Antitrust and Unfair Competition Law

Antitrust and Unfair Competition Law Section: E-Briefs, News and Notes—January, 2022

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Welcome to the January 2022  E-briefs, News and Notes. This edition includes three E-Briefs  including an extensive analysis by Betsy Manifold, Thomas H. Burt and Kate McGuire of Wolf Haldenstein of a Ninth Circuit opinion providing guidance on the evidence needed to support a plaintiffs’ verdict in an antitrust case. There is also a brief on a district court opinion finding that the Antitrust Division’s first wage-fixing indictment alleged a per se violation on Section One of the Sherman Act. Agency Updates contains links to important DOJ/FTC press releases.  A Deeper Dive covers a panel at last November’s Golden State Institute: “A View From the Top” discussing challenges operating a firm in the current environment.  Lastly, the News and Notes section contains some updates with links to other events of interest to unfair competition and antitrust lawyers.

If you would like more information about getting involved in the Section, or to help with E-briefs in particular, please reach out.  Thanks.


Ninth Circuit Proves Guidance on Evidence Necessary to Support Plaintiffs’ Verdict in Antitrust Cases | Betsy Manifold, Thomas H. Burt and Kate McGuire, Wolf Haldenstein

By Betsy Manifold,  Thomas H. Burt and Kate McGuire, Wolf Haldenstein

In Optronic Techs, Inc. v. Ningbo Sunny Elec. Co., 2021 U.S. App. LEXIS 35876 (9th Cir. Dec. 6, 2021), the Ninth Circuit upheld the jury verdict awarding $16.8 million in monetary damages subject to remand on the single issue of the set-off amount for a partial settlement.

Underlying Facts

Plaintiff Technologies Orion, Inc. (“Orion”) designs and markets telescopes.  The Defendant Sunny Entities (“Sunny”) manufacture telescopes.  The telescope distributing and manufacturing markets are small and highly concentrated.  Key distributors were Orion, Meade Instruments Corp. (“Meade”), and Celestron (owned by Synta Technology (with related entities “Synta”)).  The key manufacturers were Sunny, Synta, and Meade, with Sunny and Synta accounting for up to 80 percent of the telescopes imported into the United States.  In 2013, Meade put itself up for acquisition, and, after Orion made an unsuccessful bid losing out to a nonparty suitor, Sunny conspired with Synta to enable Sunny to make a further bid and acquire Meade.  In 2014, an e-commerce company called Hayneedle decided to offer valuable website addresses used by Celestron and Orion submitted the highest bid.  Synta conspired with Sunny to cut off Orion’s credit, making Orion unable to fund its purchase of the website addresses.  In September 2016, Orion settled its antitrust claims with Synta but proceeded to trial with its claims against Sunny.    

1. No Erroneous Evidentiary Rulings Re: Expert Reports and Testimony

Defendant sought exclusion of multiple plaintiff experts, which the Circuit reviewed utilizing an abuse of discretion standard.  Defendant challenged Orion’s telescope manufacturing expert, who asserted that Sunny and Synta could make the same telescopes, on the basis that most of his data was publicly available, and not from extensive plant inspection or nonpublic documents.   The expert evidence based on the companies’ public product specifications and data was “tethered to facts of the case” and supported an inference of horizontal competitors.   The expert’s admission that counsel drafted 60% of the expert report did not create reversible error.  The background sections drafted by counsel were identified by the expert with the language, “I am informed that…” and the expert signed the report. The District Court reasonably found that Orion’s expert was qualified (a Ph.D. in optical sciences, published research, and work at AT&T Bell Laboratories on the fabrication and design of lens systems). He had even built his own telescopes as a hobby, but only “a few.”

The Ninth Circuit also found that the methodology of Orion’s damages expert was sufficiently tied to the facts.  Orion’s damage expert used two methods – direct (data from telescope manufacturing market) and a structural model using a Cournot Equilibrium and data from cartels in similar markets – and then used the structural method to check the direct method calculation.   

As to Defendants’ experts, the Court found that Sunny’s appeal of the District Court’s final pretrial ruling excluding one of Sunny’s rebuttal experts as “non-qualified” was “unavailing.”  Sunny’s rebuttal expert was not an economist, had no experience with antitrust damages, never calculated overcharge damages in an antitrust context, and did not understand the methods and models used by Orion’s damages expert.   

The Ninth Circuit also upheld the District Court’s mid-trial curative statement limiting the scope of Sunny’s only testifying rebuttal witness.  The expert had offered no opening report, but only a rebuttal report, and was properly limited to criticism of Orion’s expert methodology.  The expert’s attempt to offer an alternative damages estimate was struck and a curative instruction issued, which the Ninth Circuit held appropriate. 

2. Sufficient Evidence Supports Jury Verdict Under Sherman Act, Section 1

The Ninth Circuit upheld the jury’s verdict under Section 1 of the Sherman Act. Sunny failed to overcome the sufficiency of evidence supporting the jury verdict in favor of Orion. 

As to the conspiracy to acquire Meade to restrict the market, evidence included: an email between company executives agreeing that Synta would “provide financial support to Sunny” for its purchase of Meade; the purchase of Meade was funded by a company jointly owned by principals of Sunny and Synta; and an email from the CEO of Meade discussing how the owners of Sunny and Synta (and their respective subsidiaries) “can dominate the telescope industry.” 

As to the conspiracy to fix prices, sufficient evidence to support the jury verdict included an email exchange between executives of Sunny and Synta in which Synta “instructed Sunny to raise the prices it charged Orion to match the prices that Synta was charging Orion [and] Sunny agreed [,]” and price lists showing that Sunny charged Orion fifty percent more than it charged Synta subsidiary, Celestron, for identical items. 

As to the conspiracy to fix credit terms, the evidence included both Sunny and Synta terminating Orion’s credit because Orion had submitted the highest bid for the website addresses, and doing so in rapid succession, in communication with each other, and in nearly identical emails. 

