Distribution, Competition, and Antitrust / IP Law

You Can’t Use the Sherman Act to Wrangle an Invitation to a Political Debate

So held the District Court for the District of Columbia in Johnson v. Commission on Presidential Debates, No. 15-1580 (RMC) (D.D.C. August 5, 2016).  There, the Libertarian and Green Parties challenged decisions of the Commission on Presidential Debates to allow only the Democratic and Republican candidates for president to participate.  The plaintiffs alleged that the Commission and other defendants conspired to entrench market power, to exclude rival candidates, and to undermine competition “in the presidential debates market, the presidential campaign market, and the electoral politics market of the two major political parties by exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency.”

Not surprisingly, the district court dismissed the claims, ruling that the plaintiffs lacked both standing and antitrust standing.  The court also ruled that presidential debates and elections are not markets and do not involve commercial activity within the scope of the Sherman Act.  The Sherman Act is malleable, but not that malleable.

If You Discount It, And They Don’t Come . . . .

Researchers at my alma mater (including Steven Levitt of Freakonomics fame) recently reported the results of an interesting study: discounts offered on virtual goods (i.e., in-app purchases in connection with online video games) did not stimulate … [Continue reading]

Supreme Court lets Fourth Circuit’s Articulation of Standard for Pleading a Sherman Act Conspiracy Stand – for Now

On Monday, the U.S. Supreme Court refused to review the Fourth Circuit’s decision in SD3, LLC v. Black & Decker (U.S.) Inc., et al., 801 F.3d 412 (4th Cir. 2015), allowing the decision – and, arguably, a circuit split on the pleading standard for … [Continue reading]

Third Circuit Rejects Single-Product Bundling Claim – But Holds Its Fire on What Test to Apply

In Eisai, Inc. v. Sanofi Aventis U.S., LLC, No. 14-2017 (3d Cir. May 4, 2016), the Third Circuit addressed a mix of allegedly exclusionary conduct, including the defendant’s discounting of its anti-coagulant drug Lovenox, and held that the … [Continue reading]

Speaking About Discounted Pricing Clauses

I'm happy to be speaking on "Discounted Pricing Clauses: Drafting Enforceable and Compliant Provisions After Collins."  We'll be addressing potential pitfalls in drafting discounted pricing clauses in commercial contracts, particularly in light of … [Continue reading]

Sixth Circuit Opens a Pandora’s Box of Joint Venture Challenges

Say you’re a group of hospitals that get together under a Joint Operating Agreement.   You agree to form an integrated health system. You agree to total your net incomes into a single “network net income” that is allocated to the parties based on … [Continue reading]

Maryland Lawsuit Shows Resale Price Maintenance Claims Are Not Dead

On March 4, 2016, the Maryland Attorney General announced a civil suit for alleged unlawful resale price maintenance against Johnson & Johnson Vision Care Inc. (“J&J”) in connection with its sale of contact lenses. The Maryland AG alleges … [Continue reading]

Antitrust Claims Against “Anti-Patent Troll” Dismissed

I previously covered the case of Cascades Computer Innovation LLC v. RPX Corp., (N.D. Cal.) (Gonzalez Rogers, J.).  As I wrote in connection with the court's refusal to dismiss the plaintiff's amended complaint in December 2013: Cascades is a … [Continue reading]

Patent Law Can Stop Product Resale/Reuse

Most people know that inkjet printers are pretty cheap; the real money is in the ink cartridges.  Not surprisingly, printer/cartridge manufacturers often want to stop the resale of used ink cartridges (which can be refilled by third-party ink … [Continue reading]

An Unaccepted Offer of Judgment Won’t Moot a (Class) Claim

In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), the Supreme Court held that an unaccepted offer of judgment under Federal Rule of Civil Procedure 68 does not moot a named plaintiff’s claim, and, therefore, the named plaintiff can still seek … [Continue reading]

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