act along with related California consumer and unfair competition laws, and how they apply to the health industry, regulated industries, the labor market, electronic media, the internet and other fields. Additionally, there are chapters covering damages, defenses to liability including exemptions and immunities, injunctive relief, class actions, attorney’s fees and costs, insurance issues, and much more. This publication includes contributions from over 120 highly experienced antitrust practitioners in both the private and government sectors, as well as the executive members of the Antitrust, UCL and Privacy Section.
$260, 1 volume, loose-leaf, updated annually, Pub. #01577, ISBN 9780769856896
To order, call 800-223-1940 or visit the LexisNexis Store.
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