Finally, the Ninth Circuit found sufficient evidence to support the jury verdict that Sunny and Synta agreed to divide customers between them. Orion submitted emails between Synta and Sunny executives that specifically discuss “divid[ing] the products and sell[ing] them to different markets to avoid conflicts.”  The Ninth Circuit held that this was “quintessential evidence of a market allocation conspiracy.”  

3. Sunny Dangerously Close to Monopoly Power and Held Liable Under Section 2

The Ninth Circuit found that none of Sunny’s attacks undermined the jury’s verdict that Sunny unlawfully conspired to monopolize the global telescope manufacturing market.  First, the Ninth Circuit rejected Sunny’s argument that Orion pursued a “joint monopoly” theory at trial.   Sunny agreed to the challenged jury instruction (“one of the parties” to the agreement) and substantial evidence was presented that Sunny was close to acquiring monopoly power.  Second, Orion’s expert properly defined the relevant market at trial.   The Ninth Circuit held that there is no requirement to use any specific methodology in defining the relevant market. The expert’s approach of using a “barriers to entry” analysis without a SSNIP (significant non-transitory increase in price) test, where there were no close substitutes, was sufficient.  Third, the Ninth Circuit found sufficient evidence supporting Sunny’s specific intent to gain monopoly power.   The jury could have inferred that as horizontal competitors Sunny and Synta worked together to help Sunny acquire Meade, set favorable wholesale pricing, raise prices and achieve a market allocation scheme – all showing specific intent to monopolize.  Finally, the testimony relating to Sunny’s market share ranging from 43 to 63 percent was sufficient to establish “a dangerous proximity to market power.”        

4. Injunctive Relief Under the Clayton Act Was Properly Granted

The Ninth Circuit also upheld the jury’s finding of “a reasonable likelihood that Sunny’s acquisition of Meade would substantially reduce competition” in violation of the Clayton Act.  The Ninth Circuit cited evidence that this acquisition reduced the number of telescope manufacturers from three to two and enabled Sunny to charge supracompetitive prices.  It also found that Sunny’s forgoing profits by refusing to supply its own newly purchased subsidiary, Meade, in order to take Meade out of the market, stifled competition. 

The Ninth Circuit upheld the grant of injunctive relief on the Clayton Act claim, requiring Sunny to supply Orion and Meade on non-discriminatory terms.  It rejected Sunny’s argument under Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1202, 1206 (9th Cir. 1997), that extending injunctive relief only to Orion and Meade rather than the whole market was anti-competitive, and instead held that the District Court had acted within its discretion in fitting the decree to the needs of the case.

5. Conspiracy Impact Continued Post 2016

The Ninth Circuit found that even if the conspiracy between Sunny and Synta to eliminate Meade as an independent company ended in 2016, when Orion and Synta signed the Settlement and Supply Agreements, Orion could still recover post 2016 damages because it continued to suffer economic harm to competition caused by the illegal concerted activity. Here, the conspiracy achieved its objective by eliminating Meade as an independent competitor in a highly concentrated market with fewer competitors and higher costs. Since Orion’s antitrust injuries arose directly from the change in market structure due to a proven antitrust violation, the Ninth Circuit held that the violation may be a material cause of that injury and that the recovery of damages is permitted.   It is no defense to argue that the conspiracy had ended when the conspiracy achieved its anticompetitive objective.

6. Reversal and Remand Concerning Post-Trial Exclusion of Affirmative Evidence from Rebuttal Expert

The Ninth Circuit held that the District Court had abused its discretion in excluding a post-trial declaration from Sunny’s expert on the valuation of a set-off from a prior settlement, offered in support of a motion to amend the judgement.  It explained that the District Court had excluded the testimony because it found that the witness had not been timely disclosed, but in fact, the record showed that Sunny had timely disclosed her as a rebuttal witness and that that was sufficient.  The Ninth Circuit did not opine further on the sufficiency or even the admissibility of the testimony. 

7. Denial of Cross-Appeal

Finally, the Ninth Circuit rejected a cross-appeal by Orion on the District Court’s entry of summary judgment for Sunny on the issue of whether Sunny was responsible for Orion’s failure to acquire Mead.  Meade initially rejected Orion’s bid for that of a higher nonparty bidder.  When the winning bidder lowered its bid to equal Orion’s offer, although Meade contacted Orion, Orion declined to increase its offer.  The Ninth Circuit held that this created a strong presumption that Orion would not have acquired Meade even if Sunny had not conspired with Synta to make an unsolicited higher bid. 


The Ninth Circuit shut down virtually all of the defendants’ efforts on appeal.  Noteworthy holdings include: a flexible approach to methods of proving market definition; acceptance of counsel’s role in crafting background portions of expert reports; rejection of a rebuttal expert’s attempt to proffer an affirmative damages estimate from the stand; and a willingness to allow District Courts to craft practical injunctions to cure anticompetitive effects.  The only issue on remand is whether the District Court should admit testimony from the defendants’ expert as to the amount that the judgment should be offset by a prior settlement, and, if so, whether and by how much that reduces the judgment.  Finally, generally the opinion offers a caution to defendants about the prospects of reversing a jury verdict following an antitrust jury trial with strong merits evidence.  The opinion leans strongly on the liability evidence, especially the defendants’ own correspondence, in supporting the sufficiency of the verdict.

District Court Finds Wage Fixing Indictment Alleges a Per Se Violation
United States v. Jindal et al., 4:30-cr-00358-ALM-KPJ (E.D. Tex. Nov. 29, 2021) | Bob Connolly, Law Office of Robert Connolly

Bob Connolly, Law Office of Robert Connolly

On November 29, 2021, in U.S. v.  Neeraj Jindal and John Rodgers, Civil Action No. 4:20-CR-00358A (E.D. Texas), District Court Judge Amos L. Mazzant rejected defendants’ motion to dismiss the indictment on various grounds, including challenges to the per se rule. Defendants argued that “wage-fixing” was not covered by the Sherman Act because it did not involve the purchase and sale of goods. Defendants also argued that courts did not have enough experience with wage-fixing (this was the government’s first wage-fixing indictment) to label the conduct a per se violation.

The indictment charges Neeraj Jindal, the former owner of a physical therapist staffing company, and John Rodgers an ex-director of the company, with a per se Sherman Act violation by agreeing to fix the wages paid to physical therapists and therapist assistants in the Dallas-Fort Worth area.

