Fifth Circuit

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Fifth Circuit decisions

Jurisdiction to review FTC orders

Louisiana Real Estate Appraisers Board v FTC

In Louisiana Real Estate Appraisers Board v FTC, 1 the Louisiana Real Estate Appraisers Board (the Board) asked the Court to review a Federal Trade Commission (FTC) order granting partial summary decision on state-action defenses. The Board is a state agency tasked with licensing and regulating commercial and residential real estate appraisers and appraisal management companies. It adopted a rule that required licensees ‘compensate fee appraisers at a rate that is customary and reasonable for appraisal services performed in the market area of the property being appraised and as prescribed by La. Stat. Ann. § 34:3415.15(A),’ and prescribed three ways by which a licensed appraiser management company could establish a rate that is customary and reasonable. 2 The FTC ‘issued an administrative complaint against the Board, alleging that it had “unreasonably restrain[ed] competition by displacing a marketplace determination of appraisal fees.”’ 3 The FTC alleged that because ‘Rule 31101 established an exclusive list of ways by which appraisal management companies could determine compensation for appraisers, . . . the Rule “prevents [appraisal management companies] and appraisers from arriving at appraisal fees through bona fide negotiation and through the operation of the free market” . . . [and] that the Board’s enforcement of the Rule unlawfully restrained price competition.’ 4 The Board argued that it was immune from federal antitrust liability under state-action doctrines. After the Governor of Louisiana added oversight to the Board and the Board re-issued a revised rule following the new procedures, the Board moved to dismiss the complaint. The same day, however, the FTC moved for partial summary decision on the Board’s state-action defenses. The FTC, acting in its adjudicatory role, denied the motion to dismiss and granted partial summary decision. 5

On appeal, the Fifth Circuit found that it did not have jurisdiction to review the FTC’s order because ‘[t]he jurisdiction of this Court to review an order of the Federal Trade Commission . . . arises only from a cease and desist order entered by the Commission’ under the Federal Trade Commission Act (FTCA). 6 Rejecting the Board’s argument that the Court had jurisdiction under the collateral-order doctrine, the Fifth Circuit found that ‘Congress . . . expressly limited our jurisdiction to review of cease-and-desist orders.’ 7 The Court explained that while it ‘agree[d] that the collateral-order doctrine may apply to judicial review of some administrative decisions,’ such as conclusive agency decisions under the Administrative Procedure Act or the Mine Act, it ‘disagree[d] that courts of appeals may intervene in administrative proceedings as a general matter.’ 8 The Fifth Circuit made clear that courts ‘must look to the text of the statute at hand to determine whether Congress has authorized us to review the agency’s decision.’ 9 While other circuits had ‘taken a different approach when considering whether the collateral-order doctrine applies to similarly restrictive statutes,’ the Court noted that they had not specifically considered ‘whether the language of the FTCA can be interpreted to allow appellate review of collateral orders.’ 10

This case is significant because it makes clear that, at least in the Fifth Circuit, courts do not have jurisdiction to review FTC decisions under the FTCA unless they are cease-and-desist orders, but leaves open the possibility that courts have jurisdiction to review other types of administrative decisions under the collateral-order doctrine.

Enforcing arbitration clauses in antitrust matters

Archer & White Sales, Inc v Henry Schein, Inc

In Archer & White Sales, Inc v Henry Schein, Inc, 11 the plaintiff, a family owned company that distributes, sells and services dental equipment, sought damages and injunctive relief from the defendants, which distribute and manufacture dental equipment, claiming that they ‘entered into an anticompetitive agreement to restrict Archer’s sales and to boycott Archer’ in violation of federal and Texas antitrust law. 12

The defendants moved to compel arbitration pursuant to a contract between the plaintiff and one of the defendant’s predecessors-in-interest, which contained the following arbitration clause:

Disputes. This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property of Pelton & Crane), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [(AAA)]. The place of arbitration shall be in Charlotte, North Carolina. 13

