April 19, 2013 – 12:43 pm
In Credit Bureau Services Inc. v. Experian Information Solutions Inc. et al, California federal district court judge Jesus G. Bernal dismissed a proposed class action accusing the credit bureau Experian Information Solutions, Inc. of conspiring to monopolize the mortgage credit data market with report reseller CoreLogic Inc. The court held that the complaint failed to satisfy the Twombly standard for alleging a conspiracy.
The complaint alleged that Experian agreed to force out CoreLogic’s competitors and in exchange CoreLogic would help Experian maintain its dominant position by inter alia staying out of the wholesale market. The court stressed that the complaint did not differ materially from one that had previously been dismissed for failing to adequately allege a conspiracy. It thus failed to meet the high Court’s plausibility standard.
The court did grant leave to the plaintiff to again amend the complaint.
In BNLfood Investment SARL v. Martek Biosciences Corp., Maryland District Judge William D. Quarles Jr. dismissed BNLfood Investment SARL’s antitrust suit against Martek Biosciences Corp., finding that BNLfood failed to prove that Martek had anti-competitive contracts that prevented BNLfood from entering the U.S. market for baby-food DHA and ARA additives. Belgium-based BNLfood accused its rival, Martek, of “locking up” all the major players in the U.S. baby-formula market by getting them to sign sole-source agreements declaring Martek their exclusive supplier of DHA and ARA. BNLfood also contended that Martek was prompting customers to sign by offering them unusually low prices and then notifying them of price hikes unless they signed a sole-source agreement. BNLfood further claimed that Martek was selling its products at a loss, but Martek argued that the price of the additives was falling due to competition from Chinese companies and other rivals.
In dismissing BNLfood’s suit, the court held that even though a reasonable jury could find that Martek’s sole-source agreements excluded competition, and that potential competitors faced high barriers to entry, including “entrenched buyer preference” for Martek’s products, BNLfood still failed to furnish enough proof to state a claim. According to the court, there were other explanations for why the formula makers had chosen to go with Martek, such as BNLfood’s higher prices, the fact that the company had not completed all the FDA-required clinical testing when it made its overtures to the manufacturers, and the formula makers’ concern that BNL’s products could be allergenic for some babies.
In Gunn v. Minton, the United States Supreme Court held that patent-related legal malpractice suits should be heard in state court. Motorola has argued to the Federal Circuit that under the Court’s Gunn rationale that appellate court lacks jurisdiction over Apple’s appeal in a suit alleging that Motorola failed to license its patents on fair, reasonable, and nondiscriminatory (FRAND) terms.
Motorola has contended that Apple’s claims, like those in Gunn, “do not require the resolution of any necessary or substantial patent issues.” Instead, they involve contract and antitrust issues. Those claims therefore should not trigger the Federal Circuit’s patent law-based jurisdiction.
Apple has countered that that Gunn involved state law claims and thus has no bearing on Apple’s federal declaratory judgment and patent misuse claims. “Only where federal patent law does not create the cause of action,” Apple has argued, “is it necessary to identify an alternative basis for jurisdiction by asking, as Gunn does, whether the claim raises a ‘necessarily disputed’ and ‘substantial’ patent law issue,”
A Wisconsin federal district court dismissed Apple’s claims, which it has appealed to the Federal Circuit. Motorola has contended that the Seventh Circuit, which normally reviews cases from the Wisconsin district courts should hear the appeal.
In DSM Desotech Inc. v. 3D Systems Corp., Northern District of Illinois Judge Sharon Johnson Coleman dismissed allegations that 3D Systems Corp. tried to monopolize the market for 3D printing that construct three-dimensional objects with lasers. Desotech, a resin manufacturer, sued its rival 3D Systems, accusing it of trying to squeeze smaller competitors out of the highly concentrated resin market by discouraging owners of its popular printers from using resins sold by third-party vendors. Desotech’s suit originally accused 3D Systems of attempted monopolization, patent infringement and other wrongdoing in a wide-ranging, nine-count complaint.
The court dismissed all but two claims from Desotech’s suit, holding that Desotech failed to show that 3D Systems illegally tied its 3D printers to the resin they used in the printers. The court further held that there is no evidence that 3D Systems has sought to limit resin variety; instead, 3D Systems licensed resin for use in its machines if the resin manufacturer submitted the resin for qualification and licensing. Finally, according to the court, there is no evidence that 3D Systems charges supracompetitive prices. Desotech has thus failed to present sufficient evidence of anti-competitive conduct in the resin aftermarket.
As part of the same ruling, the court also dismissed Desotech’s claims that 3D Systems violated Illinois state deceptive trade practices and tortiously interfered with Desotech’s prospective economic advantage.
In Gatt Communications Inc. v. PMC Associates LLC et al., the Second Circuit upheld the dismissal of a bid-rigging action against a radio dealer that sold to state and municipal entities. The court held that the plaintiff lacked antitrust standing under federal and state law.
The plaintiff alleged that the non-party radio manufacturer organized a bid rigging scheme in which it chose which of its dealers would submit the low big for each round of purchases. When Gatt attempted to buck the system by submitting an independent bid, its dealership was terminated.
