Antitrust

Petroleum Refiners’ Idling of Tankers and Unnecessary Shutdown of Refineries Support Sherman § 1 Conspiracy Allegation to Manipulate California Petroleum Market

The court denied petroleum refiner defendants' motion to dismiss plaintiff's Sherman § 1 claim and determined plaintiff sufficiently asserted concerted activities against the economic self interest of the defendants absent conspiracy. "Defendants' actions, as alleged, were extreme. For example, in October of 2012, Defendants ran on the market after advance notice from Exxon of the power failure at its Torrance refinery, causing a price increase even before the power failure was announced to the public. In the absence of an agreement, Defendants' run on the market would be against their individual self-interest in the extreme, as their inventories were high, [...]

2018-06-22T12:20:03+00:00 June 22nd, 2018|Antitrust, Docket Report|

​In re Mexican Government Bonds Antitrust Litigation Established, Interim Counsel Appointed, in SDNY

The court granted plaintiffs' motion to consolidate six actions into one consolidated class action proceeding under Rule 42(a). "A Master Docket and Master File are hereby established for the Consolidated Action. The Master File number shall be 18-cv-02830 (JPO). A Master Docket will be maintained for the Related Actions with all entries to be docketed under the Master File number. . . . The Consolidated Action shall be referred to as: In re Mexican Government Bonds Antitrust Litigation, and every pleading or other paper filed in the Consolidated Action shall bear [such] caption . . . ." Oklahoma Firefighters Pension [...]

2018-06-21T12:03:03+00:00 June 21st, 2018|Antitrust, Docket Report|

News Report that Uber’s Global Costs Exceeded its Revenues Does Not Support Predatory Pricing Claim in Market for City of Boston

The court granted defendant Uber's motion to dismiss plaintiffs' amended Sherman § 2 complaint because plaintiffs did not sufficiently plead a predatory pricing claim. "Plaintiffs do not allege that Uber’s services were priced below Uber’s costs. . . . The second amended complaint alleges that Uber 'deflated the UberX fares to below cost in order to drive out the taxi drivers.' But such 'threadbare recitals of a cause of action’s elements, supported by mere conclusory statements, do not suffice' to survive the motion to dismiss stage. . . . Basic facts such as what an average or median 'ride' in [...]

2018-06-20T12:31:02+00:00 June 20th, 2018|Antitrust, Docket Report|

CBOE VIX Futures Cases Centralized Under § 1407 in Northern District of Illinois

The MDL panel granted one plaintiff's motion to consolidate several proceedings under § 1407 and determined the Northern District of Illinois was the appropriate transferee district. "The CBOE defendants have their headquarters in Chicago, and given their alleged role in creating, marketing, and regulating VIX futures and options and conducting the underlying special auctions, much of the common evidence likely will be located there. The majority of the other 9 defendants named thus far also have their headquarters in Chicago. Additionally, this district is the first choice of plaintiffs in ten actions and the second choice of plaintiffs in two [...]

2018-06-19T12:15:02+00:00 June 19th, 2018|Antitrust, Docket Report|

Actavis Theory of Harm Based on Success of Underlying Patent Deemed Too Speculative

The court partially granted defendants' motion for summary judgment that plaintiffs suffered no antitrust injury and determined that a theory of harm based on the success of the underlying patent was untenable. "In order to show that the Generics could have successfully – i.e., legally – launched at-risk, the Private Plaintiffs would . . . need to show that the patent would ultimately have been found either invalid or uninfringed in the underlying patent litigation. This raises again the central problem raised by Actavis: how to determine what the outcome of the underlying patent litigation would have been in a [...]

2018-06-18T11:52:02+00:00 June 18th, 2018|Antitrust, Docket Report|

Impending Party Layoffs, and Resulting Obscuring of Critical Witnesses, Weigh Against Discovery Stay

The court denied defendant's motion to stay document discovery because the stay would tactically prejudice plaintiff, and defendant would not be harmed absent the stay. "⁠[Defendant] first argues that [plaintiff] will suffer no prejudice if the Court grants the order to stay discovery. [Plaintiff] counters that impending [defense] layoffs threaten to obscure critical witnesses, denying [plaintiff] critical evidence. The discovery end date is November 30, 2018 and [plaintiff] has a right to promptly take discovery and expedite its case. The Court finds that the [tactical advantage] factor favors [plaintiff]. As to the [hardship to the non-moving party] factor, [defendant] makes [...]

2018-06-15T12:47:02+00:00 June 15th, 2018|Antitrust, Docket Report|

Increased-Leverage Theory of Clayton § 7 Harm Ineffective to Enjoin AT&T / Time Warner Merger

The court denied the government's motion to enjoin the merger of AT&T and Time Warner and determined the government's "real-world objective" evidence did not show the merger was likely to result in substantially lessening of competition on an increased-leverage theory of harm. "Importantly . . . accepting that straightforward position--i.e., that popular programmers such as Turner are able to demand more for their content than less popular programmers--does not prove that the challenged merger would harm competition pursuant to the Government's increased-leverage theory of harm. . . . [T]he Government's increased-leverage theory posits that Turner pre-merger bargaining leverage would materially [...]

2018-06-14T11:46:06+00:00 June 14th, 2018|Antitrust, Docket Report|

Non-Lawyer Employee Discussion of General Counsel’s Legal Advice Does Not Waive Privilege

The privilege special master recommended partially upholding defendant's claims of attorney-client privilege over a chain of emails between two non-lawyer defendant employees. "The document is a chain of seven emails [with the subject line] 'FW: Medicaid reinsurance deal.' The first four sequential emails in the chain do not involve or include any lawyers, and do not discuss any legal issues or legal matters. . . . The fifth sequential email is between two non-lawyer employees of [defendant]. However, in this email, [one employee] specifically discloses the substance of his discussions with [defendant's] General Counsel. The disclosure of the content of [...]

2018-06-13T11:52:02+00:00 June 13th, 2018|Antitrust, Docket Report|

Circuit Split Regarding Noerr-Pennington Does Not Constitute Substantial Ground for Difference of Opinion

The court denied defendant's motion for interlocutory appeal of a prior summary judgment order and rejected defendant's contention that a substantial ground for difference of opinion existed on the question of whether statements incidental to a non-sham litigation were protected by Noerr-Pennington. "To be sure, cases from other circuits have reached conclusions that are favorable to [defendant's] position. However, the mere fact that other courts have taken a different approach does not demonstrate a substantial difference of opinion under the meaning of § 1292(b). Moreover, as [plaintiff] argues, the Ninth Circuit in Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th [...]

2018-06-12T11:56:02+00:00 June 12th, 2018|Antitrust, Docket Report|

Repleading Unnecessary When Substituting Defendant’s Successor-in-Interest

The court denied plaintiffs' motion to amend the caption of the proceeding to reflect the proceeding was against a defendant's successor-in-interest and rejected defendants' contention that repleading was required. "The parties agree that Sun Pharmaceutical Industries, Ltd. is the successor-in-interest of Ranbaxy Laboratories, Ltd., and Ranbaxy does not oppose including Sun as a Defendant as its successor-in-interest. Ranbaxy, however, asserts that Plaintiffs should be required to formally amend their Complaint to name Sun as a Defendant in order 'to allow Sun to assess, and then answer, move, or otherwise respond to the allegations that the King Drug Plaintiffs intend to [...]

2018-06-11T13:20:04+00:00 June 11th, 2018|Antitrust, Docket Report|