Initially, the magistrate judge granted a motion to compel arbitration, concluding that the question of arbitrability of the claims itself belonged to an arbitrator. The district court disagreed, holding that the arbitrability question was one for the courts. On appeal, the Fifth Circuit determined that it need not reach the issue of whether the arbitration provision delegated the issue of arbitrability because the ‘wholly groundless’ exception applied. The exception, which was operative in several circuits at the time, held that a court was not required to submit the issue of arbitrability to an arbitrator where the assertion of arbitrability was ‘wholly groundless.’ The Supreme Court reversed, holding that ‘the “wholly groundless” exception’ is not ‘consistent with the Federal Arbitration Act . . . . When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.’ 14 In such circumstances, the Supreme Court noted, ‘a court possesses no power to decide the arbitrability issue . . . even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.’ 15 ‘Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator.’ 16 The Court did not express a view on whether the contract delegated the arbitrability question, but remanded to the Fifth Circuit to make that determination, noting that ‘courts “should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.”’ 17

On remand, the plaintiff contended that there was ‘no clear and unmistakable evidence that the parties delegated arbitrability disputes to an arbitrator,’ because ‘[t]he way the agreement is written, . . . the AAA rules (and resulting delegation) only apply to disputes that fall outside of the arbitration clause’s carve-out for actions seeking injunctive relief.’ 18 The defendants, however, argued that the ‘agreement’s incorporation of the AAA rules ends the inquiry’ and ‘the carve-out for actions seeking injunctive relief does not trump the parties’ delegation.’ 19 The Court agreed with the plaintiff, holding that ‘the placement of the carve-out here is dispositive’: ‘The most natural reading of the arbitration clause . . . states that any dispute, except actions seeking injunctive relief, shall be resolved in arbitration in accordance with the AAA rules. The plain language incorporates the AAA rules – and therefore delegates arbitrability – for all disputes except those under the carve-out.’ 20

After determining that the agreement did not ‘evince . . . a “clear and unmistakable” intent to delegate arbitrability,’ 21 the Fifth Circuit turned to whether the plaintiff’s claims were subject to the arbitration clause. The Court noted that ‘the arbitration clause creates a carve-out for “actions seeking injunctive relief.” It does not limit the exclusion to “actions seeking only injunctive relief,” nor “actions for injunction in aid of an arbitrator’s award.” Nor does it limit the carve-out to claims for injunctive relief.’ 22 Though the defendants were correct that the clause would permit the plaintiffs to avoid arbitration ‘by adding a claim for injunctive relief,’ that did not change the clause’s plain meaning and the court cannot ‘rewrite the unambiguous arbitration clause.’ 23 Because the plaintiff’s action sought injunctive relief, it fell within the exception. 24

The defendants raised questions about whether the plaintiff was still entitled to injunctive relief given that the parties’ contractual relationship ended during the pendency of the litigation. The plaintiff argued that ‘other circuits have upheld injunctive relief in private antitrust actions even where the specific conspiracy alleged has ended.’ 25 The Court did not reach this question, holding that ‘the arbitrability question turns only on whether the existing action as a whole constitutes an “action seeking injunctive relief.”’ 26

The Supreme Court decision in this case resolved a circuit split and made clear that the ‘wholly groundless’ exception is not consistent with the Federal Arbitration Act. In doing so, the Court focused lower courts on the language of the arbitration provision to determine whether the parties intended to delegate the question of arbitrability to an arbitrator under a clear and unmistakable evidence standard. The remand decisions in Archer & White Sales, Inc will serve as important precedent for parties seeking to enforce arbitration provisions in future antitrust cases.

