Antitrust Docket Report for August 28, 2017
Antitrust Report August 28, 2017
Competitor's Acquisition of Golf Ball Tracking Technology Not Ripe For Antitrust Review Absent Showing of Lessened Competition
The court granted defendant's motion to dismiss plaintiff's Sherman Act claims because plaintiff failed to sufficiently allege antitrust standing. "[Plaintiff] argues that [defendant's] acquisition of [a third party] means that[defendant] controls the very technology that [plaintiff] built its business model upon, and thereby 'den[ies] [plaintiff] access to long-term, continued licensing of [that] technology and purchasing of . . . equipment.' . . . [Plaintiff] failed to plead that [defendant's] actions harmed competition overall, and not just [plaintiff's] competitive advantage. . . . The court finds that [plaintiff] failed to plead that [defendant's] acquisition of [the third party] would substantially lessen competition or tend to create a monopoly in the market overall. . . . At this time, the court finds that [plaintiff] has not presented any plausible factual allegations that [defendant] is foreclosing competition through its acquisition of [the third party]."
Sureshot Golf Ventures, Inc. v. Topgolf International, Inc., 4-17-cv-00127 (TXSD 2017-08-24, Order) (Gray H. Miller)
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United States District Courts
 
12 New cases
1 Cases with new claims
10 Significant decisions
 
 
United States District Courts - New Cases (12)
 
Dutton et al v. Audi AG et al  
2-17-cv-06302 (CACD) August 25, 2017
Claim
Complaint - Sherman § 1 Contract, Combination, Conspiracy
 
Defendant
Audi AG
Audi Group Of America, Inc.
Audi of America, LLC
Bentley Motors Ltd.
BMW AG
BMW North America
Daimler AG
Dr. Ing hcF Porsche AG
Mercedes-Benz USA, LLC
Mercedes-Benz US International, Inc.
 
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Plaintiff
Donald Dutton
Dutton Audi Diesel Premium Class
Dutton Audi German Premium Class
Maria Renard
Myron Natwick
Rosa Dzubak
Graham and Martin
Anthony G Graham
Michael Joseph Martin
 
 
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Eagle Pharmaceuticals, Inc. v. Eli Lilly and Company  
2-17-cv-06415 (NJD) August 24, 2017
Judge
Mark Falk
John Michael Vazquez
 
Claim
Complaint - Sherman § 2 Attempt
Complaint - Sherman § 2 Monopolization
 
Defendant
Eli Lilly and Company
 
Plaintiff
Eagle Pharmaceuticals, Inc.
Kirkland & Ellis
Jay P Lefkowitz
Karen N Walker
Michael D Shumsky
 
Walsh Pizzi O'Reilly Falanga
Christine I Gannon
Liza M Walsh
Marc D Haefner
 
 
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Blevins et al v. Volkswagen AG et al  
2-17-cv-06417 (NJD) August 25, 2017
Judge
Madeline C. Arleo
Leda D. Wettre
 
Claim
Complaint - Sherman § 1 Contract, Combination, Conspiracy
 
Defendant
Audi AG
Audi of America, LLC
Bayerische Motoren Werke Aktiengesellschaft
BMW of North America, LLC
Daimler AG
Dr. Ing hcF Porsche AG
Mercedes-Benz USA, LLC
Mercedes-Benz US International, Inc.
Porsche Cars North America, Inc.
Volkswagen AG
Volkswagen Group of America, Inc.
 
Plaintiff
Blevins VW German Luxury Vehicle Class
Dale Talbot
Richard Haugan
Sergey Bogomolov
Staci Blevins
Keller Rohrback
Gretchen Freeman Cappio
Lynn L Sarko
Ryan P McDevitt
 
Carella Byrne Cecchi Olstein Brody & Agnello
James E Cecchi
 
 
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Breakwater Trading LLC et al v. Bank Of America Corporation et al  
1-17-cv-06497 (NYSD) August 25, 2017
Claim
Complaint - Sherman § 1 Contract, Combination, Conspiracy
 
Defendant
Bank of America Corporation
Bank of Nova Scotia, New York Agency
Barclays Capital Inc.
Bear Stearns & Co., Inc.
BMO Capital Markets Corp.
BNP Paribas Securities Corp.
Cantor Fitzgerald & Co.
CIBC World Markets Corp.
Citigroup Global Markets Inc.
Commerz Markets LLC
 
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Plaintiff
Breakwater Trading LLC
BWT Professional Trading, LLC
Endeavor Trading, LLC
Nussbaum Law Group
Bart D Cohen
Bradley J Demuth
Hugh Daniel Sandler
Linda P Nussbaum
 
Criden & Love
Kevin B Love
Lindsey C Grossman
Michael E Criden
 
Schlesinger Law Offices
Jeffrey L Haberman
Jonathan R Gdanski
Scott P Schlesinger
 
 
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United States District Courts - Cases with New Claims (1)
 
In re: Liquid Aluminum Sulfate Antitrust Litigation  
2-16-md-02687 (NJD) August 24, 2017
Claim
Complaint - Clayton § 16 Injunction
Complaint - Sherman § 1 Contract, Combination, Conspiracy
 
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United States District Courts - Significant Decisions (10)
 
Federal Trade Commission v. Qualcomm Incorporated  
5-17-cv-00220 (CAND) August 24, 2017
Judge
Nathanael M. Cousins
 
