Distribution, Competition, and Antitrust / IP Law

Archives for April 2014

Digital Content Producers (Still) Lack Antitrust Standing to Sue Wireless Carriers Over MMS

In a prior post, I covered the district court’s decision in Davis v. AT&T Wireless Services, Inc.  There, the Central District of California dismissed antitrust claims against various wireless telephone companies and other defendants brought by a purported class of commercial producers of multimedia content. Plaintiffs claimed that when the wireless carriers created the Multimedia Messaging Service standard for sending multimedia data files, they agreed not to implement digital rights management measures that would have protected materials copyrighted by third parties. Allegedly, the carriers’ motive was to increase revenues and profits from the use of MMS. The court ruled that the plaintiffs had not alleged antitrust injury, and therefore lacked antitrust standing.

On April 17, 2014, in an unpublished, two-page opinion, the Ninth Circuit affirmed the dismissal of the antitrust claims, agreeing that plaintiffs lack standing.

Perhaps obvious moral of the story: in evaluating potential antitrust claims on either side of the “v.,” it’s vital to consider whether the plaintiffs have standing to assert them.

On the Difficulty of Dauberting Antitrust Economists

It’s difficult.  Despite a valiant effort, the defendants in In re: High-Tech Employee Antitrust Litigation, 2014 U.S. Dist. Lexis 47181 (N.D. Cal. Apr. 4, 2014) (Koh, J.), failed to exclude the expert testimony of plaintiffs’ economist, who has opined on the purported wage impact of the defendants’ alleged bilateral agreements not to cold call each other’s employees.

I won’t cover the complex statistics and econometrics here, but if you’re interested, I’m attaching a copy of the decision (click the link).

In re High-Tech Employee Antitrust Litigation

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