Pleading predatory pricing claims

Clean Water Opportunities, Inc v Willamette Valley Co

In Clean Water Opportunities, Inc v Willamette Valley Co, 27 the Fifth Circuit affirmed the district court’s order dismissing the plaintiff’s federal and state antitrust claims against The Willamette Valley Company. The plaintiff had only recently started manufacturing patch – a polyurethane material used to fill knot holes in plywood – for plywood manufacturers. 28 Until the plaintiff entered the market, the defendant was the sole seller of patch in the market. Shortly after entering the market, the plaintiff entered into a production contract with MARTCO, a Louisiana-based plywood manufacturing company, to supply patch for several of its manufacturing lines for five years. 29 The deal fell through, however, when the defendant offered MARTCO a substantial discount on all the non-patch products it sold to MARTCO in exchange for an agreement to buy all its patch from the defendant. The defendants allegedly thwarted the plaintiff’s efforts to secure business from two other plywood manufacturers by offering similar discounts. As a result of this lost business, the plaintiff was no longer financially viable and entered into a contract to sell its assets to the defendant. The agreement included a non-compete clause. The plaintiff brought suit, alleging that the defendant ‘had engaged in predatory pricing in violation of the Sherman Act when it offered discounts on non-patch products to’ its would-be ‘customers, because these discounts resulted in a price for patch that was effectively below Willamette’s average variable costs for producing patch. It also alleged that Willamette illegally established a monopoly, in violation of state and federal law, and had purchased [the plaintiff]’s assets to maintain its monopoly.’ 30

With respect to the predatory pricing claim, the Court explained that ‘a plaintiff must plausibly allege that “1) the prices complained of are below an appropriate measure of the alleged monopolist’s costs and 2) that the alleged monopolist has a reasonable chance of recouping the losses through below-cost pricing.”’ 31 For the first element, ‘a plaintiff must sufficiently plead that the alleged monopolist priced its goods below its average variable costs for producing those goods.’ 32 The plaintiff alleged that, although the defendant did not price patch below average variable cost, it effectively did so when it substantially discounted non-patch products to induce customers to purchase its patch. The Court dismissed the claim, finding that the plaintiff’s conclusory allegations that the defendant ‘offered discounts to several plywood manufacturers that “were substantial and represented a benefit below Willamette’s cost to produce patch”’ were insufficient to state a claim. 33

The plaintiff also alleged that the defendant illegally monopolized the patch market in violation of section 2 of the Sherman Act and an analogous Louisiana law. The plaintiff argued that even if the defendant’s pricing scheme was not predatory, it nonetheless violated section 2 because it was practiced by a monopolist and had the effect of maintaining that monopoly. 34 The Court found that the plaintiff failed to allege facts to support an inference of exclusionary conduct because the defendant’s conduct had a rational business purpose: it ‘was faced with the prospect of losing business to a competitor’ and ‘to keep that business, it offered discounts on its other products.’ 35 The discounts were not ‘so substantial as to cross the line into economic irrationality,’ because they ‘resulted in an effective selling price.’ 36 As a result, the Court affirmed the dismissal of the plaintiff’s section 2 claim, and its corresponding state law claim.

Given that Clean Water is an unpublished decision, it is not binding precedent. 37 It is persuasive authority and guidance on pleading predatory pricing and monopolization claims.

District court decisions

Article III and antitrust standing

Kjessler v Zaappaaz, Inc

Kjessler v Zaappaaz, Inc 38 is a nationwide direct-purchaser antitrust lawsuit involving an alleged conspiracy to fix prices of certain customized promotional products (CPPs) in violation of section 1 of the Sherman Act. 39 The plaintiffs alleged that the defendants formed a cartel to fix the prices of three CPPs: customized silicone wristbands, customized lanyards and customized pin buttons. The defendants moved to dismiss the plaintiffs’ lanyard price-fixing claims for lack of article III standing and moved to dismiss under Rule 12(b)(6) for failure to state a claim. 40

With respect to standing, the plaintiffs acknowledged that none of them bought a lanyard from any defendant, but contended they nonetheless had standing to pursue class claims on behalf of lanyard purchasers because they ‘sufficiently pleaded a single conspiracy covering all three relevant CPPs’ and the price fixing of all three CPPs implicated the ‘same set of concerns.’ 41 The court found that while it was ‘undisputed that Plaintiffs have standing to assert claims based on their own alleged injuries – i.e., the economic harm from purchasing over-priced wristbands or pin buttons,’ because ‘no named plaintiff alleges he or she was personally injured by Defendants’ alleged lanyard price fixing, “none may seek relief on behalf of himself or any other member of the class” for Defendants’ lanyard price fixing.’ 42 The court noted that ‘class representatives must suffer the “same” injury as class members – not just a similar injury – to have standing to maintain a class claim.’ 43 The court refused to adopt the Second Circuit’s ‘same set of concerns’ approach, which provided that ‘a plaintiff has class standing if he plausibly alleges (1) that he personally has suffered some actual . . . injury as a result of the putatively illegal conduct of the defendant, and (2) that such conduct implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class by the same defendants.’ 44 The court instead adhered to Fifth Circuit precedent, which ‘is hostile to [the] “same set of concerns” formulation, repeatedly holding that class representatives must “possess the same interest and suffer the same injury” as the class members.’ 45 Because no plaintiff alleged a personal injury from the defendants’ alleged lanyard price-fixing, the court dismissed the plaintiffs’ lanyard price-fixing claims for lack of article III standing.

