Case Updates

Summary: In Hunsaker v. United States, 902 F.3d 963 (9th Cir. 2018), the United States Court of Appeals for the Ninth Circuit held that the sovereign immunity waiver of 11 U.S.C. § 106 does not preclude liability for emotional distress damages in connection with a willful violation of the automatic stay by the IRS. Read more

New labor and employment cases featured in the Labor and Employment eNews. Fresno Superior Court v. PERB (CA5 F075363 12/14/18) PERB Authority/Court Personnel Rules. Upholding broad restrictions on employee clothing, ban on solicitation during working hours and ban on displaying images in areas visible to the public, but finding regulations prohibiting distribution of literature in working areas were ambiguous. Read more

Contemporary artist Robert Cenedella alleged that five leading New York City museums (the Metropolitan Museum of Art, the Whitney Museum of American Art, the Museum of Modern Art, the Solomon R. Guggenheim Foundation, and the New Museum of Contemporary Art) violated the Sherman Act and New York’s Donnelly Act by conspiring to shut him out of New York City’s contemporary art market.Cenedella v. Metropolitan Museum of Art, 2018 WL 6629408 (S.D.N.Y Dec. 19, 2018). Judge John G. Koeltl of the Southern District of New York dismissed Cenedella’s claims without prejudice. Read more

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