Antitrust and Consumer Protection Section

In July 2018, Plaintiffs Wi-LAN Inc., Wi-LAN USA, Inc., and Wi-LAN Labs, Inc., (collectively, “Wi-LAN”) brought a patent infringement action against Defendants LG Electronics, Inc., LG Electronics U.S.A., Inc., and LG Electronics Mobilecomm U.S.A., Inc., (collectively, “LG”) alleging that LG’s wireless communications products that are compliant with the 3rd Generation Partnership Project 4G LTE standard (3GPP LTE) directly infringed four of Wi-LAN’s patents. Wi-Lan Inc., et al. v. LG Elecs., Inc., et al., --- F. Supp. 3d ----, No. 18-cv-01577-H-BGS, 2019 WL 1586761, at *1 (S.D. Cal. Apr. 12, 2019). Wi-Lan was once a company that engaged in research and development of various wireless technologies but now primarily focuses on licensing patent portfolios owned by others. LG, in response, asserted various counterclaims relating to the unenforceability of Wi-LAN’s purported standard-essential patents and, particularly, claims for (1) monopolization and attempted monopolization in violation of Section 2 of the Sherman Act, 15 U.S.C. §2; (2) unfair business practices under Section 17200 of the California Business and Profession Code, Cal. Bus. & Prof. § 17200; and (3) declaratory judgment of unenforceability of U.S. Patent No. 8,867,351 (“the ’351 patent”) under a theory of infectious unenforceability. Read more

On March 8, 2019, the U.S. District Court for the Northern District of California ruled in favor of a class of current and former NCAA Division I basketball and FBS football players who brought a multidistrict class action antitrust suit against the NCAA and eleven of its member conferences challenging the NCAA’s rules capping the amount of compensation that student-athletes can receive in exchange for their athletic services. In re NCAA Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1062 (N.D. Cal. 2019) (the “Grant-in-Aid Litigation”). Read more

On May 6, 2019, the San Francisco Board of Supervisors voted 8-1 to pass the “Stop Secret Surveillance” Ordinance severely limiting facial recognition technology by the San Francisco Police department and other City government agencies. The Ordinance is the first of its type in the United States and is expected to go into effect 30 days after its passing. Read more

On May 16, 2019, the California Senate Appropriations Committee held a hearing that included S.B. 561, the “Attorney General amendment” to the California Consumer Privacy Act (“CCPA”). The bill is being held in committee and under submission, which means the bill has been blocked and is likely dead. Read more

On April 22, 2019, the United States District Court for the Northern District of California granted a motion by Defendants VIP Petcare Holdings, Inc. (VIP) and PetIQ, Inc. (PetIQ) to dismiss with prejudice an amended complaint by Plaintiffs Med Vets Inc. (“Med Vets”) and Bay Medical Solutions Inc. (“Bay Medical”), which alleged unlawful merger and other antitrust violations, finding that Plaintiffs failed to allege a relevant market and market power in such a market. Med Vets, Inc. v. Vip Petcare Holdings, Inc., No. 18-cv-02054-MMC, 2019 U.S. Dist. LEXIS 68099 (N.D. Cal. Apr. 22, 2019). United States District Judge Maxine M. Chesney issued the decision. Read more

Employers and business owners breathed a collective sigh of relief on April 24, 2019, when the United States Supreme Court issued its highly anticipated ruling in Lamps Plus, Inc. v. Varela, No. 17-988, ___ U.S. ___, 139 S. Ct. 1407 (2019), and held, in a 5-to-4 decision, that under the Federal Arbitration Act (FAA), an ambiguous agreement cannot provide the basis for concluding that the parties agreed to submit to class arbitration. The Varela opinion reaffirms the Court’s decision in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010), which held that a court may not compel class arbitration when an agreement is silent on the availability of such proceedings. Read more

The United States Supreme Court held that consumers have standing to pursue a putative antitrust class action against Apple for monopolization. In Apple Inc. v. Pepper, et al., Case No. 17-204 (May 13, 2019), the Court ruled 5-4 that the consumer plaintiffs were not barred by the “indirect purchaser rule” that generally limits standing in federal antitrust cases for damages to direct purchaser plaintiffs only. Read more

On March 29, 2019, Judge Morrison England of the Eastern District of California denied a Rule 12(b)(6) motion to dismiss filed by defendants Wal-Mart Stores, Inc. (“Walmart”) and American International Industries, Inc. (“AI”) (collectively, “Defendants”) in Stiles v. Wal-Mart Stores, Inc., et al., No. 2:14-cv-02234-MCE-DMC, 2019 WL 1429651 (E.D. Cal. Mar. 29, 2019). Defendants argued that Plaintiff Sharidan Stiles (“Plaintiff” or “Stiles”)—the inventor, patent-holder, and manufacturer of a disposable beauty styling razor alleged to have been sold at Walmart’s stores from 2006 to 2012 (the “Stiles Razor”)—failed to sufficiently allege claims under Section 1 of the Sherman Act and the Cartwright Act. Read more

Plaintiff Orion Telescopes & Binoculars [Orion] designs beginner to intermediate market telescopes, contracts with a manufacturer to build them and then sells them. Two manufacturers dominate the supply for telescopes in the United States. Defendant Ningbo Sunny Elect Co. Ltd. [Ningbo] is a telescope manufacturer that also owns its own distributors. Orion sued Ningbo under both Sections 1 and 2 of the Sherman Act for conspiring with the other principal manufacturer [Settling Defendant] to fix prices and monopolize the market for telescopes. Read more

In an effort to strengthen existing consumer privacy laws and address privacy concerns stemming from new technology, California lawmakers proposed “Your Data, Your Way.” This package of legislation seeks to empower consumers with the ability to better control their digital footprint and know its worth. Read more