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l s antitrust exemption posted by matthew wild on october 12 2017 category antitrust immunity section 2 sherman act in right field rooftops llc v chicago cubs baseball club llc no 16 3582 2017 u s app lexis 16847 7th cir sept 1 2017 the seventh circuit affirmed dismissal of monopolization and attempted monopolization claims against the chicago cubs based on professional baseball s antitrust exemption plaintiffs appellants were owners of two buildings that sold tickets to view cubs games from their roofs in support of their monopolization claim the rooftop owners alleged among other things that the cubs attempt ed to set a minimum ticket price purchas ed rooftops threaten ed to block rooftops with signage that did not sell to the cubs and beg an construction at wrigley field that would obstruct views from rooftops id at 13 14 the seventh circuit found that these allegations fell within baseball s antitrust exemption because they part of the business of baseball in doing so the seventh circuit followed the u s supreme court precedent in which the supreme court long ago held that the sherman act had no application to the business of giving exhibitions of business of base ball id at 12 quoting toolson v new york yankees inc 346 u s 356 357 1953 followed by flood v kuhn 407 u s 258 1972 as discussed in the previous post it remains curious that baseball is the only sport that has an antitrust exemption oct 02 major league baseball s antitrust immunity defeats baseball scouts class action posted by matthew wild on october 2 2017 category antitrust immunity in wyckoff v officer of the commissioner of baseball no 16 3795 cv 2017 u s app lexis 16728 aug 31 2017 the second circuit affirmed dismissal of a putative antitrust class action brought by professional baseball scouts against major league baseball the scouts alleged that the major league baseballs teams conspired to depress competition in their labor market in violation of 1 of the sherman act however in 1922 the supreme court created antitrust immunity for the business of baseball and repeatedly reaffirmed baseball s antitrust exemption id at 3 citations omitted because the scouts claim fell squarely within baseball s antitrust exemption their antitrust claim failed this case illustrates the vitality of baseball s antitrust exemption it is curious that no other sport has such an exemption sep 14 eleventh circuit reverses dismissal of auto body companies sherman act section 1 complaint posted by matthew wild on september 14 2017 category antitrust per se analysis section 1 sherman act twombly in quality auto painting ctr of roselle inc v state farm indem co no 15 14160 2017 u s app lexis 17138 11 cir sept 7 2017 the eleventh circuit recently reversed the dismissal of the actions brought by auto body shops against auto insurers the actions were brought for violations 1 of the sherman act and for state claims of unjust enrichment quantum meruit and tortious interference the court summarized the auto body shops allegations as follows the body shops argue that the insurance companies engaged in two lines of tactics in pursuit of a single goal to depress the shops rates for automobile repairs the first line of tactics was designed to set a market rate which reflected no forces of the market but an artificial rate that would benefit only insurance companies the second line of tactics was designed to pressure the body shops in accepting the market rate by steering insureds away from non compliant shops that charged more than the rate 2017 u s app lexis 17138 at 25 based on these allegations which are set out in more detail in the complaints the body shops argued that the insurance companies engaged in horizontal price fixing and boycotting horizontal price fixing and boycotting are per se violations of 1 of the sherman act the court held that despite direct allegations of an agreement the allegations were sufficient to infer the existence of an agreement thus the complaints were sufficient to satisfy the pleading standard established by bell atl corp v twombly 550 u s 544 2007 to satisfy twombly the court explained in the absence of direct evidence of an agreement an antitrust claimant must show not only parallel conduct but also further factual enhancement often labeled as parallel plus or plus factors these factual enhancements serve as proxies for direct evidence of an agreement this c ircuit has never prescribed factors or a combination of factors that may be sufficient to tip the parallel conduct into the domain of per se violation 2017 u s app lexis 17138 at 35 36 citations omitted the court held that the body shops established parallel conduct because they allege that the insurance companies adopted the same labor rate and materials costs and employed the same line of tactics to depress the rate and costs id at 37 the court held that the body shops established further factual enhancements because of the adoption of a uniform price despite variables that would ordinarily result in divergent prices and uniform practices id at 41 the court thus held that it could infer the existence of an agreement id the court also reversed dismissal of the unjust enrichment quantum meruit and tortious interference claims the court held that unjust enrichment requires a showing that a plaintiff conferred a benefit on a defendant that the defendant knew about and that allowing defendant to retain the benefit without the payment would be unjust id at 49 50 the court then held the allegations readily and plausibly establish the claims of unjust enrichment because t he body shops allege that the shops conferred benefits by providing repair services at the low price that the insurance companies collectively selected and the body shops allege that the insurance companies not only knew about the benefits but also forced the shops to confer the benefits id at 50 the court held that the body shop s readily and plausibly establish claims for quantum meruit because the body shop s allege that they rendered repair services expecting compensation that the services were in fact for the insurance companies and that the companies paid an artificially low price below the reasonable value for the services id at 53 the court held that the tortious interference claims were readily and plausibly establish ed because of the insurance companies false and misleading statements about the shops business integrity and quality and that this resulted in a loss of business id at 54 jun 20 buyer beware consummating non hsr reportable mergers may prove costly in the end posted by matthew wild on june 20 2014 category antitrust government investigations mergers and acquisitions u s department of justice antitrust division a recent speech by deputy assistant attorney general leslie overton emphasized the risk in consummating mergers that do not have to be reported under the hsr act but have or may have adverse effects on competition ms overton emphasized that the antitrust division devotes substantial resources to and challenges non reportable mergers the antitrust division learns about non reportable mergers from a number of sources including customers industry contacts and trade publications a successful government challenge to a merger can have drastic consequences for the buyer the remedy is generally divestiture of key assets and not rescission the buyer may have paid substantial money for these assets but will lose them without