The defendants also moved to dismiss the plaintiffs’ complaint for failing to ‘allege facts suggesting every aspect of the alleged price fixing conspiracy is plausible.’ 46 More specifically, they argued that the complaint alleged ‘“discrete conspiracies,” not one vast industry-wide conspiracy among Defendants to fix prices on three different CPPs’; the complaint was focused only on wristbands; their criminal ‘plea agreements do not specifically mention pin buttons’; and the complaint did not allege the ‘custom wristband defendants’ sold pin buttons. 47 The court found, however, that the defendants were contesting ‘“not whether any conspiracy existed, only how far it reached” – a question “of fact” that “cannot be resolved in the present procedural posture, where the court tests only the sufficiency of the pleadings.”’ 48 Looking at the plaintiffs’ allegations ‘holistically,’ the court held that ‘the Complaint states a plausible price-fixing conspiracy claim covering wristbands and pin buttons against all Defendants.’ 49 While the text message and social media platform conversations quoted in the complaint only expressly mentioned customized wristbands, the court noted that ‘the Complaint must be liberally construed in Plaintiffs’ favor,’ and ‘allegations sufficient to demonstrate a price fixing conspiracy related to certain products or practices within an industry permit an inference of a larger conspiracy covering other products or practices’ at the motion to dismiss stage. 50 Moreover, the defendants’ criminal guilty plea agreements, ‘where Defendants individually admit to general CPP price fixing with multiple competitors, are evidence of these Defendants’ own acknowledgement of the existence of a conspiracy covering both wristbands and pin buttons.’ 51 Finally, the court found that the complaint alleged several facts that suggested the existence of a broad and overarching price-fixing conspiracy, including a history of intense price competition that ceased following a civil settlement between the parties, a common motive to conspire given declining profits in the industry, several opportunities to exchange information, and a concentrated market conducive to collusion. 52 As a result, the plaintiffs satisfied their pleading burden and the court denied the defendants’ motion to dismiss for failure to state a claim.

TravelPass Group, LLC v Caesars Entertainment Corporation

In TravelPass Group LLC v Caesars Entertainment Corporation, 53 the plaintiffs – TravelPass Group, LLC and its predecessor or related entities, Reservation Counter, LLC and Partner Fusion, Inc – filed an antitrust case against Caesars Entertainment Corporation, Choice Hotels International, Inc, Hilton Domestic Operating Company, Inc, Hyatt Corporation, Marriott International, Inc, Red Roof Inns, Inc, Six Continents Hotels, Inc and Wyndham Hotel Group, LLC, alleging a horizontal conspiracy among the hotel chains and gatekeeper online travel agencies (gatekeeper OTAs) such as Expedia to eliminate interbrand competition for keyword internet searches. The plaintiffs were affiliates of the gatekeeper OTAs, which obtained access to the defendant hotels’ inventory via the gatekeeper OTAs. Hilton, Hyatt, Marriott, Red Roof, Six Continents and Wyndham jointly filed a motion to dismiss asserting that TravelPass did not suffer injury-in-fact as a result of the horizontal agreement among the hotels and lacked antitrust standing to challenge the ‘primary’ conspiracy; the plaintiffs lacked antitrust standing to challenge the ‘secondary’ conspiracy between the hotels and the gatekeeper OTAs because if any injury to TravelPass flowed from the enforcement of distribution contracts between the hotels and the gatekeeper OTAs, any such injury is not the type of injury the antitrust laws were intended to prevent; and the plaintiffs failed to allege facts sufficient to support the existence of either the primary or secondary conspiracy. 54

