August 31, 2010 – 12:10 pm
Update August 2010: The Second Circuit has affirmed this decision.
In RxUSA Wholesale Inc. v. Alcon Laboratories Inc. et al., Eastern District of New York Judge Denis R. Hurley has dismissed a $2.3 billion antitrust lawsuit accusing 16 pharmaceutical manufacturers and a group of drug distributors of conspiring to keep RxUSA Wholesale Inc., a secondary distributor, out of business. The suit accused the manufacturers and their authorized distributors of violating the Sherman Act by refusing to deal with RxUSA, which would purchase medications from authorized distributors and resell them. In dismissing the suit, Judge Hurley found that RxUSA had failed to allege that either the manufacturing defendants or the distributor defendants had monopoly power in the relevant market or show how they had acted in concert with one another.
August 31, 2010 – 10:53 am
Update August 2010: The court granted summary judgment for the racetrack and broadcaster defendants on the ground that they could not question the no broadcast order. The case is still proceeding against the other defendants.
District of Maryland Judge Richard Bennett denied the defendants motion to dismiss in a case filed by a racetrack and off-track betting sight alleging that the defendants conspired to convince out of state racetracks to stop the plaintiff from simulcasting their races. The defendants argued that their actions with respect to simulcasting races were exempt from antitrust scrutiny under the Interstate Horse Racing Act of 1988. The court disagreed and will allow most of the antitrust claims to move forward.
August 27, 2010 – 4:03 pm
E.D. PA Judge Jan Dubois denied defendant Immucor Inc. & Johnson & Johnson subsidiary Ortho-Clinical Diagnostics Inc. motion to dismiss on the ground that the plaintiffs had failed to sufficiently allege an agreement. The judge cited the close timing of the defenants’ price increases for blood reagent; their cancellations of contracts with group purchasers; and their improving profit margins were sufficient to enable a reasonable fact finder to infer a conspiracy.
The court also denied a request to stay discover pending the outcome of a government criminal investigation. It did, however, dismiss Johnson & Johnson Health Care Systems because the amended complaint contained no specific allegations against it.
August 27, 2010 – 3:54 pm
The Sixth Circuit has upheld the dismissal on the pleadings of lacrosse stick manufacturer Warrior Sports’s complaint alleging that the NCAA violated Section 1 of the Sherman Act by agreeing with Warrior’s competitors to adopt a new rule that prohibited the use of all of the stick models currently sold by Warrior. After meeting with Warrior, the NCAA had adopted a rule that would have required a stickhead design urged upon it by Warrior. After learning that Warrior had a patent on this design, the NCAA contacted Warrior and asked about its licensing policies for the patent. When Warrior refused to agree to license the patent, the NCAA adopted a new rule that permitted stick heads that conformed to Warrior’s as well as designs that did not. The court held that by alleging that the rule would permit competition from numerous manufacturers, Warrior confirmed that the rule was not anticompetitive.
August 19, 2010 – 3:30 pm
The United States Department of Justice, Antitrust Division, and the Federal Trade Commission have released new merger guidelines explaining how the enforcement agencies review horizontal mergers. The merger guidelines have existed in various forms since 1968. The last major revision was in the mid-1990s. The agencies announced last fall that they were planning to revise the guidelines. A series of workshops followed at which input was sought from the bar and the public. Draft guidelines were released for comment last spring. These guidelines constitute a substantial departure from previous guidelines, particularly with respect to the reduced role of market definition. The guidelines can be accessed on the Antitrust Division’s website and by clicking here.
August 19, 2010 – 2:20 pm
The Third Circuit dismissed a major portion of the Insurance Brokers’ Antitrust Litigationon the ground that the complaint fails to adequately allege an a horizontal agreement among insurers. Although the plaintiffs alleged agreements between particular insurers and brokers, the insurers had sufficient incentive to enter those vertical agreements even if the insurers had not agreed among themselves. The court recognized that the insurer/broker agreements might themselves violate the law, but noted that the complaint did not challenge them. The court did hold that the plaintiffs had adequately alleged an agreement among the insurers that dealt with the broker Marsh & McLennan.
August 19, 2010 – 1:52 pm
A New York state appellate court has held that the state may challenge on antitrust grounds alleged collusion between First America Corp. and Washington Mutual. The defendants had argued that the state challenge was preempted by federal regulation. The court held that the regulation does not extend to collusion relating to appraisals.
August 19, 2010 – 1:47 pm
The Ninth Circuit affirmed the dismissal of the California Tourism Board from a suit alleging anticompetitive agreements by rental car companies to set ancillary fees. Plaintiffs alleged that after a new law placed an assessment on rental car companies to help fund the tourism board, the state board conspired with the rental car companies to design ancillary fees to enable the companies to recover the assessment from their customers. The Ninth Circuit held that the state action doctrine exempted the tourism board from antitrust scrutiny for the conduct alleged.
August 19, 2010 – 1:14 pm
S.D. Miss. Judge Halil Ozeren dismissed a complaint by a hotel associate alleging that golf courses violated the antitrust laws by offering lower voucher prices to a golfers’ association than to the hotels. The court held that the complaint failed to adequately allege an effect on interstate commerce as required by the federal antitrust laws. The court deemed the plaintiff’s reference to the use of out-of-state credit cards in a reply brief inadequate to meet its burden.
August 19, 2010 – 1:06 pm
District of Ohio Judge George Smith dismissed an antitrust case against the American Mastiff Breeders Council by a former member. The plaintiff alleged that the council violated the antitrust laws by setting capping the price that could be charged for puppies and by excluding the plaintiff from the organization. The court held that the plaintiff lacked antitrust standing to challenge the price cap because a competitor’s inability to charge more — in the court’s view — was not antitrust injury. With respect to the boycott, the court held that the plaintiff failed to allege a relevant market in which the defendant had market power. A mastiff only market, the court held, was implausible because other breeds of dogs could perform the same functions.