receiving much value in addition any profits earned because of adverse effects of competition are subject to disgorgement and perhaps most significantly the buyer and the seller can be sued for treble damages in class actions brought by injured customers in an article entitled buyer beware consummating non hsr reportable mergers may prove costly in the end published by the aba antitrust litigator the author herein discusses these risks in sum parties to non reportable transactions face significant risks if they consummate an anti competitive merger author matthew s wild wild law group pllc aug 29 district of columbia sues exxonmobil and its dc distributors seeking to end their exclusive supply agreements and lower retail gasoline prices posted by matthew wild on august 29 2013 category antitrust government investigations state antitrust and consumer protection claims state attorneys general press release washington d c the district of columbia filed a lawsuit against exxonmobil oil corporation and its gasoline distributors for washington d c to stop enforcement of exclusive supply agreements that make one group of affiliated distributors the only suppliers of exxon branded gasoline in d c attorney general irvin b nathan announced today the complaint filed in d c superior court alleges that the exclusive supply agreements violate the district s retail service station act the affiliated distributors capitol petroleum group llc anacostia realty llc and springfield petroleum realty llc are the exclusive gasoline suppliers for about 60 of the 107 gasoline stations in d c including all 31 exxon stations 19 of 20 shell stations all 12 valero stations and 3 unbranded stations the district s lawsuit challenges agreements that make these affiliated distributors the exclusive suppliers of exxon branded gasoline for the 27 independently operated exxon stations in d c or about 25 of the gasoline stations in the city the exclusive supply agreements or earlier versions of them were established by exxonmobil and were transferred in 2009 to the affiliated distributors along with exxonmobil s ownership of the 30 d c exxon stations to which the agreements then pertained according to the district s complaint these supply agreements can now be enforced either by the affiliated distributors or by exxonmobil through its separate agreements with other area distributors the district alleges that the exclusive supply agreements allow the affiliated distributors to set the wholesale prices paid for exxon branded gasoline in d c depriving d c residents of the benefits of competition in the wholesale supply of exxon branded gasoline under the district s gasoline marketing law a retail gasoline dealer is free to purchase a brand of gasoline from any supplier of the brand attorney general nathan said our suit seeks to end these unlawful supply restrictions increase wholesale competition and bring down retail prices at the pump jul 11 reverse payment settlements in patent disputes are not immune from the antitrust laws posted by matthew wild on july 11 2013 category antitrust ftc actions immunity intellectual property rule of reason section 1 sherman act on june 17 2013 in ftc v actavis inc the supreme court reversed a ruling which held that settlements that have the patentee paying the patent infringer to withdraw its patent challenge and not to infringe i e reverse payments are immune from the antitrust laws as long as the agreement not to infringe is within the scope of the patent the supreme court held that these agreements are subject to the rule of reason under 1 of the sherman act and an inquiry into the patent s validity is unnecessary to the analysis rather the size of the reverse payment alone can be used as a proxy for the strength or weakness of the patent a large reverse payment can be sufficient for the agreement to violate the rule of reason the supreme court noted that other ways to settle patent litigation such as allowing the alleged infringer to market the infringing product after a delay but before the patent s expiration would pass muster under the rule of reason this decision is going to change the way brand name pharmaceutical companies settle patent disputes with generic drug manufacturers as those settlements frequently involve large reverse payments in exchange for the generic drug manufacturer staying out of the market the decision is linked here ftc v actavis author matthew s wild wild law group pllc jul 10 apple found liable for price fixing of e books posted by matthew wild on july 10 2013 category antitrust government investigations section 1 sherman act state attorneys general today the united states district court for the southern district of new york held plaintiffs have shown that apple conspired to raise the retail price of e books and that they are entitled to injunctive relief a trial on damages will follow the opinion appears here apple decision author matthew s wild wild law group pllc jun 20 the supreme court allows american express to insulate itself from antitrust liability posted by matthew wild on june 20 2013 category antitrust class certfication in american express v italian colors amex the supreme court held today that a contractual waiver of class arbitration is enforceable under the federal arbitration act when the plaintiff s cost of individually arbitrating a federal statutory claim exceeds the potential recovery the problem is that the decision leaves the plaintiff with no way to vindicates its rights the plaintiff s maximum recovery would have been 38 000 but to proceed on its own would require an expert report from an economist that would cost between 100 000 and 1 000 000 the contract s confidentiality provisions prevent the plaintiff from sharing this expense with other victims thus the clause effectively precludes any method to vindicate the sherman act not just class actions the dissent summed the import of the decision as t oo darn bad it really is author matthew s wild wild law group pllc apr 22 kansas enacts legislation making resale price maintenance subject to the rule of reason posted by matthew wild on april 22 2013 category antitrust resale price maintenance rule of reason state antitrust and consumer protection claims overruling the recent kansas supreme court decision in o brien v leegin creative leather products inc discussed in the may 8 2012 post the kansas legislature has mandated that resale price maintenance is subject to the rule of reason this legislation is remarkable in light of all the uproar over the united states supreme court s decision in leegin creative leather products v psks 127 s ct 2705 2007 that made resale price maintenance subject to the rule of reason for example as discussed in previous posts of may 4 2009 and october 29 2009 the maryland legislature enacted the first leegin repealer statute making resale price maintenance per se unlawful and 41 state attorneys general have urged congress to repeal leegin author matthew s wild wild law group pllc mar 18 162 3 million jury verdict after trebling against chinese vitamin c manufacturers posted by matthew wild on march 18 2013 category antitrust antitrust injury damages section 1 sherman act on march 14 2013 a jury in the united states district court for the eastern district of new york awarded 54 100 000 to an antitrust plaintiff class the jury found that the chinese vitamin c manufacturers engaged in price fixing this verdict demonstrates that there is no need for a criminal pro...