Motion to Compel Discovery Granted
  Objection: Response Barred by Foreign Law
The court granted defendant's motion to compel discovery of documents produced to plaintiff the FTC and to foreign governmental bodies by third parties because comity concerns did not forbid such disclosure. "The disputed documents are in the United States. As a result, the Court agrees with [defendant], and is skeptical that the test in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522 (1987) even applies here. However, even if the Court were to examine this request through that test, the Court would still find that [defendant] is entitled to discovery of the dual submissions documents. Neither the FTC nor the foreign entities have provided the Court with any foreign laws or privileges that would be violated by the production of those documents . . . to [defendant]. The European Commission and the Korea Fair Trade Commission have simply expressed their concern with disclosure because of the effect the disclosure may have in their investigatory and enforcement efforts. In response to the Court’s request for further information, the European Commission’s Director General of Competition filed a letter with the Court in support of not producing the dual submissions documents to [defendant]. The Court carefully reviewed the letter, and while it finds the Director General’s concerns valid, those concerns are not backed up by a persuasive legal argument." (page 2)
 
  Objection: Confidential
  Informant Privilege
The court granted defendant's motion to compel discovery of documents turned over to plaintiff FTC because defendant's ability to defend itself and lack of prejudice to the source meant the informant's privilege carried diminished weight here. "[T]he informant’s privilege is a qualified privilege. The Court must balance the public interest to protect information with the defendant’s right to defend itself. . . . [T]he Court finds compelling [defendant's] necessity to defend itself, not only in this case, but in the many other related cases that have been filed against it nationwide. In addition, this case has already demonstrated that it will require a very high volume of discovery, and the close of fact discovery in this case is [approximately 7 months away], making this request time-sensitive. Not granting this discovery now, as opposed to waiting until right before trial would be a waste of the parties and the Court’s time and resources, as the information obtained may very likely be used in followup discovery." (page 4)
 
 
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Omni Healthcare Inc. et al v. Health First, Inc. et al  
6-13-cv-01509 (FLMD) August 24, 2017
Judge
Roy B. Dalton, Jr.
 
Motion for Sanctions (FRCP 11) Denied
  Sanctions -- FRCP 11
  Objectively Baseless Pleading
The court denied plaintiffs' motion for Rule 11 sanctions when defendant moved the court to keep certain funds in escrow pending outcome of a related qui tam action in alleged contravention of a prior agreement because defendant's action was not objectively frivolous. "The Undersigned is painfully familiar with settlement discussions surrounding both this action and the Qui Tam Action. Having reviewed the e-mail communications concerning settlement between the Health First Defendants and the relator in the Qui Tam Action, as well as the declaration submitted by the . . . Defendants in response to the Second Motion for Sanctions . . . the Court does not agree that the . . . Defendants’ belief that the settlement of both actions was co-dependent is objectively frivolous. In any event, notwithstanding the grounds raised in the Emergency Motion, the Undersigned later found that holding the settlement proceeds in escrow was the most prudent course of action." (page 10)
 
 
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King Drug Company Of Florence, Inc. v. Cephalon, Inc., et al  
2-06-cv-01797 (PAED) August 24, 2017
Judge
Mitchell S. Goldberg
 
Motion in Limine -- Expert Testimony (Daubert) Denied In Part, Granted in Part
  Expert Opinion on Ultimate Issue of Law
  Numerosity (FRCP 23(a))
The court partially denied defendants' Daubert motion to strike plaintiffs' expert's opinions on the numerosity of a proposed class because the expert asserted impermissible legal conclusions. "[The expert] begins his report by explaining that he was retained to offer an opinion on 'whether joinder is (or would have been) impracticable under the circumstances of this case, using the definition of impracticability set forth in the Third Circuit’s decision in this matter.' He then summarizes his conclusion, stating that 'it is his expert opinion that the class in this case meets the requirements of Rule 23(a)(1).' . . . [The expert's] statement that joinder is impracticable in this case clearly constitutes a legal conclusion. While the concerns regarding jury confusion are not present here, [the expert's] legal conclusions usurp my duty to fulfill the mandate the Third Circuit has tasked me with completing, would not assist me in making the ultimate determination regarding numerosity and, therefore, will be excluded." (page 5)
 
 
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Sureshot Golf Ventures, Inc. v. Topgolf International, Inc.  
4-17-cv-00127 (TXSD) August 24, 2017
Judge
Gray H. Miller
 
Motion to Dismiss -- Lack of Standing Granted
  Sufficiency Of Pleadings
  Article III Standing
The court granted defendant's motion to dismiss plaintiff's Sherman Act claims because plaintiff's claims were premature and therefore plaintiff lacked Article III standing to sue. "[Defendant] argues that it simply possesses an option not to renew [plaintiff's] license of the [business critical technology] at the end of the five-year contract, and that [plaintiff] is prematurely suing under the fear that [defendant] will decline to renew or extend the existing contract 'when and if it occurs' in the future. The court agrees with [defendant] that [plaintiff] has failed to plead that [defendant] has denied it access to the [technology] . . . . At this point, the court finds that [plaintiff's] perceived threats of monopolistic behavior are speculative and do not confer standing." (page 7)
 
  Injury to Competition
  Sufficiency Of Pleadings
The court granted defendant's motion to dismiss plaintiff's Sherman Act claims because plaintiff failed to sufficiently allege antitrust standing. "[Plaintiff] argues that [defendant's] acquisition of [a third party] means that [defendant] controls the very technology that [plaintiff] built its business model upon, and thereby 'den[ies] [plaintiff] access to long-term, continued licensing of [that] technology and purchasing of . . . equipment.' . . . [Plaintiff] failed to plead that [defendant's] actions harmed competition overall, and not just [plaintiff's] competitive advantage. . . . The court finds that [plaintiff] failed to plead that [defendant's] acquisition of [the third party] would substantially lessen competition or tend to create a monopoly in the market overall. . . . At this time, the court finds that [plaintiff] has not presented any plausible factual allegations that [defendant] is foreclosing competition through its acquisition of [the third party]." (page 8)
 
 
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