With respect to standing, the magistrate judge viewed the plaintiffs’ allegations ‘holistically,’ rather than separately addressing the primary horizontal conspiracy among the hotels and the secondary conspiracy among the hotels and gatekeeper OTAs. 55 The court concluded that the plaintiffs sufficiently alleged injury-in-fact because the ‘allegations, if true, indicate TravelPass has suffered harm to its “business or property” as a result of Defendants’ alleged actions. According to Plaintiffs, TravelPass competed directly with Defendants for years, until Defendants conspired with one another to eliminate branded keyword competition’ and the defendant hotels ‘cut off TravelPass’ access to inventory and decreased TravelPass’s value.’ 56

The court similarly found the plaintiffs adequately alleged antitrust injury. The court first explained that while ‘the Fifth Circuit has noted consumers and competitors are the parties often injured by the harm of competition caused by alleged antitrust violations,’ it has ‘not held as a matter of law that antitrust standing is limited to competitors and consumers exclusively.’ 57 As a result, even if the defendants were correct that TravelPass is not a competitor, the court found that was not determinative. 58 The court also rejected the defendants’ argument that there was no alleged harm to competition that resulted in injury to TravelPass, explaining that while ‘[i]njury to competition’ is ‘often a necessary component to substantive liability,’ it ‘need not be pleaded for a plaintiff’s antitrust claims to survive a motion to dismiss.’ 59 Rather, ‘in the standing context, injury “should be viewed from the perspective of the plaintiff’s position in the marketplace, not from the merits-related perspective of the impact of a defendant’s conduct on overall competition.”’ 60 The court concluded that TravelPass’s alleged losses and competitive disadvantage fell within the ‘conceptual bounds of antitrust injury.’ 61 Moreover, TravelPass also alleged that the defendants’ conduct ‘led to a decrease in information to consumers, an increase in the transaction and other costs for consumers seeking to book a hotel, which inevitably leads to overall higher prices and reduced quality for consumers.’ 62

The defendants also moved to dismiss the complaint for failure to ‘plead facts from which any conspiracy can be inferred, contending the complaint does not contain allegations “directly evidencing an actual agreement among Defendants not to bid on each other’s branded keywords, relying instead on conclusions and innuendo.”’ 63 Relying on Kjessler, 64 the court emphasized again ‘that Plaintiffs’ allegations should be viewed holistically.’ 65 While the defendants contended the plaintiffs had ‘not made any allegations that place the parallel conduct in a context suggestive of conspiracy’ and that there were ‘independent incentives of each defendant to adopt the challenged provisions absent any agreement with its competitors,’ the court concluded that the ‘complaint includes numerous non-conclusory factual allegations that go beyond allegations of mere parallel conduct.’ 66 The plaintiffs had alleged in detail why the defendants needed to conspire, referenced an email chain discussing the alleged conspiracy, alleged economic motivations indicating acting unilaterally would have been against economic self-interest, and alleged an ‘abrupt change in bidding.’ 67 The court concluded the plaintiffs had ‘offered sufficient additional factual enhancements to move their claims beyond the “conceivable” to the “plausible.”’ 68

Hilton, Hyatt, Marriott, Red Roof, Six Continents and Wyndham did not object to the magistrate judge’s findings and conclusions, which the district court adopted. 69

Class certification

Maderazo v VHS San Antonio Partners, LP

Registered nurse plaintiffs alleged that owners or operators of hospital systems conspired to depress the wages of registered nurses in San Antonio, Texas, through explicit agreements or exchanges of wage information in violation of section 1 of the Sherman Act and section 4 of the Clayton Act. 70 The plaintiffs sought to certify a class of registered nurses and the court found that they did not satisfy the requirements under Federal Rule of Civil Procedure 23(b)(3) because they failed to demonstrate ‘that antitrust impact/injury, which hinges on a causal link to the violation, can be shown with common evidence on a classwide basis.’ 71