Judge Mazzant wrote a thoroughly researched and well-reasoned opinion finding that the per se rule applied to an agreement to fix wages. The opinion dealt with number of issues raised but here I discuss two important aspects of the Court’s ruling.  The full opinion is well worth reading as labor market cases, both criminal and civil, are exploding across the country.

A.        The Per Se Rule Applies to Buyers as Well as Sellers

Judge Mazzant recognized that the facts of the case were unusual.  This was the first ever criminal wage-fixing case brought by the Antitrust Division. Price-fixing cases nearly always involve the sale of good with the restraint resulting in increased prices for consumers.  A successful wage-fixing conspiracy could arguably reduce the price paid by consumers–if the savings in suppressed wages was passed on.  Nonetheless, the Court found that “[J]ust because the typical price-fixing conspiracy involves certain hallmarks does not mean that other less prevalent forms of price-fixing agreements are not likewise unlawful.”  The Court noted that price-fixing agreements among buyers have been condemned as per se violations citing Mandeville Island Farms, Inc. v. Am. Crystal Sugar Co., 334 U.S. 219, 235 (1948)(“It is clear that the agreement is the sort of combination condemned by the Act, even though the price-fixing was by purchasers, and the persons specially injured . . . are sellers, not customers or consumers.”) and Nat’l Macaroni Mfrs. Ass’n v. Fed. Trade Comm’n., 345 F.2d 421, 426–27 (7th Cir. 1995)(finding a price-fixing agreement among manufacturers to standardize the composition of their product in an effort to depress the price of an essential raw material to be illegal per se).

B.        The Per Se Rule Covers All Price Fixing Schemes Even If it Is The First Time and    Industry Has Been Targeted.

The defendants also argued that the per se rule applies only after the courts have had enough experience with a particular restraint to find that it always or almost always would restrain trade and since this was the first ever wage-fixing case, that threshold was not met here.  “Defendants contend that agreements are deemed unlawful per se “only after courts have had considerable experience with the type of restraint at issue,” (Dkt. #36 at p. 10)(quoting Leegin, 551 U.S. at 886).”  The Court wrote that judicial experience is needed to create a new per se rule, “Judicial experience informs the decision to recognize a “new per se rule.”  But price-fixing is not a new per se rule and judicial experience is not needed in every industry before applying the established per se rule against price-fixing to a new form. (“As courts have recognized, price-fixing agreements come in many forms.”).  After surveying many cases Judge Mazzant wrote:

“The definition of horizontal price-fixing agreements cuts broadly. As such, any naked agreement among competitors—whether by sellers or buyers—that fixes components that affect price meets the definition of a horizontal price-fixing agreement. See Socony-Vacuum, 310 U.S. at 221.”

The Court concluded, “The indictment thus alleges a naked price-fixing conspiracy among buyers in the labor market to fix the pay rates,” and “As such, the indictment describes a price-fixing conspiracy that is per se unlawful.”

Judge Mazzant also quoted higher authority, Justice Kavanaugh, who wrote in his concurrence in National Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021): “Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.” Id. at 2167–68 (Kavanaugh, J., concurring) (citations omitted). 

This is an important decision because the Antitrust Division has a number of current criminal labor market cases and all parties will be citing and dealing with this thorough opinion.

Update on Rex v. Zillow: District Court Dismisses False Advertising/Deceptive Acts Claim | Bob Connolly, Law Office of Robert Connolly

Bob Connolly, Law Office of Robert Connolly         

In REX v. Zillow, Case No. 2:21-cv-03312 (W.D. Wash. Dec. 16, 2021), the Court ruled on defendant National Association of REALTORS® (“NAR”) motion to dismiss plaintiff’s amended complaint.  Earlier in this case, on September 2, 2021, the Court entered an Order denying in part and granting in part NAR’s initial motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff’s claims. The Court denied NAR’s motion as to plaintiff’s antitrust claims brought under Section 1 of the Sherman Act, 15 U.S.C. § 1, and the Washington Consumer Protection Act (“CPA”). The Court granted NAR’s motion as to plaintiff’s claims for false advertising or deceptive acts under the Lanham Act, 15 U.S.C. § 1125, and the CPA and dismissed the claims without prejudice and with leave to amend, which the plaintiff did.

In granting the initial motion to dismiss the Court concluded that plaintiff’s initial false advertising complaint did not contain allegations explaining what NAR did to design or encourage the labeling system on Zillow’s websites, let alone when, where, and how NAR did it. The Court found that the allegations remained absent from plaintiff’s amended complaint. To cure the identified deficiencies, plaintiff offered an agency theory, claiming that Zillow acted as NAR’s agent when changing its websites.

The two elements of agency in Washington are mutual consent and control by the principal of the agent.  Federal Rule of Civil Procedure 9(b) provides that “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R.Civ. P. 9(b).  The Court found that plaintiff had not pleaded an agency relationship with particularity under Rule 9(b).  Even under Federal Rule of Civil Procedure 8(a)(2)’s less demanding pleading standard, the Court held that Plaintiff’s allegations do not plausibly allege that Zillow acted as NAR’s agent. Plaintiff’s allegations were nothing more than legal conclusions unsupported by any factual assertions. The Court therefore dismissed Rex’s claims for false advertising or deceptive acts brought under the Lanham Act and the CPA, RCW 19.86.020 (Counts III & V), and these claims were dismissed with prejudice because plaintiff failed to plead any facts alleging that NAR manifested consent for Zillow to act on its behalf, and subject to its control, with respect to the labeling system for Zillow’s websites.

