It is an honor to serve as editors of the Third Edition of GCR’s US Courts Annual Review. As in past years, this year’s edition includes chapters devoted to particular topics and trends and others covering important antitrust decisions from various circuits and district courts throughout the country.
The topical chapters in Part 1 cover the following:
- no-poach agreements: examining enforcement trends, including the expansion of criminal investigations beyond the healthcare industry into areas such as aerospace and book publishing and the US Department of Justice’s new position that some no-poach agreements in the franchise context should be subject to per se treatment rather than the rule of reason;
- reverse-payment settlement cases: covering decisions that address whether settlements cross the threshold of large and unjustified payments established by the Supreme Court’s seminal 2013 decision in FTC v Actavis and class-certification issues; and
- key class-certification decisions in various types of antitrust cases: continuing to focus on the predominance requirement and paying new attention to the numerosity requirement as well as grappling with issues such as the use of average-pricing models and when the presence of uninjured class members defeats the predominance requirement.
Part 2 contains a chapter dedicated to Third Circuit decisions in antitrust cases involving pharmaceutical products, which discusses a class-certification decision involving an attempt to use average-injury evidence to show class-wide antitrust injury, a decision applying the Noerr-Pennington doctrine, and a case holding that allegations based on separate reverse-payment settlements failed to plead an overarching horizontal antitrust conspiracy. Other chapters in Part 2 cover important substantive and procedural rulings in antitrust cases throughout the federal courts, including:
- First Circuit cases analyzing causation in antitrust cases, who decides whether a non-signatory can enforce an arbitration agreement, and the extraterritorial reach of the Sherman Act;
- Second Circuit rulings in several financial industry antitrust cases involving SIBOR, LIBOR and credit-card steering rules that address issues of subject-matter jurisdiction, personal jurisdiction, antitrust standing, and international comity;
- Third Circuit antitrust developments outside the pharmaceutical industry;
- Sixth Circuit decisions in a variety of industries, including a ruling that an indirect purchaser class settlement prevented indirect purchasers from suing as direct purchasers based on the owned and controlled exception to Illinois Brick and reversal of a preliminary injunction in a refusal-to-deal case noting that refusal-to-deal claims ‘face a steep and obstacle-laden climb’;
- Seventh Circuit cases affirming dismissals where plaintiffs failed to adequately allege Section 1 violations but declining to impose sanctions for a ‘frivolous’ claim because sanctions were first requested in the appellate brief;
- Ninth Circuit cases addressing joint restrictions on amateur athlete compensation under the rule or reason, alleged upstream market allocation conspiracies, antitrust standing, and choice-of-law for a nationwide class of indirect purchasers under California state antitrust laws, which do not recognize Illinois Brick, as well as a case holding that a non-solicitation provision in a staffing agreement was an ancillary restraint that should be analyzed under the rule of reason, and a case from the Northern District of California considering social media market definition and pleading requirements on a motion to dismiss; and
- DC Circuit rulings in cases involving ATMs, airlines, and social media, including a grant of interlocutory appeal of class certification in the In re ATM Fees Antitrust Litigation case and dismissal as premature of objectors’ interlocutory appeal of a settlement with two of four airlines in the In re Domestic Arline Travel Antitrust Litigation case as well as a pair of DC district court decisions dismissing claims by a group of state attorneys general challenging a social media company’s acquisitions and policies governing application program interface access and denying a motion to dismiss the FTC’s amended complaint containing similar allegations.
We hope this book brings you up to date on various important developments in antitrust cases in US courts and can serve as a resource in your practice going forward.