The court emphasized that in private party litigation under section 4 of the Clayton Act, the ‘causal link between the violation and the injury may not be based on speculation, but rather must be proved “as a matter of fact and with a fair degree of certainty,”’ noting that there is ‘no road to recovery . . . unless there is evidence of a causal connection between the specific antitrust violation and the alleged injury to the plaintiffs.’ 72 The court excluded testimony from the plaintiffs’ expert, finding that his opinions did not address the causal link between the conspiracy and registered nurse wages. In rejecting the opinion, the court found the expert made broad assumptions about injury, but ‘made no effort to trace the impact of the alleged agreement through any of the actions of any of the defendants’ to the alleged impact or injury. 73 The court emphasized that the ‘Circuit places great importance on the “impact” element of any antitrust cause of action’ in making the determination as to predominance. 74 Despite the plaintiffs’ argument to the contrary, a showing of causation is required for both ‘rule of reason’ and per se antitrust claims. 75 Because the plaintiffs failed to demonstrate antitrust impact or injury, the court denied their motion for class certification and also granted the defendant’s motion to exclude the expert testimony of the plaintiffs’ expert in part.

Patent-antitrust liability

Chandler v Phoenix Services

In Chandler v Phoenix Services, 76 the enforcement of United States Patent No. 8,171,993 (’993 patent) was ‘at the heart’ of the antitrust litigation. 77 The suit was brought by Ronald Chandler, Chandler Manufacturing, LLC, Newco Enterprises, LLC and Supertherm Heating Services, LLC against Phoenix Services, LLC (Phoenix) and Phoenix CEO Mark H Fisher (Fisher), and was related to several patent-infringement suits initiated by Heat On-The-Fly, LLC (HOTF), a Phoenix subsidiary. 78 The Federal Circuit had held that HOTF asserted its ’993 patent in bad faith and the ’993 patent was unenforceable due to inequitable conduct. Following the Federal Circuit’s ruling in the patent litigation, the plaintiffs filed this antitrust suit alleging that the defendants ‘committed Sherman Act § 2 attempted-monopolization violations amounting to either (1) Walker Process patent fraud or (2) sham patent litigation.’ 79 The defendants moved to dismiss all counts. 80

With respect to the plaintiffs’ Walker Process patent fraud claim, the defendants argued that the plaintiffs ‘failed to plead facts sufficient to support a finding that there was a “dangerous probability” of HOTF successfully obtaining monopoly power’ because the defendants at most possessed only 23 per cent of the market in 2013. 81 The court noted, however, that the 23 per cent figure ‘represents the market share that HOTF and their licensees actually occupied in the in-line frac water-heating market, not the market share they could occupy through the allegedly fraudulent enforcement of the ’993 patent.’ 82 ‘By taking actions like calling non-licensed competitors’ customers to assert the ’993 patent, initiating lawsuits for the infringement of the ’993 patent, and posting the ’993 patent on Phoenix’s website, HOTF could plausibly occupy the full 62–66% of the market that used the invention claimed in claim 1 of the ’993 patent.’ 83 Moreover, the court found that the complaint also contained factual allegations that HOTF was claiming closer to 100 per cent of the market in 2015. 84 As a result, the court ‘reject[ed] the Phoenix Defendants’ argument that the pleaded market share is less than 50% and therefore “legally insufficient.”’ 85 The court also found that the plaintiffs ‘pleaded facts sufficient to address other market factors, “such as concentration of the market, high barriers to entry, consumer demand, strength of the competition, or consolidation trend in the market.”’ 86 While a patent does not itself establish a presumption of market power, the court explained that ‘if, as the Chandler Plaintiffs plausibly claim, the patent is fraudulent under Walker Process, then monopolistic effects stemming from its enforcement may give rise to antitrust liability.’ 87 The court therefore denied the defendants’ motion to dismiss the attempted monopolization claims.

Noerr-Pennington doctrine

There were also several district court decisions in the Fifth Circuit that dismissed antitrust claims under the Noerr-Pennington doctrine.