This latest Order by Judge Zilly follows an earlier motion to dismiss which was denied.  That Order was the subject of an earlier E-brief, reprinted below for convenience:

Real Estate Exch. Inc. v. Zillow Inc., 2021 U.S. Dist. LEXIS 167281, at *21 (W.D. Wash Sep. 2, 2021) | Lily L. Purqurian, JD Candidate, 2022, University of San Diego School of Law

Lily L. Purqurian, JD Candidate, 2022, University of San Diego School of Law

The United States District Court for the Western District of Washington denied Zillow and the National Association of Realtors’ (NAR) motion to dismiss. Real Estate Exch. Inc. v. Zillow Inc., 2021 U.S. Dist. LEXIS 167281, at *21 (W.D. Wash Sep. 2, 2021). Plaintiff, REX –– Real Estate Exchange, Inc. –– brought suit against the two for an unreasonable restraint of trade in violation of Section 1 of the Sherman Act, among other claims. Id. at 3.  REX alleged that the defendants placed REX’s listing in an unfavorable tab because REX’s commission rate was below the industry standard. The defendants argued lack of standing under Article III and, furthermore, a failure to sufficiently plead a Section 1 violation. Id. 21. Plaintiff prevailed despite both assertions. Id.

Plaintiff is a nationwide, licensed broker that employs licensed real estate agents. It is not a member of NAR or any MLS, so home sellers who elect to purchase a home through plaintiff have more power in negotiating agent fees. Id. at 3. Plaintiff’s clients pay an average commission of 3.3 percent of a home’s sale price, whereas NAR’s members have a “historically high” commission of 5.5 percent. Id.

The court specifically looked to the foundations of plaintiff’s complaint: the optional Segregation Rule (also known as the No-Commingling Rule), and the mandatory Buyer Agent Commission Rule. As a trade association for real estate professionals, NAR promulgates rules for how members should operate their businesses. Id. at 2-3. The Segregation Rule requires a separation between listings obtained through multiple listing services’ (MLS) internet data exchange and those obtained from other sources. Id. The mandatory Buyer Agent Commission Rule requires any MLS listing to provide a predetermined offer of commission to a buyer’s agent that cannot be modified in the future. Id.

Zillow, a real estate aggregator site, partnered with NAR and several MLSs in late 2020. Id. at 4-5. As a result of this partnership, Zillow adopted NAR’s Buyer Agent Commission Rule and promised that “all Zillow-owned homes will be listed on the MLSs with commissions paid to agents representing buyers.” Id. As a result, plaintiff alleges, real estate commissions in the United States are “two to three times higher” than other markets. Id. at 5.

Zillow also adopted NAR’s Segregation Rule by creating an ‘Other Listings’ tab on its display page, which is secondary to the default ‘Agent Listings’ tab. Id. at 5-6. Plaintiff’s listing has been relegated to the ‘Other Listings’ tab, despite plaintiff’s customers’ homes all being listed by licensed real estate agents. Id. Plaintiff showed through graphs that views of its listings dropped dramatically because of this segregation, and sellers of the homes in the ‘Other Listings’ tab had to keep their home on the market for longer and accept lower prices. Id.

Plaintiff Showed Article III Standing

In order to satisfy standing under Article III, a plaintiff must prove (1) injury in fact that is (2) fairly traceable to the defendant’s actions and is (3) likely to be redressed by a favorable decision. Id. at 9. The court reminded that, when ruling on a motion to dismiss for lack of standing, “courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).

The court found plaintiff’s allegations sufficiently showed Article III standing. Id. at 11. NAR argued that the Segregation Rule was optional and it was Zillow’s prerogative to follow the rule, so there is no injury NAR can be traceable to. Id. at 9-10. The court rejected this interpretation, however, because NAR is a “direct participant” in the injury. Id. at 10. It is not just the optional Segregation Rule, but the mandatory Buyer Agent Commission Rule at issue. The latter led Zillow to change its website so that ‘Agent Listings’ and ‘Other Listings’ were segregated, thus allegedly harming plaintiff. Id. Further, plaintiff sought injunctive and statutory relief for this harm, so it is redressable. Id. at 11.

Rule 12(b)(6) Standard

In order to survive a motion to dismiss, a complaint must provide “more than labels and conclusions and contain more than a formulaic recitation of the elements of a cause of action.” Id. at 11 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The question is whether the facts provide a plausible ground for relief. Id.

Plaintiff Showed Plausible Antitrust Violations under Section 1 of the Sherman Act

The court ruled that plaintiff could not succeed under a per se analysis of Section 1, so the court decided in favor of the plaintiff with a rule of reason analysis. Id. at 12.

Under a rule of reason claim for Section 1, the plaintiff must show “(1) a contract, combination or conspiracy among defendants; (2) by which the defendants intended to harm or restrain trade or commerce among several states …; (3) which actually injures competition; and (4) plaintiff is the proper party to bring the antitrust action because it was harmed by defendants’ contract, combination, or conspiracy.” Id. at 12-13 (quoting In Re Nat’l Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1150 (9th Cir. 2019)).

The court found plaintiff showed evidence of an anticompetitive agreement intended to restrain trade because Zillow changed its websites to abide by NAR’s rule. Id. at 16. Zillow argued otherwise that it was Zillow’s decision to segregate the listings. Id. at 13. The court referred to the Supreme Court in Allied Tube & Conduit Corp v Indian Head, however, which held “[c]oncerted efforts to enforce (rather than just agree upon) private product standards face more rigorous antitrust scrutiny.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 501 n.6 (1988). Zillow redesigned the website on its own accord and enforced a “misleading labeling system,” which is plausible evidence of utilizing NAR’s rules to restrain trade. Real Estate Exch. Inc. v. Zillow Inc., 2021 U.S. Dist. LEXIS 167281, at *14 (W.D. Wash Sep. 2, 2021).

NAR could not escape the court’s judgment, either. Despite arguing that its rules are optional, the court reiterated the existence of the mandatory Buyer Agent Commission Rule. Id. at 15. Further, even with regard to voluntary rules, the court again referred to the Supreme Court’s finding that “so-called voluntary standards [could be deemed] repugnant to the antitrust laws.” Am. Soc’y of Mech. Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 561-62, 570 & 574 (1982). NAR does not only enforce the rules but has also rendered them “ubiquitous in the marketplace.” Real Estate Exch. Inc. v. Zillow Inc., 2021 U.S. Dist. LEXIS 167281, at *16 (W.D. Wash Sep. 2, 2021). So the complaint plausibly alleged Zillow and NAR’s involvement in anticompetitive agreements intended to restrain trade. Id.

