Tag Archives: Antitrust Litigation

Antitrust Implications Loom Large in PGA Tour-LIV Golf Merger

Photo of Alyse StachBy Alyse Stach on Posted in Antitrust Exemptions & Immunities
By Alyse F. Stach[1] In August, we wrote about whether antitrust liability might be in the PGA Tour’s future through a reported DOJ Antitrust Division investigation about the PGA Tour’s actions relating to LIV Golf and about PGA Tour bylaws governing players’ participation in other golf events. Now, the same speculation exists around the surprise … Continue Reading

Yer Out (For Now): MLB Dismissed from Antitrust Lawsuit Because of Historic Antitrust Exemption

Photo of Julian PerlmanBy Julian Perlman on Posted in Antitrust Exemptions & Immunities
In a decision that stunned no one (yet will garner plenty of headlines), a federal district court granted a motion to dismiss filed by Major League Baseball (MLB) on the basis of its storied antitrust immunity. Coming almost on the eve of the World Series, this decision (now under appeal) will surely keep the MLB’s … Continue Reading

DOJ Antitrust Brings First Criminal Monopolization Case in More Than 40 Years

Photo of Carl HittingerPhoto of BakerHostetlerBy Carl Hittinger and BakerHostetler on Posted in Alert
Key Takeaways U.S. v. Nathan Nephi Zito is the first criminal monopolization case in more than 40 years, reversing the Antitrust Division’s practice of pursuing monopolization cases only civilly. The elements enumerated in the Zito plea agreement are the same elements required in a civil case, but prosecutors may encounter obstacles trying to prove these elements beyond a … Continue Reading

A Look at Judge Kavanaugh’s Antitrust Record

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Articles
BakerHostetler Partner Carl Hittinger and Associate Tyson Herrold authored an article published Aug. 24, 2018, by The Legal Intelligencer. The article, “Is Judge Kavanaugh a Fan of Antitrust Laws? Let’s Take a Look,” examines the limited antitrust jurisprudence record of U.S. Court of Appeals Judge Brett Kavanaugh, who has been nominated to replace Justice Anthony … Continue Reading

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

Did You Know the ‘Plausibility’ Standard Can Be Used for More Than Pleading Antitrust Claims?

Photo of Danyll FoixBy Danyll Foix on Posted in Antitrust Litigation, Articles
Partners Robert Abrams, Gregory Commins, and Danyll Foix authored an article published in the Global Competition Review’s “The Antitrust Review of the Americas 2018.” Their article reviews how the “plausibility” pleading standard announced by the Supreme Court in recent years has changed not only how claims are alleged, but also how this standard may be … Continue Reading

Join Us for a Teleconference on New ABA Publication, “Antitrust Class Actions Handbook”

Photo of BakerHostetlerBy BakerHostetler on Posted in BakerHostetler
The ABA recently released a new publication that should be of interest to antitrust practitioners, the Antitrust Class Actions Handbook, Second Edition. The Handbook comprehensively addresses issues that arise before, during and after the filing of an antitrust class action. The ABA Antitrust Section is hosting a teleconference featuring Handbook authors and editors this Friday, … 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

Supreme Court to Decide First Antitrust Case in Two Years

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust Litigation, Articles, Sherman Act 2
On Oct. 16, the U.S. Supreme Court granted certiorari in United States v. American Express, the court’s first antitrust case of the 2017 term and the first antitrust case they have reviewed since 2015. The American Express case presents complex questions about the legality of anti-steering provisions in agreements between credit card companies and the … Continue Reading

Antitrust Partner Dan Foix Presents at AAI Conference

Photo of BakerHostetlerBy BakerHostetler on Posted in Agriculture, Events
Danyll Foix, an antitrust partner in BakerHostetler’s Washington, DC office, will be a speaker at the 11th Annual Private Enforcement Conference of the American Antitrust Institute on November 7, 2017. Foix will join a panel discussion of “Agriculture Antitrust Class Actions,” which will review recent private enforcement actions in agricultural industries, consider challenges specific to such cases, and … Continue Reading

The ‘Failing Firm’ Defense and How Not to Lose It, Article Explains

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, Merger, Merger Review
Law360 featured an insightful article today on a recently unsealed court opinion blocking the $367 million merger of rival nuclear waste processing companies. The court blocked the merger, while rejecting the parties’ argument that the deal should be approved because otherwise the acquired firm would collapse and the market would suffer. The merging companies did not … Continue Reading

The Senate’s Uneventful Gorsuch Confirmation Hearing

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles, Sherman Act 2
Recently, we discussed in prior articles the antitrust legacy of Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit and nominee for the Supreme Court of the United States. Gorsuch has significant antitrust experience, both in private practice and on the bench. While at Kellogg, Huber, Hansen, Todd, Evans … Continue Reading