Tricon Precast, Ltd v Easi Set Industries, Inc

In Tricon Precast, Ltd v Easi Set Industries, Inc, 88 the plaintiff, Tricon, a Texas company that manufactures and sells precast concrete and related products including traffic barriers for the road-construction industry, sued Easi-Set, a Virginia company that licenses precast concrete products, for unreasonable restraint of trade and unfair competition. Tricon alleged that Easi-Set violated the Sherman Act by successfully inducing and encouraging the Texas Department of Transportation to require that traffic barriers use Easi-Set’s trademarked V-shape design, which made Easi-Set the sole supplier of precast concrete barriers. 89 The court concluded that ‘based on the face of the second amended complaint, the Noerr-Pennington doctrine bars Tricon’s antitrust claims as a matter of law. Because Easi-Set allegedly succeeded in lobbying [the Texas Department of Transportation] to include the V-shape design in concrete-traffic-barrier specifications, the sham doctrine does not apply, and the Noerr-Pennington doctrine bars the antitrust claims against Easi-Set.’ 90 The court dismissed Tricon’s antitrust claims with prejudice and without leave to amend, noting that ‘amendment would be futile.’ 91

Veritext Corporation v Bonin

Similarly, in Veritext Corporation v Bonin, 92 two court reporter companies filed complaints against the Louisiana Court Reporter’s Association (LCRA) and the Louisiana Board of Examiners of Certified Shorthand Reporter’s (the CSR Board) challenging the constitutionality of a state statute that prohibited court reporters from entering into contracts with party litigants, and alleging that LCRA and the CSR Board ‘conspired together to restrict trade by disallowing volume-based discounts to court reporting firms, in violation of the Sherman Antitrust Act.’ 93 The court found that LCRA demonstrated ‘entitlement to Noerr-Pennington immunity for their petitioning activities requesting the CSR Board to enforce article 1434. The plaintiff asserts that the defendant LCRA “made baseless repetitive complaints to the Board and caused it to issue subpoenas, show cause orders, and engage in widespread coercion directed at insurance companies, private attorneys, and national court reporting firms over which it had no jurisdiction.” Because LCRA is a private citizen, who effectively lobbied the CSR Board, a “regulatory body,” to enforce article 1434, LCRA’s actions are permissible petitioning activity protected under Noerr-Pennington.’ 94 The court further found that the sham exception was not applicable ‘because the lobbying activities conducted by LCRA were not objectively baseless.’ 95 The court therefore found that LCRA was entitled to Noerr-Pennington immunity and dismissed the plaintiff’s Sherman Act claims.


1 917 F.3d 389 (5th Cir. 2019).

2 Id. at 390 (quoting La. Admin. Code. tit. 46 § 31101).

3 Id. (citation omitted).

4 Id. (citation omitted).

5 Id. at 391.

6 Id. (citation omitted).

7 Id. at 393.

8 Id. at 392–93.

9 Id. at 393.

10 Id. (distinguishing Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and a number of First Circuit cases).

11 935 F.3d 274 (5th Cir. 2019).

12 Id. at 277.

13 Id.

14 Henry Schein, Inc. v Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019).

15 Id. at 529.

16 Id. at 530.

17 Id. at 531 (quoting First Options of Chi. Inc. v Kaplan, 514 U.S. 938, 944 (1995)).

18 Archer, 935 F.3d at 279.

19 Id.

20 Id. at 281.

21 Id. at 281–82.

22 Id. at 283 (emphasis in original).

23 Id.

24 Id. at 284.

25 Id. at 283 n.42.

26 Id.

27 759 F. App’x 244 (5th Cir. 2019).

28 Id. at 245.

29 Id.

30 Id. at 246.

31 Id. (citation omitted).

32 Id. at 247.

33 Id. The Court also dismissed the plaintiffs’ unlawful acquisition claims under section 2 of the Sherman Act and sections 4 and 7 of the Clayton Act because the plaintiff alleged that those claims ‘rise and fall’ with the predatory pricing claim. Given that the Fifth Circuit found the district court did not err in dismissing the predatory pricing claim, it also held that the district court appropriately dismissed the unlawful acquisition claims. Id. at 247–48.

34 Id. at 248.

35 Id.

36 Id.

37 See Fed. Rules of Appellate P. with Fifth Cir. Rules and Internal Operating P. 47.5.4.

38 No. 4:18-CV-0430, 2019 WL 3017132 (S.D. Tex. Apr. 24, 2019).

39 Id. at *1.

40 Id. at *2, 4.

41 Id. at *5–6.

42 Id. at *6 (citation omitted).

43 Id.

44 Id. at *6–7 (quoting NECA-IBEW Health & Welfare Fund v Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012)).

45 Id. at *7 (citation omitted and emphasis in original).

46 Id. at *9.

47 Id. at *10.

48 Id. (quoting In re Lithium Ion Batteries Antitrust Litig., No. 13-MD-2420 YGR, 2014 WL 309192, at *2 (N.D. Cal. Jan. 21, 2014)).