The court then wrestled with the restraint’s actual effect on competition. Zillow argued that the only harm suffered by consumers is outside the relevant market. Id. at 17. The court disagreed. Id. The court deemed the Buyer Agent Commission Rule as raising antitrust concerns in and of itself because, as another court found, “the offer is the same regardless of the buyer-broker’s experience or the value of services provided by the buyer-broker” and the popularity of Zillow exacerbates the issue. 18-19 (quoting Moehrl v. Nat’l Assoc. of Realtors, 492 F. Supp. 3d 768, 784 (N.D. III. 2020). NAR was found to be similarly positioned, with substantial market power, in the relevant market for real estate brokerage services. Id. at 19-20.

Lastly, the court found the complaint sufficiently alleged actual harm because the segregated listings caused listings in the ‘Other Listings’ category to stay on the market longer and settle for lower prices. Id. at 20.


The court thus denied both NAR and Zillow’s motions to dismiss the antitrust claims under Section 1 of the Sherman Act and the CPA. If the plaintiff is successful as the case moves on, it likely will force the NAR and Zillow to make changes in their tab placement rules.

Section News

New Directions in Antitrust Symposium 2022 | February 4 @ 10:00 a.m. – 4:00 p.m.

Presented by Hastings Law Journal. Co-sponsored by the CLA Antitrust and Unfair Competition Law Section.


With high-profile litigation, a profusion of legislation, congressional investigations, and the rise of a Neo-Brandeisian theory of antitrust, the past five years have paved the way for a new critical appraisal of America’s competition laws. Now, antitrust is at an inflection point. With the Biden Administration appointing members of the latest wave of antitrust thought to top agency and advisory positions, as well as prioritizing competition, this moment is ripe for exploring new directions in antitrust. This symposium addresses the opportunities and challenges posed by the current antitrust laws, as well as the industries that are likely to shape the next era of antitrust application and theory.

Fifth Annual Celebrating Women in Competition Law in California | March 10, 2022, @ 5:30 p.m. – 8:00 p.m.

Location: Morgan Lewis & Bockius One Market, Spear Street Tower, 28th Floor San Francisco, CA 94105


Join us for the Fifth Annual Celebrating Women in Competition Law in California on March 10, 2022, in San Francisco!  In a conversation moderated by the Honorable Beth Labson Freeman, the panel of female trailblazers of the competition bar will share their paths to leadership, discuss the role of gender in their leadership styles, and provide advice for navigating gender-based obstacles. The evening will conclude with a hosted networking reception featuring delectable bites and beverages.

This program offers 1.0 Hour Recognition and Elimination of Bias.

The 31st Annual Antitrust Lawyer of the Year Reception and Dinner

The 31st Annual Antitrust Lawyer of the Year Reception and Dinner with some additional programming will take place in May 2022 (registration to follow closer to the event).  The Section and its members will honor and congratulate Dan Wall, of Latham & Watkins LLP, as the 2021 Antitrust Lawyer of the Year.

Get Involved! Join Our Executive Committee

The Executive Committee of the Section is accepting applications to join the Executive Committee. 

The Executive Committee currently has 17 members who practice in all areas of antitrust and UCL law, and who are responsible for the activities of our Standing Committees and other programs and initiatives. The Executive Committee holds a one-hour meeting each month and each quarter meets for several hours to discuss and plan the Section’s activities. If you would like to learn more about the Executive Committee, you can find more information here. Please feel free to contact any member of our Executive Committee that you know or one of the officers if you would like to learn more.

The application period is open now and closes on March 1. If you would like to apply to join the Executive Committee, you can find the application here.

Students Can Join the Section for Free

Law students can join up to three sections of the California Lawyers’ Association (CLA) for free?  We’d love to have you. Find more information here.

Visit the CLA Career Ceneter

Post a job; find a job. More information is available here.

A Deeper Dive: Views from the Top: Managing Antitrust Practice in Changing Times

[This article is a write up of a panel discussion that occurred at the Golden State Antitrust and Unfair Competition Law Institute in November 2021.  Sadly, due to the Omicron outbreak, it continues to be a very relevant topic.]

Lee Brand,  Lee is counsel in the San Francisco office of Pillsbury Winthrop Shaw Pittman LLP, where he focuses his practice on complex commercial litigation with an emphasis on antitrust disputes and consumer class actions.  He can be reached at

This program featured panelists Shana Scarlett of Hagens Berman Sobol Shapiro LLP, Dena Sharp of Girard Sharp LLP, and Susannah Torpey of Winston & Strawn LLP.  Kalpana Srinivasan of Susman Godfrey LLP was not able to attend but shared her thoughts in advance with program moderator Jiamie Chen of Parabellum Capital LLC.

Litigation Delays and Remote Mediations and Depositions

Ms. Chen began the discussion by noting that Ms. Scarlett’s case, In re Broiler Chicken Antitrust Litigation, had reached some meaningful settlements during the pandemic and asked her to discuss how she had achieved those results.  Ms. Scarlett noted that, like many other cases, Broiler Chicken initially ground to a halt at the beginning of the pandemic but then started moving forward once people leaned into remote video depositions, hearings, and mediations.  Scarlett noted that she had been a fan of remote depositions even before the pandemic and that once parties and ADR providers became comfortable with conducting mediations by Zoom it allowed for a marked increase in settlements.

Ms. Torpey shared her experience managing an MDL that was midway through 100 depositions when everything shut down due to the pandemic.  In that case, the court ordered the parties to agree on a remote deposition protocol within one month so that the case could continue, and Torpey highly recommended such tight, court-ordered deadlines to keep cases moving forward.  She also remarked that remote depositions are likely here to stay and that the change allowed her to personally take far more depositions in the case.  Ms. Scarlett added that she plans to continue including remote depositions in her deposition protocols.

Ms. Sharp asked the other panelists what depositions, if any, they still plan to take in person.  Ms. Scarlett said for the most part she will continue to use remote depositions for two key reasons.  First, it forces the use of electronic exhibits, which avoids the huge waste of paper associated with live depositions and ensures that final deposition exhibits will be high quality originals rather than degraded scans.  Second, she sees value in recording the attorney taking the deposition as it makes for a more engaging presentation if the deposition video is ultimately played in court. 

