Introduction

We are honored to serve as the editors of GCR’s US Courts Annual Review. The decisions discussed in this second edition cover a broad spectrum of issues, including emerging topics, enduring concepts and rarely seen issues. Each chapter in this review covers noteworthy 2020 decisions from a particular Circuit as well as recent developments in particular areas of antitrust law, such as trends in class certification and the state of the law regarding reverse payments. Together, these chapters show how antitrust continues to be an active area and continues to evolve.

For years, one of the more difficult antitrust questions has been the scope of an alleged monopolist’s duty to deal with competitors. In FTC v Qualcomm, Inc,[1] the Ninth Circuit addressed this issue as well as general antitrust principles specific to conduct by standard-essential patent holders. In 2020, the Ninth Circuit also took up the relatively novel question of whether college and university limits on compensation of student athletes are unreasonable restraints of trade, in Alston v NCAA (In re NCAA Athletic Grant-In-Aid Cap Antitrust Litigation).[2]

Other Circuits addressed similarly unique antitrust issues throughout the year. The Third Circuit’s highly publicized decision in FTC v AbbVie, Inc[3] involved several topics of significance to antitrust practitioners, including interpretation of the Supreme Court’s seminal reverse-payment decision, FTC v Actavis, application of the sham-litigation exception to Noerr-Pennington immunity, and the availability of disgorgement under section 13(b) of the Federal Trade Commission Act. As home to the nation’s financial center, the Second Circuit and the courts in the Southern District of New York issued a series of antitrust opinions in 2020 relating to financial products, frequently in cases involving benchmark rate-setting and debt securities. One area that received particular attention in Second Circuit courts was the issue of antitrust standing and the ‘efficient enforcer’ doctrine. In Viamedia Inc v Comcast Corp,[4] the Seventh Circuit held that refusals to deal are rarely ‘amenable to resolution on the pleadings’ because whether an antitrust defendant was truly acting in a pro-competitive manner is generally a question of fact. The Fifth Circuit, in Hewlett-Packard Company v Quanta Storage, Inc,[5] evaluated whether turnover orders issued against a Taiwanese company resulting from a treble damages jury award were enforceable in light of Taiwanese law and principles of international comity. In PNE Energy Supply LLC v Eversource Energy,[6] the First Circuit addressed the application of the filed-rate doctrine to claims alleging manipulation of the market for wholesale natural gas sales regulated by the Federal Energy Regulatory Commission. And although the US antitrust enforcement agencies have an extraordinary record of litigation success, in 2020, two district courts in the Third Circuit rejected federal challenges to two different acquisitions between private parties, in Federal Trade Commission v Thomas Jefferson University [7] and United States v Sabre Corp.[8]

The past decade has witnessed significant development of class action certification standards in the antitrust context, and the past year has been no exception. Likewise, the law regarding reverse payments in pharmaceutical cases continues to evolve. And the application of the antitrust laws to ‘no-poach’ and other employment agreements became only more prevalent during 2020. Thus, this edition of the US Courts Annual Review contains a review of the trends in all three of these areas.

In a year that was undeniably interesting, 2020 also delivered on the antitrust front. We hope you find this book useful, and we look forward to next year’s examination of what unfolds in 2021.


Notes

[1] 969 F.3d 974 (9th Cir. 2020).

[2] 958 F.3d 1239 (9th Cir. 2020).

[3] 976 F.3d 327 (3d Cir. 2020).

[4] 951 F.3d at 429 (7th Cir. 2020).

[5] 961 F.3d 731 (5th Cir. 2020).

[6] 974 F.3d 77 (1st Cir. 2020).

[7] No. CV 20-01113, 2020 WL 7227250 (E.D. Pa. Dec. 8, 2020).

[8] 452 F. Supp. 3d 97 (D. Del.), vacated on mootness grounds, No. 20-1767, 2020 WL 4915824 (3d Cir. Jul. 20, 2020).

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