Distribution, Competition, and Antitrust / IP Law

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]

Twombly’s Teeth

Occasionally a would-be plaintiff (or counter-claimant) asks whether one can file an antitrust claim and then get some discovery to back it up. This is not a good game plan. In Eastman v. Quest Diagnostics Inc., 2016 U.S. Dist. LEXIS 1282 (N.D. … [Continue reading]

Happy Holidays

Blogging will resume after New Year's. … [Continue reading]

Plaintiffs’ Antitrust Experts Are Dauberted More Often

According to a new study by the Law & Economics Center at George Mason University (as reported in MLex), 59% of the time, antitrust defendants succeeded on some aspect of their Daubert motions in class action cases, while antitrust plaintiffs won … [Continue reading]

Ninth Circuit Rejects Irrational Market Allocation Claim

In Stanislaus Food Products Co. v. USS-Posco Industries, No. 13-15475 (9th Cir. Oct. 13, 2015), the Ninth Circuit affirmed a defense summary judgment in a case alleging that U.S. Steel and its joint venture conspired to allocate the sale of “hot band … [Continue reading]

The NCAA Ruling : How Far Should Courts Go In Redefining Market Rules?

In O’Bannon v. National Collegiate Athletic Association, Case No. 14-16601 (9th Cir. Sept. 30, 2015), the Ninth Circuit applied the Rule of Reason to the NCAA’s amateurism rules, and concluded that while the NCAA can ban cash compensation to student … [Continue reading]

Obama Antitrust Not Much More Aggressive Than Bush?

That's what the Wall Street Journal reports, citing data from the FTC and DOJ, reflecting that the antitrust agencies challenged 2.9% of mergers reviewed between 2009 and 2014, vs. 2.61% that they challenged between 2001 and 2008.  Antitrust … [Continue reading]

Marginal Evidence of Customer Diversion Won’t Support a Price Discrimination Claim

In Cash & Henderson Drugs, Inc v. Johnson & Johnson, Case No. 12-4689 (2nd Cir. Aug. 27, 2015), the Second Circuit upheld a summary judgment in favor of defendant pharmaceutical manufacturers accused of price discrimination. Retail … [Continue reading]

Are Mutual Index Funds Anti-Competitive?

They may be, according to a thought-provoking article by Harvard Law School Professor Einer Elhauge entitled “Horizontal Shareholding as an Antitrust Violation” (July 21, 2015), available here. In a nutshell, Professor Elhauge’s argument … [Continue reading]

Milk expiration dates and clever cartels

The Planet Money podcast this week has a story about the Greek economy.  According to the podcast, there is a Greek milk producer "cartel."  Of course cartels are unlawful in Europe, just as they are in the U.S.  So it seems that Greek milk producers … [Continue reading]

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