Ms. Sharp added that she has insisted on defending attorneys also being recorded as it changes the demeanor of the deposition proceeding and the trial cuts taken from it.  Sharp also noted that it will be fascinating to see the first generation of post-COVID trials that make use of these videos and believes that they will portend a more efficient way to run trials going forward, making Zoom depositions truly transformational.  There is also a related potential sea change in the willingness of some courts to allow remote testimony live at trial under Rules 43 and 45, although it is unclear whether courts will broadly require witnesses to appear remotely where they are located outside of the traditional trial subpoena range.  Courts in the Northern District of California have been very adept at Zoom and generally now insist on remote case management conferences for efficiency.  Overall, Sharp sees no downside to many depositions and hearings being held remotely going forward.  She believes that COVID has precipitated changes that the competitive and adversarial nature of civil litigation had previously prevented and that these changes will make the litigation process much more efficient.  Remote depositions and hearings also create more opportunity for junior lawyers to observe such proceedings; although, there are real management challenges to avoid letting newer attorneys fall through the cracks in the current remote environment.  Ms. Torpey added that her firm had set up a program for its summer associates to view remote hearings across the country.

Focus on Tech

Ms. Chen turned the conversation to the current focus on tech in the antitrust community, noting that Google is currently facing many lawsuits, including Ms. Sharp’s case, In re Google Digital Advertising Antitrust Litigation, which was recently consolidated in the Southern District of New York.  Sharp responded that the Digital Advertising matter was going very slowly, although she attributed that to the dynamic of parallel private and government actions.  Sharp went on to explain that it can be difficult to identify anticompetitive conduct in the tech space because it is so specialized and because it can be hard to see on the surface, especially when a service is as convenient as Google.  Particularly in this context, she sees it as a benefit to the private bar to be working in parallel with state and federal enforcers to get good results for both private clients and consumers in general.  Because there are competing interests among private plaintiffs in the Digital Advertising case, including overlapping potential classes, it has been her judgment and Judge Castel’s decision to let the state attorneys general go first.  A consolidated complaint was recently filed in the state AG action and Sharp believes the future of the overall litigation will be clearer once those pleadings are settled.

Ms. Chen next asked Ms. Torpey how the tech industry has been reacting to the focus on antitrust issues in tech.  Torpey first responded that thus far we have only seen the tip of the iceberg of the antitrust tech boom, that there is extensive confidential activity going on at the FTC and DOJ, and that a new wave of private litigation is likely once those investigations become public.  Torpey went on to explain that the tech industry is very diverse and that many smaller tech companies are just now learning how they have been impacted by Google from the recently unsealed complaint in the Digital Advertising litigation.  She also noted a divergence of reaction among tech companies, with some like Apple releasing self-repair services for consumers to reflect the priorities of the Biden administration, while others will be less able to pivot where new investigative priorities go to the heart of their business models.  Those in the latter category will likely wait for regulatory guidelines, and to see how things play out in the courts, as they will not want to make changes until they are forced to do so.

Ms. Chen relayed that Ms. Srinivasan had shared that there is now a great deal of focus on data as a valuable form of IP and commodity generally, permeating the approach to the law in many different practice areas including antitrust, contract, and trade secrets.

Remote Hearings

Ms. Chen circled back to the subject of Zoom hearings, asking the panelists to weigh in on the state of those proceedings.  Ms. Sharp mentioned the benefit of getting real time and free flowing feedback from her team during arguments.  Ms. Scarlett agreed such communication is much more natural than the traditional post it note passed up during a live hearing, but also pointed out a trend of increased interruption of female lawyers and judges, who cannot give the same nonverbal cues that would normally ensure their chance to speak during a live proceeding.  Scarlett appreciated the approach that the Supreme Court implemented for telephonic arguments, with each justice asking questions in order, which she believed had been spurred in part by the female justices being interrupted.  Sharp responded that such bad conduct is often self-defeating, particularly in front of a female judge, and Scarlett agreed but noted that it may still send the wrong message to those watching.

Ms. Chen next asked what impact the move to Zoom has had on class leadership hearings in particular.  Ms. Scarlett responded that there had been a swell in female lawyers prevailing at such hearings before the pandemic, and she did not see the pandemic or the move to Zoom changing that.  Ms. Sharp added that leadership hearings are often among the most tame and organized hearings because the number of parties involved requires courts to impose greater organizational structures like speaking order and time limits.  In her experience, it is the more rough and tumble hearings that have led to the same kind of “stomping around” that has historically been problematic at live hearings, although she feels that many lawyers are at their best in court at those types of hearings when they must be ready for anything.  Scarlett agreed that lawyers of her and Sharp’s vintage certainly had the experience to handle such situations, but that she did not want the next generation to have to similarly learn to “suck it up.”

Ms. Torpey noted that the Zoom format provided an opportunity to carve out a portion of an argument for more junior lawyers.  Ms. Sharp agreed and added that she tried to choreograph such opportunities for young associates, such as assigning them to address a particular issue or question and then turning the floor over to them when it was raised.

Remote Business Development

Ms. Chen asked Ms. Torpey to address the impact of Zoom on pitches and other client interactions.  Torpey responded that before the pandemic she would often fly from New York to Texas or California for an hourlong pitch or client meeting.  Further, pre-COVID, it was very unusual to interact with clients via Zoom.  Now Zoom is completely normalized and clients are much more receptive to both formal pitches and informal social interaction on the platform.  Chen relayed that Ms. Srinivasan agreed that clients had quickly adapted to Zoom and that her firm would often send slide decks to clients in advance to facilitate highly productive Zoom meetings and pitches.  Ms. Sharp noted that, in her experience, judges had been understanding and accommodating of Zoom-related difficulties like children inadvertently appearing on camera and wondered whether clients had been similarly understanding.  Torpey responded that they had, and that Zoom can also provide a window into one another’s home life that has led to conversations beyond work and enabled her to forge more personal relationships in the Zoom era.  Ms. Scarlett believes that Zoom has equalized and normalized being a working parent, as both men and women must deal with family interruptions while working from home.  Torpey added that working remotely has allowed her to be more productive than ever by saving commute time, and that even though she has started going back to work, she will still stay remote to maximize her time on particularly busy days.

