The Fifth Circuit has rejected a class challenge to AT&T exclusive dealing agreements with buildings to provide a so-called Triple Play of telephone, internet, and television services. The court rejected the claim on the ground that the plaintiffs allegation that a single apartment building could constitute a relevant geographic market was too narrow. Although plaintiffs living in the affected building had no choice of service, the court held that sufficient competition exists to prohibit a finding that a single building could be economically significant. Buildings compete for tenants and communications service providers compete to serve buildings. “[G]iven the highly mobile nature of today’s society,” the Court held, sufficient competition exists in a broader market to protect consumer interests.

In a multi-district consolidation, Judge Thrash, Northern District of Georgia, ruled that reverse payment settlements between Solvay Pharmaceuticals and generic drug makers involving the testosterone supplement AndroGel were legal. The Federal Trade Commission and private plaintiffs had alleged that the settlements were anticompetitive because they constituted payments in exchange for keeping generic competition off the market until 2015. The court held otherwise on the ground that because the settlement did not extend Solvay’s patent beyond its 2020 expiration, they could not be anticompetitive.

Despite the setback, the FTC has vowed to continue to challenge reverse payments.

The court did permit a sham litigation challenge to continue. That claim, by direct purchasers of the drug, argued that Solvay filed objectively baseless patent infringement suits to slow the entry of competitors. The plaintiffs argued that the litigation was objectively baseless because of a mistake in a Solvay patent, which Solvay admits. Whether the suits were in fact baseless remains to be determined.

The Department of Justice agreed not to challenge the Ticketmaster/Live Nation merger upon the condition that Ticketmaster would license ticketing software to AEG, enabling that company to offer a competitive ticketing alternative and provides the incentive for it to compete in promotion and venue management.  The merged entity is also required to divest the ticketing business Paciolan, Inc. to Comcast-Spectacor (or another company).  The agreement also prohibits the merged entity from retaliating against any venue that uses another company’s ticketing or promotion services, and it requires them to permit any customer that takes its ticketing business to a competitor to access its own ticketing data.  The merged entity must also set up a firewall, preventing it from using any information garnered in the ticketing business for its promotion business.  Assistant Attorney General for the Antitrust Division Christine Varney commented that Ticketmaster is required to divest more ticketing than it gained through he merger.

In Carpenter Co. et al. v. BASF SE et al.; and Woodbridge Foam Corp. et al. v. BASF SE et al., Kansas District Court Judge John W. Lungstrum has allowed chemical companies that opted out of a class certification in a larger class action to proceed with their own two putative class actions accusing BASF SE, the Dow Chemical Co. and Huntsman International LLC of price-fixing in the urethane market. However the court rejected plaintiffs’ claims based on European law, due to on lack of subject matter jurisdiction, and against two BASF executives, due to the running of the statute of limitations. The court did allow plaintiffs to maintain 1) their conspiracy actions, stating that plaintiffs only had to allege enough facts to support a plausible claim of the existence of a conspiracy that does not merely rest on purely conclusional allegations, which plaintiffs did; and 2) their fraudulent concealment allegations, stating that plaintiffs have sufficiently alleged that defendants affirmatively acted to make sure that their meetings and communications were not discovered and their agreements remained concealed.

In Pierson v. Walmart.com USA et al.; and Levy et al. v. Walmart.com USA LLC et al., Northern District of California Judge Phyllis J. Hamilton has agreed to allow Blockbuster Inc. customers who accused Wal-Mart Stores Inc. and Netflix Inc. of colluding in the market for online DVD rentals to amend their complaint based on facts obtained through discovery after oral argument on the defendants’ motion to dismiss. The plaintiffs said that they could allege new facts that would provide the missing causal link between an alleged agreement between Wal-Mart and Netflix not to compete in the market for on-line DVD rentals and Blockbuster’s decision to raise its prices. Judge Hamilton said in her order that while she was not convinced the plaintiffs’ additional allegations would withstand scrutiny, there was “at minimum a possibility” that the plaintiffs could amend the complaint in a way that would overcome its previous deficiencies.