Antitrust and Consumer Protection Section

Thank you for reading this month’s edition of E-briefs, News and Notes by the Antitrust and Consumer Protection Section of the California Lawyers Association. You will notice that we have added “News and Notes” to the title and included several new features. We hope the new information is helpful. We welcome any feedback on how to make the publication more useful. Read more

The Inclusion & Diversity Fellowship program is a joint program managed by the California Lawyers Foundation and the California Lawyers Association Antitrust and Consumer Protection Section. The Foundation and the Antitrust Section are dedicated to increasing the participation and visibility of diverse and underrepresented lawyers in the practice of antitrust law. The goal of the fellowship is to provide career opportunities for students from underrepresented groups in the legal profession, increase interest in Antitrust and Consumer Protection Section law, and promote the work of the Section. Read more

This edition of the Antitrust and Consumer Protection Section of the California Lawyers Association’s E-Briefs includes a recap of the 30th Annual Golden State Institute which was held as a virtual conference on October 27-29, 2020. The program co-chairs were Elizabeth Castillo, (Cotchett, Pitre & McCarthy) and Rob McNary, (Crowell & Moring). The program had 6 panels and two networking sessions and was attended by over 300 attorneys, law students and economists. Read more

Ready, Set, Action. The latest episode of the Flagship antitrust saga has been released this month! A three-judge panel of the California Court of Appeal, Second District in Los Angeles, reversed the $3.5 million judgment awarded to Flagship Theatres of Palm Desert, LLC (Flagship) against Cinemark USA, Inc. and its subsidiary Century Theatres, Inc. (collectively, Century). (Flagship Theatres of Palm Desert LLC v. Century Theatres Inc. et al. (2020), case B292609 and B299014 (Flagship)) Read more

When selecting lead class counsel in complex class action cases, Rule 23(g)(1)(A) of the Fed Rules of Civ. P. states that the court must consider, among other factors, “counsel’s experience in handling class actions,” “knowledge of applicable law” and ”the resources that counsel will commit to representing the class.” Read more

On July 30, 2020, Magistrate Judge Laurel Beeler of the Northern District of California certified a class of indirect purchasers seeking damages for Sutter Health’s alleged violations of the Sherman Antitrust Act, the Cartwright Act, and the California Unfair Competition Law. Sidibe v. Sutter Health, No. 12-cv-04854-LB, 2020 WL 4368221 (N.D. Cal. Jul. 30, 2020) (“Sidibe II”). Read more

The recent decision out of the Northern District of California in Epic Games, Inc. v. Apple Inc., Case No. 20-cv-5640, 2020 U.S. Dist. LEXIS 154321 (N.D. Cal. Aug. 24, 2020), sheds light on the standard for granting preliminary injunctive relief in antitrust cases. In an August 24, 2020 order, Judge Yvonne Gonzalez Rogers granted in part and denied in part Epic Games, Inc.’s (“Epic”) motion for a temporary restraining order against Apple Inc. (“Apple”). Read more

As many anticipated, the Ninth Circuit reversed Judge Koh’s ruling that Qualcomm, Inc. had an antitrust duty to deal with its rival chip makers. The panel criticized Judge Koh for focusing on harm to downstream original equipment manufacturer (OEM) customers rather than on actual anticompetitive effects in the purportedly restrained chip market and rejected Judge Koh’s reliance on the smallest saleable unit test underlying her conclusion that Qualcomm’s royalty rates were unreasonably high. Read more

This Supreme Court of California case addressed the legal standards that applied when Biogen, Inc. (Biogen) settled a patent dispute with Ixchel related to the use of a compound (DMF) dimethyl fumerate that required Ixchel to terminate an at-will contract it had with Forward Pharma (Forward) under which Ixchel Pharma (Ixchel) and Forward were working together to develop a drug using DMF. Read more

Final regulations to implement the California Consumer Privacy Act were released on August 14, 2020, and are now enforceable. The regulations cleared their final regulatory hurdle – review and approval by the California Office of Administrative Law (OAL) – more than two years after the law originally passed and after several rounds of changes to proposed regulations. The latest round of regulatory changes were made on July 29th, during the midst of the OAL review, but were made public only after the regulations were approved by OAL. Read more