Antitrust and Unfair Competition Law Section

On April 8, 2022, in an en banc decision, the Ninth Circuit affirmed the certification of classes of direct purchasers in the canned tuna antitrust litigation, effectively rejecting the argument that a class cannot be certified with more than a de minimis number of uninjured class members. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, No. 19-56514 (9th Cir. Apr. 8, 2022)(en banc). The Ninth Circuit’s en banc opinion follows an earlier panel decision, which had vacated the district court’s class certification orders. Read more

In In re Zetia Ezetimibe Antitrust Litig., 2022 U.S. Dist. LEXIS 69566 (E.D. Va. 2022), the Eastern District of Virginia followed guidance from the Fourth Circuit on remand and denied a class of 35 Direct Purchaser Plaintiffs’ (“DPPs”) renewed motion for class certification on the sole issue of numerosity. The court’s analysis here highlights the various, challenging hurdles 20-40 person proposed classes face during class certification. With the rise of the Direct Action Plaintiffs in recent years, small classes with big claimants are likely going to be even harder to certify as increasing numbers of potential class members opt out. Read more

Welcome to the April E-briefs, News and Notes.  We have 7 E-Briefs covering a variety of subjects.  The Agency Update section includes links to numerous DOJ/FTC press releases reflecting the aggressive posture of the Biden Administration on competition policy. Read more

Join us on May 5 in San Francisco for the Golden State Antitrust and Unfair Competition Law Institute. Read more

Welcome to the March 2022 E-briefs, News and Notes. This edition includes E-Briefs, authored by Thomas H. Burt and Betsy C. Manifold, Kerry C. Klein, Anthony Léon and Sean Kolkey. Read more

This is the 2022 Antitrust Lawyer of the Year Nomination Form. Read more

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. Read more

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. Read more

A class of retailers who do not accept American Express cards sued for damages as “umbrella” plaintiffs--retailers who alleged they had their own swipe fees increased because their credit card vendors followed Amex’s lead. The Second Circuit dismissed the suit holding that the non-Amex retailers were not efficient enforcers of the antitrust laws and therefore lacked antitrust standing. In re American Express Anti-Steering Rules Antitrust Litigation, Case No., 20-1766 (2d Cir. November 22, 2021) (hereinafter “Amex Anti-Steering Lit.”). Read more

On November 18, 2021, United States District Judge Jeffrey S. White dismissed most anticompetition claims brought against Uber Technologies, Inc. by San Francisco’s oldest cab company Desoto, recently renamed as Flywheel. Desoto Cab Company, Inc. v. Uber Technologies, Inc., et al., Case 4:16-cv-06385-JSW (N.D. Cal. November 18, 2021) Read more