Firm Secures Two Appellate Antitrust Affirmances in Federal Court

September 21, 2015

Firm attorneys recently scored two significant appellate wins in antitrust cases, one in the U.S. Circuit Court of Appeals for the Third Circuit and the other in the Second Circuit.

In a victory for our clients The Hershey Company and Hershey Canada Inc., the Third Circuit affirmed a summary judgment decision on behalf of Hershey in this multidistrict antitrust litigation that had been consolidated in the Middle District of Pennsylvania. The plaintiffs were direct purchasers of chocolate who had alleged that Hershey had conspired with other chocolate manufacturers to fix the price of single bars and king-sized bars between 2002 and 2007.

On September 15, 2015, the Third Circuit issued a precedential decision in favor of Hershey, explaining that, “Considering the evidence as a whole, the Plaintiffs have failed to create a reasonable inference that the Chocolate Manufacturers more likely than not conspired to fix prices in the U.S. chocolate market.”

The firm also secured a Second Circuit victory for a Fortune 50 Pharmaceutical Company in a Robinson-Patman Act case brought by a group of retail pharmacies alleging that the defendant’s pricing practices harmed their ability to compete.

Following an attempt by the plaintiffs to identify lost customers to favored purchasers, the district court had concluded that plaintiffs could prove neither competitive injury nor antitrust injury and granted summary judgment. On August 27, 2015, the Second Circuit issued a precedential opinion affirming the lower court’s ruling. In ruling in favor of defendants, the Second Circuit found that the “de minimus evidence of lost sales is insufficient to establish competitive injury.”