For the scheme to have been unlawful, the court explained, it would have had to raise the prices paid by the purchasers. “Gatt has not been forced to pay higher prices for a product,” the court explained, “as customers who are victimized by price-fixing schemes might.”
In National ATM Council Inc. et al. v. Visa Inc. et al., District of Columbia Judge Amy B. Jackson dismissed consolidated antitrust class actions against Visa and MasterCard alleging that the two card networks conspired restrain ATM fee competition. The plaintiffs allege that the two networks blocked ATM providers from steering their customers to lower cost payment networks by offering lower rates to customers using non-Visa and non-MasterCard cards. Dismissing the complaints without prejudice the court explained that they (1) failed to meet the pleading standards for alleging an antitrust conspiracy and (2) hadn’t identified any true antitrust injury to the plaintiffs that was caused by the alleged plot. “In this case, the complaints bristle with indignation,” Judge Jackson wrote, “but when one strips away the conclusory assertions and the inferences proffered without factual support, there is very little left to consider.”
In Yates Construction Co. Inc. v. Sigma Corp. et al., New Jersey District Court Judge Anne E. Thompson dismissed, with leave to amend, a putative class action brought by indirect purchasers of ductile iron pipe fittings (DIPF) who accused McWane Inc. and other producers of fixing prices for the products.
The proposed class sued McWane, Star Pipe Products Ltd. and Sigma Corp. for participating in an illegal scheme to set the prices of all imported pipe fittings. The suit further alleges that McWane and Sigma conspired to eliminate competition by restricting the capacity of the pipe fittings produced in the U.S. through the enforcement of exclusive dealing policies.
In dismissing the suit, the court held that the indirect purchasers failed to show antitrust impact stemming from the purported anti-competitive conduct. The court found that while the class period in questioned is defined as January 2008 to the present, the offending conduct alleged in six of the plaintiffs’ 10 claims occurred in a space of time that’s shorter than that of the class period, so it is unclear whether any of the plaintiffs actually purchased DIPF during the time periods relevant to those claims. The court also found that several of the claims are directed to only one or two of the three defendants. This is problematic because the amended complaint doesn’t detail which defendant produced the pipe fittings bought by any individual plaintiff, so it’s unclear whether any putative class member actually purchased DIPF produced by any of the defendants charged under those claims.
In Lotes Co. Ltd. v. Hon Hai Precision Industry Co. Ltd. et al., Southern District of New York Judge Shira A. Scheindlin refused to dismiss a claim that Foxconn International Inc. anticompetitively refused to license standard-essential USB patents to a competitor on fair, reasonable and nondiscriminatory (FRAND) terms.
Foxconn argued that the patented technology was not essential to industry standards, and it therefore had no obligation to license on FRAND terms. It claimed that that the plaintiff had sued only to gain leverage in a Chinese patent infringement lawsuit. But the court found that defense insufficient to justify dismissal.
The European Commission has preliminarily concluded that Johnson & Johnson and Novartis violated EU antitrust law by agreeing to delay the introduction of the generic painkiller fentanyl. J&J agreed to make a reverse payment to delay entry of the generic for about 18 months. The commission will conduct additional analysis before reaching a final conclusion.
Commenting on the decision, EC antitrust chief Joaquín Almunia affirmed that the Commission will “fight undue delays in the market entry of generic medicines so that European citizens have access to affordable health care.”
In In re: Photochromic Lens Antitrust Litigation, Florida Middle District Court Magistrate Judge Elizabeth A. Jenkins denied class certification to a group of direct purchasers in multidistrict antitrust litigation (MDL) accusing Transitions Optical Inc. of impeding competition in the photochromic lenses market. The MDL followed an FTC investigation that found that Transitions maintained a monopoly position in the photochromic lens market by taking part in exclusive dealings at almost all levels of the distribution chain. In 2010, Transitions settled the case with the FTC, and agreed to stop engaging in exclusive deals that threatened the competition.
In the present MDL, the direct purchaser plaintiffs seek to represent a class of all persons or entities that purchased Transitions lenses directly from any defendant or any lab owned by Essilor or America, Inc. between March 3, 2006, and the present. According to the plaintiffs, their class consists of about 17 lens casters that purchased lenses from Transitions, about 1,500 independent wholesale labs that purchased lenses from Essilor of America Inc. — whose parent company owns a 49 percent stake in Transitions — and more than 36,000 retailers and independent eye care professionals who also bought lenses from Essilor. In denying plaintiffs’ motion for class certification, the court held that plaintiffs failed to show that there is no conflict of interest between class representatives and lens casters, and that class representatives could represent lens casters in light of the fact that some lends casters had entered into and benefited from exclusivity agreements with Transitions. The court further held that the plaintiffs failed to show that common questions predominate in the case. According to the court, plaintiffs had only demonstrated that 88 percent of lens casters were affected by Transitions’ alleged anti-competitive behavior and plaintiffs had arrived at that number through a flawed methodology.