Financial Impact

Ms. Chen next asked the panelists whether the pandemic had been net positive for cash flow at their respective firms.  Ms. Torpey answered yes, adding that COVID has catapulted firms to adopt more inventive structures and opportunities that they would not have been bold enough to institute without the push of the pandemic.  For example, firms like hers are trying out hoteling and shedding office space and the associated cost savings may help lead to record years in 2021.

Ms. Sharp agreed that the productivity gains have been great but cautioned firms to remember that there are costs that are not on the balance sheet, including particularly big psychic costs.  While working remotely no doubt yielded the benefit of more time with family, things like commute time can be a healthy way to create a boundary between work and home life, especially for parents.  She has been a proponent of increased work from home even before the pandemic, but believes it is too soon to tell how such extensive changes will ultimately pan out.

Ms. Scarlett noted that the workforce appears to have shrunk during the pandemic, as evidenced by the difficulty in lateral recruiting.  She suspects it is working moms who are leaving the legal profession because they do not have the same kind of childcare support that they did pre-COVID and believes this trend will continue if the pandemic goes on.  Ms. Sharp agreed that even before COVID there was an issue with more women than men leaving the profession, and the idea that women should show more grit and stay is particularly problematic during the pandemic, where people are facing truly impossible competing work and home demands.  Ms. Torpey believes that a silver lining of the pandemic has been shining light on the situation of working parents and her firm has been implementing more resources to help parents address the challenges of work-life balance.  Scarlett added that it is the responsibility of the panelists and other members of firm leadership to implement these kinds of systemic changes and Sharp agreed and added that she feels guilt for not implementing such changes sooner.

Ms. Chen asked the panelists to expand upon what these changes look like in practice.  Ms. Scarlett began by identifying a strong work from home culture, but one that respected boundaries between work and life.  She also believes it is important for firms to invest in hardware to empower their attorneys to productively work from home.  Ms. Sharp said it is also important to provide office space tailored to the needs of the firm and, to the extent possible, individual attorneys.  Her firm has been actively soliciting anonymous input on what people want when they do go back to the office and is in the process of very actively evolving in terms of what office space is for each lawyer.  Ms. Torpey cautioned that junior lawyers still need in-person time with access to partners and mentoring, and that her firm has implemented things like partner office hours to make sure those opportunities are available, as well as hosting social events to bring people into the office at the same time.  Sharp indicated that her firm has implemented team days, where you know colleagues with whom you are working on a particular matter will be in the office.  She agreed this is important for junior associates so that they can pop their head into partners’ offices to ask questions and informally build relationships, something that is much more difficult to do remotely.

Lightning Round

Ms. Chen then asked the panelists “lightning round” questions.

Ms. Chen asked which of the following events was most likely during the remainder of the Biden administration: (a) the breakup of a leading technology company, (b) a second criminal no poach prosecution, (c) antitrust division withdrawal from another existing settlement, or (d) an antitrust MDL relating to COVID testing, prevention or treatment.  Ms. Scarlett and Ms. Torpey agreed that a no poach prosecution was most likely.  Ms. Sharp chose a tech company breakup, adding that she believed it would be highly controversial.

Chen asked whether, during the remainder of the Biden administration, the combined antitrust fines imposed by state and federal enforcement agencies in the United States on big tech companies would be more or less than those imposed by the European Commission.  The panelists all agreed that U.S. fines would be less than European fines.

Closing Thoughts

Ms. Chen ended the program by asking the panelists to share some closing thoughts about the pandemic and/or the future of antirust practice.  Ms. Torpey began by explaining that the pandemic had really surprised her, and that looking back on the past year and a half she wishes she had shown greater sensitivity to how hard the pandemic was not only for parents but for younger, single attorneys as well who were dealing with the serious effects of isolation.  Ms. Scarlett wished that she had taken the advice of some of her colleagues to assume that the impacts of COVID would be long lasting and that she had accordingly implemented office policies with a view toward long term sustainability during the pandemic. 

Ms. Sharp turned to the future of antitrust law and predicted a continued renaissance of claims under Section 2 of the Sherman Act.  She believes that Section 2 is well suited to address antitrust issues in tech, that courts will recognize that Section 2 has been construed more tightly than it should be, and that corresponding adjustments in prevailing legal principles will allow the law to address nuanced and cutting-edge antitrust issues.  Ms. Torpey agreed, noting a tension between the narrow rules carved out in district court decisions and the broader, more flexible standards adopted by the Supreme Court in cases like Aspen Skiing.  Sharp added that the European Commission has adopted such flexible standards, which helps explain its greater level of enforcement activity.  Torpey also noted that the broad antitrust legislation currently making its way through the New York legislature would create standards similar to those in Europe and could lead to greater levels of antitrust litigation in that state.

Agency Updates

This feature includes selected press releases from the Antitrust Division, USDOJ, the Federal Trade Commission and the California Attorney General’s Office. It does not include all press releases issued by those offices.  This appears to be a truly transitional time in antitrust enforcement and reading the press releases can be very helpful to stay on top of changes.  Excerpts from select Agency press releases appear below.

Antitrust Division, US Department of Justice

To link to all Antitrust Division, DOJ press releases, click here.

  • Three Amazon Marketplace Sellers Plead Guilty to Price Fixing DVDs and Blu-Rays Discs in Ongoing Investigation
    Friday, January 7, 2022
    A New Jersey man and two New York men pleaded guilty to fixing the prices of DVDs and Blu-Ray Discs sold on the Amazon Marketplace. 

