The Ninth Circuit recently dismissed a Section 2 claim against the social networking site Myspace. The plaintiff, LiveUniverse Inc., alleged that Myspace violated Section 2 by disabling links to other social networking sites. Although the court agreed that Myspace had market power, its conduct was not deemed to be exclusionary. LiveUniverse argued the Myspace’s practice reduced consumer choice and reduce the quality of the social networking experience. The appellate court held that the practice did not improperly reduce competition in the social networking market.
Court Certifies Class in Heart Drug Patent Case
January 4, 2009 – 1:13 pm
Judge Joseph Greenaway, US District Court for the District of New Jersey, in In re: K-Dur Antitrust Litigation has certified a class of direct purchasers of the Schering-Plough drug K-Dur 20. The case alleges that Schering improperly delayed the introduction of a generic version of the drug by making settlement payments to competitors that had filed abbrevieated new drug applications. The FTC’s challenged to the settlements was previously rejected by the 11th Circuit.
Court Approves Settlement of DNA Patent Class Action
January 4, 2009 – 1:04 pm
Judge Henry Kennedy of the US District Court for the District of Columbia approved a $33 million settlement between Hoffmann-LaRoche and a class of plaintiffs that used DNA identification technology. The case alleged that LaRoche had obtained the relevant patent through fraud on the patent office.
EC Raids Pharmaceutical Companies
December 30, 2008 – 2:04 pm
The European Commission has reportedly raided the offices of pharmaceutical companies suspected of breaching EU competition rules by operating a cartel or abusing market position. Without identifying the companies, the Commission said only that the inspections had taken place in “several” EU Member States. The raids took place ahead of the publication of a 400-page Commission report on the EU pharmaceutical sector launched in January 2008. On November 28, 2008, the EC published its preliminary report, finding evidence that companies had engaged in practices with the objective of delaying or blocking market entry of competing medicines. Practices by generic companies include multiple patent applications for the same medicine, initiation of disputes and litigation, conclusion of patent settlements which constrain market entry of generic companies and interventions before national authorities when generic companies ask for regulatory approvals. The Commission said that where successful, these practices result in significant additional costs for public health budgets – and ultimately taxpayers and patients – and reduce incentives to innovate.
EU Power Transformer Investigation
December 11, 2008 – 12:04 pm
US Supreme Court Denies Cert, Upholding Decision that Tennis Tournament Restructuring Was Not Anticompetitive
December 2, 2008 – 1:14 am
Update December 2010: The U.S. Supreme Court declined to grant a writ of certiorari.
Update June 2010: The Third Circuit has affirmed the juries decision in favor of the defendant on the ground that the plaintiffs failed to prove a relevant market.
In a Delaware U.S. District Court case, the jury found for the defendant in Deutscher Tennis Bund, et al. v. ATP Tour Inc. Smaller tour organizers alleged that the ATP’s reorganization plan for 2009 would anticomptitively lock out smaller tour organizers, religating them to minor league status.
Leading EU Auto Glass Producers Fined for Cartel Behavior
December 1, 2008 – 7:57 pm
The European Commission recently fined auto glass producers — Asahi, Pilkington, Saint-Bogain, and Soliver — with over 90% of the market for engaging in a market sharing cartel from 1998-2003.
Court Dimisses Per Se Challenge to Staples/HP Printer Ink Deal
December 1, 2008 – 6:19 pm
A class action complaint alleged that the Staples/HP deal in which Staples agreed to stop selling its own ink for HP printers and instead to promote the HP band of ink constituted a per se illegal horizontal agreement not to compete. Apparently intending to reach the appellate level quickly, the plaintiffs alleged only a per se claim. District of Massachusetts Judge Rya Zobel dismissed the complaint, holding that an agreement between a supplier and a retailer could not be condemned per se. This appears to be an interesting case to watch.
California Supreme Court to Decide Whether Cartwright Act Permits Pass-on Defense
December 1, 2008 – 4:05 pm
Under Federal antitrust law, a defendant cannot defend against a claim by arguing that the plaintiff did not suffer injury as a result of anticompetitive overcharges because the plaintiff passed on the overcharge through higher prices of its own. Indirect purchases, under federal law, are generally barred from suit. In Clayworth v. Pfizer, the California Supreme Court will determine whether the no-pass-on defense rule applies under the Cartwright Act, California’s state antitrust statute.
Large Commercial Insurance Consortium Receives Positive Business Review
December 1, 2008 – 3:50 pm
The Antitrust Division stated no present intent to challenge a consortium of insurers to issue commercial policies in excess of $250. The members of the consortium currently supply less than 5% of the market and would be permitted to enter individual bids in competition with the consortium. The Division stated that it believed that the consortium would increase the competitive options in the market.