Antitrust Legacy of High Court Nominee Gorsuch in Private Practice

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles, Sherman Act 2
Last month, we discussed the antitrust jurisprudence  of Neil Gorsuch, currently of the U.S. Court of Appeals for the Tenth Circuit judge and nominee to the Supreme Court of the United States. Our discussion focused on three of Gorsuch’s opinions during his decade-long tenure with the court of appeals. Even before Gorsuch was nominated to … Continue Reading

The Antitrust Points of View of Supreme Court Nominee Neil Gorsuch

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles
Last March, we wrote a series of articles discussing Supreme Court Justice Antonin Scalia’s antitrust legacy on the Supreme Court. We noted Scalia’s admitted discomfort with the Sherman Act, specifically with holding corporate defendants, even monopolists, liable absent strong evidence of anti-competitive conduct. His likely successor appears to possibly hold similar views of the antitrust … Continue Reading

Carl Hittinger Examines American Monopolists through the Lens of History, Politics

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, BakerHostetler, Sherman Act 2
Partner Carl Hittinger has authored a series of articles for The Legal Intelligencer that explores the history of select American monopolists by posing two fundamental questions: Why have some monopolists succeeded in gaining, maintaining and increasing monopoly power where others have failed? Why does history keep repeating itself and the basic lessons taught have not … Continue Reading

Abrams, Commins, Foix Author Article on Antitrust Suit Counterclaims

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, BakerHostetler
Partners Robert Abrams, Gregory Commins and Danyll Foix authored an article published in “The Antitrust Review of the Americas 2017,” published by Global Competition Review. Their article, “United States: Private Antitrust Litigation,” reviews counterclaims in antitrust litigation in the United States and discusses the strategies behind their use in intellectual property, franchise, distribution and other … Continue Reading

FTC Still Ramping Up Antitrust Review of Health Care Mergers

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Healthcare, Merger Review
Last month, we reported on the Federal Trade Commission’s (FTC) steady filing of injunctions to block what are effectively local mergers of small health care providers. In 2007, the FTC filed suit in Saint Alphonsus Medical Center v. St. Luke’s Health System, its first successful challenge to a hospital merger in recent history. Since then, … Continue Reading

FTC Takes Action to Block Hospital Mergers

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Healthcare, Merger Review
In the 1990s, Federal Trade Commission (FTC) enforcement actions to block mergers between health care providers were a rare phenomenon successfully obtained. In many instances, state Attorneys General filled the role of watchdog, especially since hospital mergers were relatively small and implicated local markets. Many, like the Pennsylvania Attorney General, were unable to convince the … Continue Reading

How to Avoid Antitrust Trouble in Wake of North Carolina Dental Ruling on State Action Immunity

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Exemptions & Immunities, Articles, BakerHostetler
BakerHostetler Antitrust Litigation Partners Robert Abrams, Gregory Commins, and Danyll Foix authored an article for The Antitrust Review of the Americas 2016, published by Global Competition Review. The article, headlined “United States: Private Antitrust Litigation,” analyzes emerging cases in the wake of North Carolina State Board of Dental Examiners v. Federal Trade Commission. These cases, … 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

Is That a Carrot or a Stick in Your Hand? The Third Circuit Examines the Line Between Competition and Coercion in De Facto Exclusive Dealing Agreements

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Sherman Act 2
We recently wrote about attempts to force exclusivity onto customers. But firms with large or dominant market shares often must walk a fine line between properly offering customers percentage-based discounts and improperly coercing customers into de facto exclusivity. For example, if a dominant firm offers a 25 percent price reduction to a customer that purchases … Continue Reading

Caught Between a Rock and a Hard Place: The Second Circuit to Decide Appeal From Cartel Defendants Who Argued Compliance With Chinese Law Resulted in Sherman Act Violations

Photo of Torello CalvaniBy Torello Calvani on Posted in Antitrust Litigation, Sherman Act 1
On January 28, 2016, the United States Court of Appeals for the Second Circuit heard arguments on whether the doctrines of act of state, foreign sovereign compulsion, and international comity required the reversal of a jury’s verdict against two Chinese companies that were found liable for violating Section 1 of the Sherman Act. The plaintiffs … Continue Reading

Ruling on Economic Favoritism Puts ‘NC Dental’ Back in Spotlight

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation
In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the constitutional guarantees of due process or equal protection. The court noted that such action might still violate … Continue Reading

Better Late Than Never? FTC Finally Releases Guidance on Section 5

Photo of Danyll FoixBy Danyll Foix on Posted in Sherman Act 5
After years of academic debate and internal deliberation, the Federal Trade Commission today unveiled a “Statement of Enforcement Principles” that generally describes conduct prohibited by Section 5 of the FTC Act. Section 5 gives the FTC authority to take action against “unfair methods of competition.”  Legislative history indicates that it was left to the FTC to … Continue Reading
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