Antitrust in the News

Ian L. PapendickKevin B. GoldsteinDana L. Cook-MilliganWinston & 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… Read more

Mark F. RamCotchett, Pitre & McCarthy, LLP The EpiPen®[1] is a disposable epinephrine auto-injector (“EAI”) that delivers epinephrine to treat anaphylaxis, a life-threatening allergic reaction[2]. 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… Read more

Harrison (Buzz) FrahnAndy HastyEric MillsSimpson 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… Read more

Matthew S. WeilerBleichmar 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… Read more

David M. GoldsteinFarmer 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). Plaintiffs filed separate class actions alleging that LG and Samsung entered into no poach agreements in Korea that affected the practices of their U.S.… Read more

Bethany CaracuzzoPritzker 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… Read more

Harrison (Buzz) Frahn, Jennifer S. Palmer, Tomi MendelSimpson Thacher & Bartlett LLP In a July 27, 2018 decision, the Ninth Circuit affirmed a ruling rejecting the Sherman Act claims of a group of golf caddies (“Caddies”) who challenged the PGA Tour’s requirement that they wear bibs containing various advertisements during tournaments. Hicks v. PGA Tour, Inc., 2018 WL 3597316 (9th Cir. July 27, 2018). Although bib-wearing has been a long-standing practice in the golf profession, the Caddies argued that the requirement… Read more

Elizabeth T. CastilloCotchett Pitre & McCarthy LLP On August 7, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Northern District of California’s dismissal of a complaint alleging that the United States Olympics Committee (Olympic Committee) and USA Track & Field (USATF) engaged in an anticompetitive conspiracy in violation of Section 1 of the Sherman Act by imposing advertising and logo restrictions during Olympic Trials of track and field athletes. Reviewing the… Read more

Ian L. Papendick and Dana L. Cook-MilliganWinston & Strawn LLP In Sea Breeze Salt, Inc. v. Mitsubishi Corporation, --- F,3d ----, 2018 WL 3863842 (9th Cir. 2018), the Ninth Circuit affirmed the order of Judge Dolly Gee of the United States District Court for the Central District of California, holding that the act of state doctrine applied to bar antitrust conspiracy claims relating to exclusive distribution contracts concerning Mexican sea salt. The Ninth Circuit held that because defendant ESSA was 51%… Read more

Lesley E. Weaver and Emily C. AldridgeBleichmar Fonti & Auld LLP A recent decision by the Ninth Circuit may have profound implications in antitrust cases involving wholly owned subsidiaries of parent companies accused of participating in an antitrust conspiracy. In Arandell v. CenterPoint Energy Services, -- F.3d ----, No. 16-17099, 2018 WL 3716026 (9th Cir. Aug. 6, 2018) [Arandell], the Ninth Circuit held that under Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), a “wholly-owned subsidiary that engaged in coordinated… Read more