Antitrust in the News

On March 29, 2019, Judge Morrison England of the Eastern District of California denied a Rule 12(b)(6) motion to dismiss filed by defendants Wal-Mart Stores, Inc. (“Walmart”) and American International Industries, Inc. (“AI”) (collectively, “Defendants”) in Stiles v. Wal-Mart Stores, Inc., et al., No. 2:14-cv-02234-MCE-DMC, 2019 WL 1429651 (E.D. Cal. Mar. 29, 2019). Defendants argued that Plaintiff Sharidan Stiles (“Plaintiff” or “Stiles”)—the inventor, patent-holder, and manufacturer of a disposable beauty styling razor alleged to have been sold at Walmart’s stores from 2006 to 2012 (the “Stiles Razor”)—failed to sufficiently allege claims under Section 1 of the Sherman Act and the Cartwright Act. Read more

Plaintiff Orion Telescopes & Binoculars [Orion] designs beginner to intermediate market telescopes, contracts with a manufacturer to build them and then sells them. Two manufacturers dominate the supply for telescopes in the United States. Defendant Ningbo Sunny Elect Co. Ltd. [Ningbo] is a telescope manufacturer that also owns its own distributors. Orion sued Ningbo under both Sections 1 and 2 of the Sherman Act for conspiring with the other principal manufacturer [Settling Defendant] to fix prices and monopolize the market for telescopes. Read more

In an effort to strengthen existing consumer privacy laws and address privacy concerns stemming from new technology, California lawmakers proposed “Your Data, Your Way.” This package of legislation seeks to empower consumers with the ability to better control their digital footprint and know its worth. Read more

On April 9, 2019, the California Senate Standing Committee on Judiciary voted 5-3 in support of advancing SB 561 out of their committee. SB 561 would expand the private right of action under the California Consumer Protection Act (“CCPA”) beyond damages for data breaches, remove the 30-day cure period for Attorney General (“AG”) enforcement actions, and remove the AG obligation to provide compliance opinions. The bill now moves to the Senate Standing Committee on Appropriations. Read more

In late February 2019, Attorney General Xavier Becerra and several state legislators proposed substantial amendments to the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), that, if adopted, would expand the scope of the private right of action under the Act and scale back procedural safeguards enacted in the original statute that would have potentially shielded companies from greater liability. Read more

On March 29, 2019 the Federal Trade Commission (“FTC” or “Commission”) announced its Opinion and Final Order against generic pharmaceutical manufacturer Impax Laboratories LLC (“Impax”). The Commission ruled that Impax engaged in an illegal pay-for-delay, or “reverse payment” settlement to delay the sale of a generic version of Endo Pharmaceuticals, Inc. (“Endo”)’s branded extended-release opioid pain reliever, Opana ER. The Opinion reverses the May 18, 2018 Initial Decision in which the Chief Administrative Law Judge dismissed all antitrust charges against Impax after an administrative trial. Read more

The United States District Court for the District of Utah granted the United States’ Motion to Reconsider and found the per se rule applies to the horizontal customer agreement alleged in the indictment of heir location service providers Kemp & Associates and its Chief Operating Officer, Daniel J. Mannix. The indictment alleges that the conspirators agreed to suppress and eliminate competition between them on estates they both pursued. Read more

Unfair competition law got anatomical in the Northern District of California with Becton, Dickinson & Co. v. Cytek Biosciences Inc., No. 18-cv-009933-MMC, 2019 WL 633008 (N.D. Cal. Feb. 14, 2019), a case involving two producers of flow cytometry products. Flow cytometry—“powerful, laser-based technology used for identifying and quantifying cellular characteristics on a cell-by-cell basis” (id. at *1 & n.3)—can be used in the diagnosis of blood diseases like leukemia. Read more

On January 28, 2019, Judge William H. Alsup of the Northern District of California dismissed a claim under Section 2 of the Sherman Act brought against Google by stock photography website Dreamstime. Dreamstime.com, LLC v. Google, LLC, No. C 18-01910 WHA, 2019 WL 341579, at *1 (N.D. Cal. Jan. 28, 2019). Dreamstime’s antitrust claim alleged that Google engaged in various predatory and exclusionary acts, directed at harming Dreamstime, in order to maintain Google’s monopoly position in the relevant market of online search advertising. Read more

On November 28, 2018, Judge Marco A. Hernandez of the District of Oregon denied The Common Application, Inc.’s (“the Common App”) motions to dismiss and transfer the antitrust suit against it to the Eastern District of Virginia. CollegeNET, Inc. v. Common Application, Inc. (CollegeNET II), No. 3:14-CV-00771-HZ, 2018 WL 6251366, at *1 (D. Or. Nov. 28, 2018). Judge Hernandez’s decision, on remand from the Ninth Circuit, reversed his previous dismissal of CollegeNET’s complaint for failure to plead facts sufficient to allege antitrust injury. CollegeNET, Inc. v. Common Application, Inc. (CollegeNET I), 104 F. Supp. 3d 1137, 1150 (D. Or. 2015), rev’d and remanded, 711 F. App’x 405 (9th Cir. 2017). Read more