September 10, 2008 – 10:14 am
CBS Interactive, a provider of fantasy football games, has challenged in the District of Minnesota the NFL Players’ Associate demand for licensing fees for the right to use player statistics as part of its game. CBS Interative argues that the players demand constitutes an attempt to monopolize the fantasy football market. This case mirrors a similar one decided last year in which the Eighth Circuit held that Major League Baseball players had a right of publicity in their statistics connected to their names under Missouri law, a fantasy baseball provider’s free speech rights to publish statistics and player names on its website preemtps the right of publicity in this context. This will be an interesting case to watch.
Update: CBS has filed for summary judgment, arguing that the 8th Circuit’s decision in the fantasy baseball case, which held that the first amendment rights of the game provider trumps the players’ right of publicity, extends to the fantasy football case. The NFL players association has responded by filing its own suit for damages for failure to pay licensing fees in the Southern District of Florida. It argues that the Minnesota case should be dismissed or transferred because neither party has substantial connections to the state of Minnesota. The association accuses CBS of forum shopping to gain the advantage of the 8th Circuit’s decision in the fantasy baseball case.
September 8, 2008 – 11:43 am
Update September 2009: The California State Courts have granted summary judgment in favor of Barr in a case brought under that state’s antitrust laws by indirect purchasers challenging the reverse payment settlement in conjunction with the drug Cipro. The state court cited the Federal Circuit’s opinion holding that reverse payment settlement’s ordinarily did not violate the antitrust laws and held that California state antitrust law (the Cartwright Act) is identical to federal law for these purpsoes.
Update: November 2008: Barr has settled with plaintiffs CVS and Walgreens, but not Meijer.
A District of Columbia federal district court judge recently denied Barr Pharmaceuticals’ motion for summary judgment in a case alleging that Barr accepted a $20 million payment not to release a generic version of the oral contraceptive Ovcon. Rejecting the plaintiff’s argument that the agreement was unlawful per se, the court held that a genuine issue of material fact existed as to whether Ovcon constituted a relevant market or whether other oral contraceptives had to be included.
September 4, 2008 – 2:59 pm
A Northern District of CA federal district court judge recently rejected motions to dismiss in a number of consolidated cases alleging price fixing among flat panel display producers. Although the court required the plaintiffs to amend the complaint to add more specific allegations in some circumstances, it held that the complaint generally was sufficient to satisfy Twombly because the plaintiffs alleged “complex and unusual pricing practices . . . which cannot be explained by the rules of supply and demand.” As an early application of the Twombly standard for alleging a conspiracy, this could be an interesting case to watch.
August 25, 2008 – 11:54 am
July 2009: In a case brought by Roxane Laboratories, Judge Anita Brody, Eastern District of Pennsylvania, denied SKB’s motion to dismiss after the plaintiff amended the complaint to allege specific reasons to believe that it’s ANDA would have been approved for generic Flonase were it not for SKB’s strategically filed consumer complaints. Roxane alleged that it had been working closely with the FDA and was very experienced in bringing genetic versions of drugs to market.
A group of indirect purchases have filed a class action in the Eastern District of Pennsylvania alleging that SmithKline Beecham filed sham citizens petitions with the FDA designed to delay the approval of a generic version of Flonase. Sham cases are difficult to pursue because petitioning a government body is generally permitted by the antitrust laws. Demonstrating that a petition is a mere sham requires proof that the petitioning activity was subjectively groundless. The allegations in this case suggest that a large part of the problem was caused by SmithKline Beecham’s strategically delayed filing. The case may thus pose the interesting question as to whether a strategically delayed, but not utterly groundless, petition may be characterized as a sham.
August 22, 2008 – 4:43 pm
National Laser Technologies, a company that refurbishes and sells used dental lasers, has sued Biolase Technology in the Southern District of Indiana, alleging that the laser manufacturer has monopolized the dental laser market by threatening to refuse to sell essential products to dentists that purchase used lasers from National Laser.
August 22, 2008 – 4:32 pm
Eisai, Inc. has filed an antitrust case in the District of New Jersey alleging that Sanofi-Aventis violated the antitrust laws by offering a discount program pegged to the percentage of the purchaser’s anti-coagulant drug needs that are fulfilled by Sanofi-Aventis drugs. The complaint alleges that the largest discounts require customers to purchase 90% of their need from Sanofi-Aventis, and those purchasing less than 75% of their needs can receive only a 1% discount. Cases attacking discounting packages — requiring the customer to purchase more than one drug in order to obtain the disount — for excluding competition have proven successful in the past. This case, by contrast, appears to attack a percentage-of-requirements discount policy that does not necessarily tie the purchase of separate drugs to the discount. It will be interesting to see how the court assesses the differing postures of the two types of cases.
August 22, 2008 – 4:20 pm
Judge Garrett Brown, District of New Jersey, recently dismissed a group of consolidated cases alleging that oil companies conspired to circulate salary information through trade groups with the effect of suppressing salaries in the industry. The court dismissed for failure to show that the oil industry constituted a relevant market with respect to the types of labor skills in question.
August 18, 2008 – 4:18 pm
The EC issue fines totaling €79m on four groups of companies that fixed sodium chlorate prices in the late 1990s and 2000. Two companies escaped fines under the EC’s Leniency Program.
August 15, 2008 – 11:21 am
The short summaries at each of these links are intended to introduce the subject to the lay person with little or no knowledge of the antitrust laws. The United States Department of Justice, Antitrust Division, includes excellent summaries at various levels of generality on its website. Practicing lawyers will want to review those summaries in addition to the information here. You can reach the DOJ materials through the links page on this website.
August 15, 2008 – 11:18 am
The U.S. federal antitrust laws may be enforced as both civil and criminal violations. Only the United States Department of Justice has criminal jurisdiction. In general, only hard core, per se violations are prosecuted criminally. The FTC, state governments, and private parties, along with the Department of Justice may assert civil claims.
Criminal Penalties
Fines: The maximum criminal fine is $100,000,000 for corporations and $1,000,000 for individuals.
Imprisonment: Individuals may also be imprisoned for up to 10 years, in addition to any fine imposed, and the Department of Justice regularly seeks imprisonment in criminal cases.
Civil Remedies
Compensatory Damages: Plaintiffs, except foreign states, may recover three times their compensatory damages. Foreign states are limited to actual damages.
Fines: The Federal Trade Commission may impose fines of up to $10,000 per violation of an FTC cease and desist order.
Injunctive Relief: The federal courts are empowered to enjoin antitrust violations and to issue injunctive orders that safeguard against continuing violations.
Attorney’s Fees: Prevailing parties in antitrust cases may recover attorney’s fees.
Forfeiture: Property owned by a combination of firms violating Section 1 of the Sherman Act may be forfeited if transported across state lines. This provision has rarely been used.