Melissa R. Ginsberg, Counsel

On March 26, 2018, the Supreme Court heard argument in China Agritech, Inc. v. Resh (No. 17-432), a case in which the justices will determine whether a plaintiff whose otherwise untimely claim has been tolled by the rules articulated in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) may bring a putative class action, or is limited to filing an individual claim.  In American Pipe and Crown, Cork, the Supreme Court held that the filing of a class action complaint tolls the statute of limitations for persons that fall within the proposed class definition until the court denies the motion for class certification.  In American Pipe, this rule rendered timely the claims of plaintiffs who sought to intervene in the pending action after the court denied class certification, 414 U.S. at 561, and in Crown, Cork, the Court held that tolling applied to plaintiffs who initiated individual actions after the district judge issued the decision denying class treatment, 462 U.S. at 354. 

On March 16, 2018, Assistant Attorney General for the Antitrust Division Makan Delrahim gave a speech at the University of Pennsylvania Law School titled “The ‘New Madison’ Approach to Antitrust and Intellectual Property Law.”  The speech provided insight concerning his views on the role of antitrust law in the field of intellectual property, and the Antitrust Division’s priorities under his leadership.  AAG Delrahim explained four basic premises that govern how he believes antitrust enforcement should impact intellectual property law; in short, his view is that patent rights are a boon to consumers and competition and antitrust law should not stand in the way of patent-holders exercising their rights.

Last month, we reported on a partial settlement in an antitrust case alleging that entities within the Duke and the University of North Carolina systems agreed not to hire each other’s medical personnel unless the lateral hire involved a promotion.  The Court has now granted in part the plaintiff’s motion to certify a class.

As the college basketball season heats up, bitter rivals Duke and the University of North Carolina stand accused of maintaining a cozier (and illegal) relationship off the court.  UNC, the UNC School of Medicine, and the UNC Health Care System (together the “UNC Defendants”) recently entered into a settlement agreement with a class of individuals employed by the UNC Defendants or of Duke-affiliated defendants (“the Duke Defendants”) between 2012 and 2017 to resolve an action alleging that the Duke Defendants and UNC Defendants agreed not to hire each other’s medical personnel unless the lateral hire involved a promotion.  The settlement enjoins the UNC Defendants from agreeing to refrain from soliciting, hiring, or otherwise “poaching” employees of any other company or organization.

For several years, the Antitrust Division’s investigations have been increasingly global in scope.  Acting Assistant Attorney General Andrew Finch made clear that trend will continue in remarks at a conference on International Antitrust Law and Policy held in New York earlier this month.

On August 29, 2017, the D.C. Circuit affirmed the district court’s decision dismissing a suit filed by 2012 third-party presidential candidates Gary Johnson and Jill Stein, their running mates, their campaigns, and the parties they represented (together, “Plaintiffs”) against the Commission on Presidential Debates.  Plaintiffs alleged that Johnson and Stein were improperly excluded from nationally televised general-election presidential debates in violation of the Sherman Act.

Last week Markus Meier, the Acting Director of the Bureau of Competition at the Federal Trade Commission, gave testimony to the House Judiciary Committee concerning “Antitrust Concerns and the FDA Approval Process.”

In a split decision, on April 28, 2017, the Court of Appeals for the District of Columbia Circuit affirmed the district court’s decision to issue a permanent injunction blocking the merger of Anthem, Inc. and Cigna Corp., two of the nation’s largest health insurance providers.  As we’ve previously written, in July 2016, the Department of Justice and attorneys general from multiple states sued to halt the merger pursuant to Section 7 of the Clayton Act, alleging that it would substantially lessen competition in the market for employers purchasing insurance for more than 5,000 employees ( “national accounts”) in multiple states and employers purchasing insurance for more than 50 employees (“large group employers”) in Richmond, Virginia.  After a six-week bench trial, the district court enjoined the merger on the basis of its likely substantial anticompetitive effects in both markets.

The Antitrust Division recently issued its 2017 annual spring update.

The update emphasizes the Division’s recent litigation victories, particularly in the merger context.  In his introductory remarks, Assistant Attorney General Brett Snyder noted the Division’s litigation docket is more active—on both the civil and criminal sides—than it has been in recent years.

As our loyal readers know, on May 23, 2016, the Second Circuit issued a decision in the In re: LIBOR-Based Financial Instruments Antitrust Litigation vacating the District Court’s prior decision dismissing one case in this consolidated action.  Our analysis of that decision is available here.  Notably, however, the Second Circuit declined to rule on whether the plaintiffs (the “Plaintiffs”) are “efficient enforcers” of the antitrust laws and remanded that question for the District Court’s consideration.

