Antitrust in the News

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

Harrison (Buzz) FrahnWyatt HonseRaul Duran Simpson Thacher & Bartlett LLP On November 7, 2018, the Federal Trade Commission (the “Commission”) affirmed an Administrative Law Judge’s (“ALJ”) ruling that agreements between online retailers barring them from using each other’s trademarks as keywords in paid search engine advertising algorithms violated Section 5 of the Federal Trade Commission Act (“FTC Act”). In the Matter of 1-800 Contacts, Inc., F.T.C. No. 9372 (November 7, 2018) (the “Commission Opinion”). The decision ends, at least at… Read more

After nearly two years of investigation and litigation, the Federal Trade Commission (“FTC”) blocked the $1.7 billion merger between Tronox Limited (“Tronox”) and National Titanium Dioxide Company Limited (“Cristal”) in late December 2018. The Administrative Court of the FTC ruled in favor of Commission staff, finding that “the planned Acquisition may substantially lessen competition in the relevant market for the sale of chloride TiO2 in North American in violation of Section 7 of the Clayton Act and Section 5 of the FTC Act.” Despite changes in Commission leadership since the start of the investigation, the traditional nature of the markets and historically coordinated market dynamics suggest that the decision will be upheld during de novo review by the Commission. Read more

Finding the lower court’s approach to predominance “at odds with both Supreme Court precedent and the law of our circuit,” the First Circuit recently reversed the grant of class certification in a Sherman Act Section 2 case against Warner Chilcott Limited, the manufacturer of two similar drugs: Asacol and Delzicol. In re Asacol Antitrust Litig., 907 F.3d 42, 45 (1st Cir. 2018). Framing the issue as whether “a class [can] be certified … even though injury-in-fact will be an individual issue, the resolution of which will vary among class members,” the First Circuit analyzed its sister circuits’ jurisprudence on the much-litigated issue and found a general consensus, but identified the Ninth Circuit as an outlier Read more

On December 7, 2018, the 7th Circuit affirmed an order granting summary judgment for two oligopolist-manufacturers accused of price-fixing in violation of the Sherman Act. The court observed at the outset that oligopolies pose particular “problems” for antitrust law, because firms in oligopolistic markets lack sufficient power to face Sherman Act § 2 scrutiny, and they can tacitly collude to raise prices – that is, without an actual agreement – enabling them to earn supracompetitive profits. Read more

Harrison (Buzz) Frahn, Michael R. Morey, Wyatt A. Honse Simpson Thatcher & Bartlett LLP On March 28, 2018, the U.S. District Court for the Northern District of California partially granted and denied cross-motions for summary judgment in In re: NCAA Grant-in-Aid Cap Antitrust Litigation, No. 4:14-md-02541-CW, 2018 WL 1524005 (N.D. Cal. Mar. 28, 2018) (the “Grant-in-Aid Litigation”).The Grant-in-Aid Litigation is a multidistrict class action antitrust suit brought by current and former Division I student-athletes against the NCAA and eleven of its member conferences for… Read more

On August 23, 2018, the California Court of Appeal, First District, affirmed the Superior Court of San Francisco City and County’s holding that the State Bar of California was not required to disclose individual-level data for applicants to the State Bar in response to several California Public Records Act (“CPRA”) requests seeking such data. Sander v. Superior Court, 237 Cal. Rptr. 3d 276 (Cal. Ct. App. 2018) (hereafter, the “Appellate Opinion”). Read more