Antitrust in the News

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

Small automotive paint distributor Nicolosi Distributing, Inc. (“Plaintiff” or “Nicolosi”) sued competitor FinishMaster, Inc., a large automotive paint supplier based in Indiana, and its Canadian parent, Uni-Select, Inc. (collectively, “Defendants”), for anticompetitive conduct arising from FinishMaster’s alleged used of exclusive dealing contracts and acquisition of smaller distributors. Read more

The California Consumer Privacy Act of 2018 (“CCPA”), California’s new privacy law which takes effect on January 1, 2020, requires the Attorney General to adopt implementing regulations that further the objectives of the CCPA. The California Lawyers Association has scheduled a number of events and webinars focused on this new law, including a webinar hosted by the Privacy Subcommittee on March 26. Read more

Contemporary artist Robert Cenedella alleged that five leading New York City museums (the Metropolitan Museum of Art, the Whitney Museum of American Art, the Museum of Modern Art, the Solomon R. Guggenheim Foundation, and the New Museum of Contemporary Art) violated the Sherman Act and New York’s Donnelly Act by conspiring to shut him out of New York City’s contemporary art market.Cenedella v. Metropolitan Museum of Art, 2018 WL 6629408 (S.D.N.Y Dec. 19, 2018). Judge John G. Koeltl of the Southern District of New York dismissed Cenedella’s claims without prejudice. Read more

In Sonner v. Schwabe North America, Inc., __ F.3d. ___, 2018 WL 6786616 (9th Cir. Dec. 26, 2018) the Ninth Circuit reversed a grant of summary judgment in favor of sellers of two nutritional supplements in a consumer class action alleging false advertising claims under California's Unfair Competition Law ("UCL"), and the Consumers Legal Remedies Act ("CLRA"). The Court “clarif[ied] that UCL and CLRA claims are to be analyzed in the same manner as any other claim, and the usual summary judgment rules apply.” Read more