The Antitrust Division recently issued its 2016 annual spring update. Taking advantage of modern technology, Bill Baer—now the Acting Associate Attorney General serving in the DOJ’s third-highest ranking position—prepared video remarks for your viewing pleasure.  (Still, most of the Division’s updates were included in written commentary.)  Renata B. Hesse now serves as the Principal Deputy Assistant Attorney General responsible for overseeing the Antitrust Division.

Courts continue to evaluate the degree to which “reverse payments” are permitted post-Actavis.  In the latest of these decisions, issued on February 22, 2016, the First Circuit held that non-cash payments may run afoul of the antitrust laws.

Just over two months ago, the United States Department of Justice made waves when a memorandum from Deputy Attorney General Sally Quillian Yates (the “Yates Memo”) announced an increased focus on individual accountability to combat corporate misconduct.  The Yates Memo explains DOJ’s view that individual accountability is important because it deters future illegal activity, incentivizes changes in corporate behavior, ensures the proper parties are held responsible for their actions, and promotes the public’s confidence in the justice system. 

On July 16, the European Court of Justice issued a decision stating that standard essential patent (“SEP”) owners that seek injunctions against companies willing to license intellectual property on fair and reasonable terms may be illegally abusing their dominance. The dispute between Huawei Technologies Co. Ltd. (“Huawei”) and ZTE Corp. (“ZTE”) arises from Huawei’s patent on Long Term Evolution (“LTE”), a technology that is used in mobile phones and was developed by the European Telecommunications Standards Institute (“ETSI”).  

On March 29, 2015, StubHub, Inc. brought an antitrust action against the Golden State Warriors LLC (the “Warriors”) and Ticketmaster, L.L.C. (“Ticketmaster”), alleging that they monopolized the ticket resale market by forcing Warriors fans to use only secondary ticket exchange services provided by the Warriors, and excluding competing secondary ticket exchange services.  The action is pending before the Honorable Vince Chhabria in the Northern District of California.  

On December 5, 2014, the Official Journal of the European Union published the European Commission’s new directive on antitrust damages in civil actions (the “Directive”).  The Directive went into effect on December 26, 2014.

The long trial in United States v. American Express has come to an end: on September 18, 2014, the parties exchanged post-trial briefing and on October 9, 2014, the court held oral argument. News reports suggest that the Court (Judge Garaufis in the Eastern District of New York) was looking for ways to avoid court intervention (including urging the parties to settle) and suggest that, if it did find an antitrust violation, the Court would consider holding additional proceedings to determine the appropriate remedies.

Our regular readers know that we have been carefully following the developments in Motorola Mobility LLC v. AU Optronics Corp., currently pending in the Seventh Circuit.  The case addresses the reach of the Foreign Trade Antitrust Improvements Act (“FTAIA”), and will join recent decisions issued by the Second Circuit and Ninth Circuit earlier this year.

We’ve previously written about Motorola Mobility v. AU Optronics, currently pending in the Seventh Circuit.  As many of you know, the Seventh Circuit vacated its March 2014 decision that the higher prices for mobile phones Motorola sold in the United States did not “give rise” to antitrust claims and that Motorola could not show a “direct” effect on U.S. commerce sufficient to satisfy the Foreign Trade Antitrust Improvements Act (“FTAIA”).  Briefing is currently underway, and the case is scheduled for oral argument on Thursday, November 13.

As we noted earlier this month, one factor that may contribute to the increase in criminal antitrust fines over the past ten years is the Antitrust Division’s focus on anticompetitive conduct that is international in scope.  Indeed, the Antitrust Division’s chart listing Sherman Act violations yielding a corporate fine of $10 million or more shows that nearly all of the investigations resulting in fines greater than $10 million are international.

Last week we posted a discussion concerning effective antitrust corporate compliance programs, and provided some factors that in-house counsel should consider in developing compliance programs governing employees’ communications with competitors and dealings with customers and suppliers.  Today we continue that discussion by addressing the relevant factors in compliance programs concerning monopolization and dominance and price discrimination.

On August 8, 2014, Judge Koh denied a motion for preliminary approval of a proposed $324.5 million class action settlement with Adobe, Apple, Google, and Intel in the No-Poach litigation pending in the Northern District of California, finding that "the total settlement amount falls below the range of reasonableness" because "there is ample evidence of an overarching conspiracy" and "[c]lass members would receive an average of approximately $3,750 from the instant settlement if the Court were to grant all requested deductions and there were no further opt-outs." 

Over the past ten years, criminal antitrust fines have increased dramatically:  they totaled only $107 million in fiscal year (“FY”) 2003, but increased to a high of $1.14 billion in FY-2012 and remained relatively steady at $1.02 billion in FY-2013.  As criminal fines increase, companies face increasing exposure for conduct that allegedly runs afoul of the U.S. antitrust laws. What is driving the marked increase in potential penalties?