49 Id. (citation and internal quotation marks omitted).

50 Id. at *11.

51 Id. (listing cases that found criminal guilty pleas supported an inference of a conspiracy).

52 Id.

53 No. 5:18-CV-153-RWS-CMC, 2019 WL 5691996 (E.D. Tex. Aug. 29, 2019), report and recommendation adopted, 2019 WL 4727425 (E.D. Tex. Sept. 27, 2019).

54 Id. at *6–7. Caesars and Choice filed separate motions to dismiss for failure to state a claim and incorporated by reference the arguments set out in the joint motion. Caesars’ and Choice’s separate motions and the court’s rulings on the same are not summarized here.

55 Id. at *16.

56 Id. at *18.

57 Id. at *22 (citing Universal Hosp. Servs., Inc. v Hill-Rom Holdings, Inc., No. CIV.A. SA-15-CA-32, 2015 WL 6994438, at *12 (W.D. Tex. Oct. 15, 2015)).

58 Id. at *23.

59 Id. at *24.

60 Id. (quoting Waggoner v Denbury Onshore, L.L.C., 612 Fed. App’x 734, 736 n.3 (5th Cir. 2015)).

61 Id. (citation and internal quotation marks omitted).

62 Id.

63 Id. at *26 (citation omitted).

64 See Kjessler v Zaappaaz, Inc, above (No. 4:18- CV-0430, 2019 WL 3017132 (S.D. Tex. Apr. 24, 2019)).

65 TravelPass, 2019 WL 5691996, at *28.

66 Id. at *32.

67 Id. at *33–34.

68 Id. at *35 (citation omitted).

69 Travelpass Grp. LLC v Caesars Entm’t Corp., No. 5:18-CV-00153-RWS-CMC, 2019 WL 4727425, at *4 (E.D. Tex. Sept. 27, 2019).

70 Maderazo v VHS San Antonio Partners, L.P., No. CV SA-06-CA-535-OG, 2019 WL 4254633 (W.D. Tex. Jan. 22, 2019).

71 Id. at *9.

72 Id. at *6 (quoting State of Alabama v Blue Bird Body Co., Inc., 573 F.2d 309, 317 (5th Cir. 1978)).

73 Id. at *7.

74 Id. (quoting Blue Bird, 573 F.2d at 327).

75 Id. at *8 (citing Atl. Richfield Co. v USA Petrol. Co., 495 U.S. 328, 335 (1990)).

76 419 F. Supp. 3d 972 (N.D. Tex. 2019).

77 Id. at 977.

78 Id.

79 Id. at 980.

80 Id. at 982. The defendants also moved to dismiss all counts against Mr Fisher because the plaintiffs had not sufficiently alleged facts that stated a claim that would subject Mr Fisher to individual antitrust liability. The court granted this motion in part and denied in part, holding that the plaintiffs ‘alleged facts plausibly showing Fisher may be held individually liable for the acts of HOTF’ but did not allege ‘facts plausibly showing Fisher may be held individually liable for the acts of Phoenix.’ Id. at 989.

81 Id. at 983 (citation omitted).

82 Id. at 985 (emphasis in original).

83 Id. (internal quotation marks and citation omitted).

84 Id.

85 Id. (citation omitted).

86 Id. (quoting Domed Stadium Hotel, Inc. v Holiday Inns, Inc., 732 F.2d 480, 490 (5th Cir. 1984)).

87 Id. at 985–86.

88 395 F. Supp. 3d 871 (S.D. Tex. 2019).

89 Id. at 877.

90 Id. at 886.

91 Id.

92 417 F. Supp. 3d 778 (E.D. La. 2019), reconsideration denied, No. 16-CV-13903, 2019 WL 6701313 (E.D. La. Dec. 9, 2019).

93 Id. at 782–83.

94 Id. at 788 (citation omitted).

95 Id.

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