    According to court documents filed in Knoxville, Tennessee, Morris Sutton, Emmanuel Hourizadeh, and Raymond Nouvahian were charged with conspiring with others to fix prices of DVDs and Blu-Ray Discs sold through the Amazon Marketplace. The price-fixing conspiracy each engaged in was ongoing from at least as early as November 2017 and continued until at least Oct. 29, 2019. Sutton, Hourizadeh, and Nouvahian are the second, third and fourth individuals to be charged and to plead guilty in the ongoing investigation. 
  • Antitrust Division Seeks Additional Public Comments on Bank Merger Competitive Analysis
    December 17, 2021
    The Department of Justice’s Antitrust Division announced that it is seeking additional public comments until Feb. 15, 2022, on whether and how the division should revise the 1995 Bank Merger Competitive Review Guidelines (Banking Guidelines). The division will use additional comments to ensure that the Banking Guidelines reflect current economic realities and empirical learning, ensure Americans have choices among financial institutions, and guard against the accumulation of market power. The division’s continued focus on the Banking Guidelines is part of an ongoing effort by the federal agencies responsible for banking regulation and supervision.
  • Six Aerospace Executives and Managers Indicted for Leading Roles in Labor Market Conspiracy that Limited Workers’ Mobility and Career Prospects
    December 17, 2021
    A federal grand jury in Bridgeport, Connecticut, returned an indictment charging a former manager of a major aerospace engineering company and five executives of outsource engineering suppliers (Suppliers) for participating in a long-running conspiracy to restrict the hiring and recruiting of employees among their respective companies. The conspiracy affected thousands of engineers and other skilled workers in the aerospace industry who perform services in the design, manufacturing and servicing of aircraft components for both commercial and military purposes.

    According to the one-count felony indictment unsealed today in the U.S. District Court for the District of Connecticut, six individuals — Mahesh Patel, of Connecticut; Robert Harvey, of South Carolina; Harpreet Wasan, of Connecticut; Steven Houghtaling, of Connecticut; Tom Edwards, of Connecticut; and Gary Prus, of Florida — conspired with unnamed others to allocate employees by agreeing not to hire or solicit employees from each other’s companies.

Federal Trade Commission

  • FTC Sues to Block $40 Billion Semiconductor Chip Merger
    December 2, 2021
    The Federal Trade Commission sued to block U.S. chip supplier Nvidia Corp.’s $40 billion acquisition of U.K. chip design provider Arm Ltd. Semiconductor chips power the computers and technologies that are essential to our modern economy and society. The proposed vertical deal would give one of the largest chip companies control over the computing technology and designs that rival firms rely on to develop their own competing chips. The FTC’s complaint alleges that the combined firm would have the means and incentive to stifle innovative next-generation technologies, including those used to run datacenters and driver-assistance systems in cars. 

California Department of Justice

For a complete list of California AG press releases click here.

  • Attorney General Bonta Appeals Ruling in Facebook Antitrust Lawsuit
    January 14, 2022
    California Attorney General Rob Bonta joined a bipartisan multistate coalition in appealing the dismissal of a lawsuit challenging Facebook’s illegal, anticompetitive behavior. In December 2020, California joined 47 state attorneys general in arguing that Facebook’s acquisition of Instagram and WhatsApp was part of a broad buy-or-bury strategy designed to thwart competition at the expense of both users and advertisers. In their complaint, the coalition alleged that Facebook’s monopolistic behavior violated federal antitrust laws, resulting in less user choice, reduced product quality, and degraded privacy protections.
  • Attorney General Bonta Does Not Object to Disaffiliation of Two Major Health Systems, Expanding Access to Reproductive Healthcare in Orange County
    January 10, 2022
    California Attorney General Rob Bonta today agreed not to object to a settlement between Providence St. Joseph Health (Providence) and Hoag Memorial Hospital Presbyterian (Hoag) that will lead to the disaffiliation of the two hospital systems. The settlement will allow Hoag to become an independent entity, and as part of the agreement, Hoag has committed to expand reproductive health services in Orange County. The Attorney General’s Office was not a party to the settlement. However, the finalization of the settlement was contingent on any objections from the California Department of Justice.

Other News and Notes

  • FTC Has The “Help Wanted” Sign Out
    The FTC is hiring a number of early career attorneys to beef up its enforcement effort in the FTC’s Bureau of Competition.  The FTC calls the hiring “Continuous.”  Complete information about these openings can be found here.
  • FTC May Proceed With Its Antitrust Lawsuit Against Facebook
    Extreme Tech, Adrianna Nine, January 14, 2022
    “A federal judge has ruled that the Federal Trade Commission may move forward with its antitrust lawsuit against Facebook (now referred to as Meta). The ruling, which was delivered by US District Judge James Boasberg, comes about seven months after Boasberg himself dismissed the FTC’s first attempt at a case. The initial iteration of the suit was “legally insufficient,” per the judge’s memo [opinion], and had “failed to plead enough facts” to support its claim.  Boasberg invited the FTC back in June 2021 to refile the complaint once it contained solid factual reinforcement.”
  • Former Bumble Bee Exec Challenges “Per Se’ Rule with Cert Petition
    On December 10, 2021, Former Bumble Bee Foods executive, Christopher Lischewski, who was convicted of conspiring to fix prices of canned tuna under the Sherman Act, petitioned the Supreme Court to overturn his conviction, arguing that the per se rule is unconstitutional.  “The question presented is whether the operation of the per se rule in criminal antitrust cases violates the constitutional principle that every element of an offense must be submitted to a jury and proven beyond a reasonable doubt.”  The case is Christopher D. Lischewski v. United States of America, S.Ct. No. 21-852.
  • Labor Cases Turn Criminal as DOJ Defines New Antitrust Approach
    Valerie Bauman, January 3, 2022, Bloomberg law
    “The increasing use of criminal charges puts executives in industries such as health care, engineering and technology at risk of jail time, and marks a new era in a Justice Department effort that began under President Barack Obama and continued through the Trump administration into President Joe Biden’s.”
  • Chicken Price-Fixing Case Ends in Mistrial After Seven Weeks
    By Bob Van Voris, Bloomberg, December 17, 2021
    “A federal judge in Denver declared a mistrial after jurors failed to reach a verdict in a trial of 10 current and former chicken company executives charged with fixing prices and rigging bids in the massive U.S. poultry market.”

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