Case Updates

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

The U.S. Court of Appeals for the Ninth Circuit held that the value of a debtor’s homestead exemption is fixed at the date of the filing of the bankruptcy petition, regardless if the debtor was claiming federal or state law exemptions. Wilson v. Rigby (In re Wilson), 909 F.3d 306 (9th Cir. 2018). The Ninth Circuit affirmed rulings by the United States District Court and Bankruptcy Court for the District of Washington, both holding that the debtor’s exemption was limited to the amount she is entitled to under Washington state law as of the petition date. Read more

Summary: A Georgia appellate court has held that a recourse provision contained in a nonrecourse loan and guarantee agreement was not triggered by the lender's petition for an involuntary receivership, despite the guarantor's consent to the petition. [Bowers vs. Today’s Bank, 2018 Westlaw 4998236 (Ga. App.).] Read more

Summary: A bankruptcy court in Delaware has held that a broadly-worded release contained in a confirmed Chapter 11 plan insulated a group of LBO participants from fraudulent transfer liability, since the potential defendants were not expressly carved out from the scope of the release. [In re Samson Resources Corp., 2018 Westlaw 4182447 (Bankr. D. Del.).] Read more

M obtains decree in Belarus finding the residence of child is Belarus, where M resides. F, unaware of Belarus action or decree, files custody petition in CA.M successfully moves to quash service of California action under FC 3426(a), the “simultaneous proceedings” statute. Read more

Summary: A bankruptcy court in Washington has held that after a creditor assisted a bankruptcy trustee's prosecution of a fraudulent transfer claim against a bank, the creditor was entitled to seek an award of administrative expenses for its "substantial contributions" to the Chapter 7 estate. [In re Maust Transport, Inc., 2018 Westlaw 4488712 (Bankr. W.D. Wash.).] Read more