Tag Archives: Conspiracy

Update: Section 1 Challenge to Jimmy John’s No-Poach Agreement Survives Motion to Dismiss

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Class Action Litigation, Sherman Act 1
We recently wrote that the Department of Justice’s and the Federal Trade Commission’s announcements condemning no-poaching agreements already have sparked civil class actions, including a putative class action against Jimmy John’s. Butler v. Jimmy John’s Franchise, LLP, No. 18-cv-0133, 2018 WL 3631577 (S.D. Ill. July 31, 2018). Since then, the district court denied a motion … Continue Reading

Has the Third Circuit Just Scrambled ‘Umbrella Damages’?

Photo of Danyll FoixBy Danyll Foix on Posted in Agriculture, Antitrust Litigation
A recent decision by the Third Circuit permits plaintiffs to pursue antitrust damages for egg products supplied by non-conspiring parties. This decision could represent a crack in the “umbrella damages” rule that precludes plaintiffs from seeking damages for transactions with parties that are not part of an alleged antitrust conspiracy. Umbrella damages often come up … Continue Reading

Second Circuit Resurrects LIBOR Antitrust Case Against Bank Defendants, But Reprieve May Be Short-Lived

Photo of Terry SullivanBy Terry Sullivan on Posted in Antitrust Litigation, Class Action Litigation
On May 23, 2016, the Second Circuit breathed new life into the class action case against 16 banks belonging to the British Bankers’ Association (the Banks), vacating the Southern District of New York’s dismissal of the case for lack of antitrust injury and remanding the case on the portion of antitrust standing that requires the … Continue Reading

Justice Scalia’s Antitrust Legacy: Part 1, The Majority Opinions

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust Litigation, Articles
Justice Antonin Scalia once observed that “the American people are neither sheep nor fools,” in McConnell v. Federal Election Commission, 540 U.S. 93 (2003). During his 30 years on the U.S. Supreme Court, he wrote 104 majority opinions but only three of those addressed substantive antitrust issues. This article addresses those three seminal antitrust opinions. Next … Continue Reading

“Ain’t Wastin’ Time No More”* — Doctors, Vets, and Lawyers in the Antitrust Crosshairs

By Jonathan Lewis on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation, Sherman Act 1
Supreme Court Decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission Prompts Legal Challenges to State Professional Boards Earlier this month a Texas federal district court judge granted a motion by Teladoc, Inc. (Teladoc) for a preliminary injunction enjoining the Texas Medical Board (TMB) “from taking any action to implement, enact, … Continue Reading

Collusion Course: The Limits of Hot Documents

By Lee Simowitz on Posted in Antitrust Litigation, Sherman Act 1
Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving actual injury to competition. Such precious nuggets lead inexorably to near-automatic liability for the defendants. But what if the nugget … Continue Reading

Leave My Employees Alone! You Promised You Wouldn’t Hire/Solicit Them

By Jonathan Lewis on Posted in Antitrust Litigation, Government Investigations, Sherman Act 2
With the antitrust class action against Google, Apple, Intel and other Silicon Valley heavyweights nearly in the books ($300 million plus in settlements and millions more in defense fees later), it is time once again to ask what this settlement means for the continued use of clauses in merger and other types of agreements like … Continue Reading

How Direct Is Direct? Judge Posner Clarifies the Extraterritorial Scope of the Antitrust Laws via the “Direct” Effects Test under the FTAIA

By Erik Raven-Hansen on Posted in Antitrust Litigation
A recent decision from Judge Posner in the Seventh Circuit, Motorola Mobility LLC v. AU Optronics, offers the latest insight into the extraterritorial reach of the Sherman Act.  In dismissing Motorola’s price-fixing claims of more than $3.5 billion, Judge Posner continued the clarification of the Foreign Trade Antitrust Improvements Act (“FTAIA”), by narrowing the conduct that constitutes … Continue Reading

Patent Trolls, Anti-Trolls, and Antitrust Law Collide in Patent Licensing Dispute

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Patents, Sherman Act 1
We previously wrote that regulators are considering using antitrust laws to reign in perceived abuses by non-practicing entities or, more familiarly, “patent trolls” – entities that purchase the rights to patents not to practice the patents but to enforce them through licensing or litigation.  In a recent case, antitrust laws are taking center stage in … Continue Reading

Update: Where (and What) is the Harm?

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Sherman Act 1
Court denies antitrust plaintiffs’ request to amend complaint in LIBOR manipulation case We previously wrote about Judge Buchwald of the Southern District of New York dismissing plaintiffs’ antitrust claims arising from the LIBOR manipulation scandal.  Recently, the Court denied plaintiffs’ request to cure the defects in its claims by filing a second amended complaint. In re LIBOR-Based … Continue Reading

LIBOR Going Forward: How Will Dismissal of Antitrust Claims Affect Investigations and Private Claims?

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Government Investigations, Sherman Act 1
We recently wrote about the dismissal of the plaintiffs’ antitrust claims against banks involved in the LIBOR manipulation scandal for failure to allege an antitrust injury.  Since that dismissal, the court has granted plaintiffs leave to move to amend their complaints, although the court openly questioned whether the plaintiffs’ proposed amendments cured the defects in … Continue Reading

Where (and What) Is the Harm?

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Sherman Act 1
Antitrust claims in LIBOR manipulation cases dismissed for lack of antitrust injury. The recent LIBOR suppression scandal has given rise to numerous lawsuits, both individual and putative class actions based on several theories of recovery, that have been consolidated in the Southern District of New York.  LIBOR is calculated by averaging certain British Banking Association … Continue Reading

When Will They Learn? Doctors Continue to Face Antitrust Charges for Jointly Negotiating Contracts without Clinical or Financial Integration

By Jonathan Lewis on Posted in Antitrust Litigation, Government Investigations, Sherman Act 1
Legitimate joint marketing and selling arrangements have the potential to produce efficiencies.  This is particularly so, for example, where the arrangement enables the participants to make or market products that they could not do alone.  The Antitrust Guidelines for Collaborations among Competitors, Statements of Antitrust Enforcement Policy in Health Care, as well as scores of … Continue Reading

I Don’t Care How Much I Pay (too Much, the Magic Bus)* – Part II

By Jonathan Lewis on Posted in Antitrust Litigation, Class Action Litigation, Government Investigations, Sherman Act 1
Apparently, Mary Hanson, Tracey Nobel, Stefanie Nocera and the class they hope to represent do! In a prior post, we noted that the U.S. Department of Justice and State of New York filed an antitrust complaint that seeks to unwind a joint venture formed in 2009 by two competing tour bus operators in New York … Continue Reading

I Don’t Care How Much I Pay (too Much, the Magic Bus)*

By Jonathan Lewis on Posted in Antitrust Litigation, Government Investigations, Sherman Act 1
DOJ and New York sue to restore tour bus competition Last week, the U.S. Department of Justice and State of New York filed an antitrust complaint that seeks to unwind a joint venture formed in 2009 by two competing tour bus operators in New York City.  The tour bus operators supposedly accounted for about 99 … Continue Reading

Lonely Conspirators: Antitrust Liability When Nobody Joins Your Conspiracy

By Lee Simowitz on Posted in Antitrust Litigation, FTC Act, Government Investigations, Sherman Act 1
One is the loneliest number that you’ll ever do Two can be as bad as one It’s the loneliest number since the number one                    – Three Dog Night The worst antitrust offenses involve conspiracies involving multiple actors.  Hard-core offenses under Section 1 of the Sherman Act, such as price-fixing, market division, customer allocation, or … Continue Reading
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