August 7, 2014

Federal Court Denies Class Certification In Intel Antitrust Litigation

By David Golden

Plaintiffs in the long-running In re Intel Corporation Microprocessor Antitrust Litigation class action have suffered a major setback with last week’s denial of class certification by the U.S. District Court for the District of Delaware.

The lawsuit, filed in 2005, alleges that Intel illegally excluded its major rival, Advanced Micro Devices (commonly referred to as “AMD”), from the U.S. market for x86 computer microprocessors[1] by paying computer manufacturers “loyalty payments” and “rebates” to use only Intel chips. The proposed class is compromised of indirect purchasers that bought computers that contained Intel microprocessors. The plaintiffs contend Intel’s payments to computer manufacturers reduced competition for chips, and ultimately raised the prices consumers paid for computers.

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Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

    March 13, 2014

    Show Me The Money Or Go Home: Federal Courts Wrestle With Addressing Reverse-Payment Settlements After Supreme Court’s Actavis Decision

    By Ankur Kapoor and Rosa M. Morales

    Nearly a year after the Supreme Court held in FTC v. Actavis that reverse-payment settlement agreements between branded and generic pharmaceutical companies are subject to antitrust scrutiny under the rule of reason, federal district courts are struggling with the thorny issue of whether plaintiffs need to show them the money.

    More specifically, district courts remain confounded by what constitutes a “payment” for purposes of antitrust challenges to settlements of Hatch-Waxman pharmaceutical patent infringement litigation, and whether a monetary transfer from the patent holder to the alleged infringer, i.e., a “reverse payment,” is necessary to state an antitrust claim attacking the competitive effects of the settlement.  Before embarking on a rule-of-reason analysis in such cases, some district court judges seem reluctant or unwilling to say “go” before they see the green.

    As discussed in a previous post – “Are Bright-Line Rules The Right Prescription For Reverse-Payment Cases?” – in January the U.S. District Court for the District of New Jersey dismissed the antitrust challenge to a reverse-payment settlement in In re Lamictal Direct Purchaser Antitrust Litigation because there was no cash payment from the patent holder to the would-be generic competitor, and narrowly interpreted Actavis as imposing a “bright-line” requirement of a cash payment.  The court therefore held that it was unnecessary to engage in the requisite full-blown rule-of-reason analysis to determine the settlement’s anticompetitive effects (if any).

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    Categories: Antitrust and Intellectual Property Law, Antitrust Litigation, Antitrust Policy

      March 5, 2014

      Are Bright-Line Rules The Right Prescription For Reverse-Payment Cases?

      By Jeffrey I. Shinder and Ankur Kapoor

      As antitrust law evolves to address new problems posed by ever-shifting dynamics in industries both old and new, two schools of thought are vying for control of challenges to reverse-payment settlement agreements that resolve patent infringement litigation brought by pharmaceutical manufacturers against potential generic competition.

      One school favors the establishment of bright-line rules to give firms and courts predictability in the law.  The Supreme Court’s still controversial Illinois Brick decision, which generally limits damages recoverable under federal antitrust law to direct purchasers, is one example of this approach.  (Expressing the contrary view on whether indirect purchasers should have standing to recover their damages are the many state antitrust laws allowing indirect-purchaser recovery and the Supreme Court of Canada’s rejection of the Illinois Brick doctrine.)

      Another school of thought emphasizes that, in antitrust law, substance and economic reality should trump form because rigid, bright-line rules inevitably encounter cases in which application of a rigid rule leads to undesirable results, or, worse, give firms with market power a roadmap on how to exclude competition without fear of antitrust scrutiny.  This school of thought is grounded in the recognition that, because restraints often arise in factual and legal contexts as complex as the industries in which they arise, they cannot properly be evaluated without assessing and balancing their anticompetitive and procompetitive effects.   While this inquiry can sometimes be taxing, it is often necessary to reach a result that promotes unrestrained competition and markets – which generally are valued by all schools of thought.  The Supreme Court reaffirmed this principle in 2010 with its decision in American Needle v. NFL, which held that the National Football League could be considered a “combination” or “conspiracy” subject to Section 1 of the Sherman Act, depending on the specific factual and economic circumstances of the NFL’s member football teams’ conduct at issue.

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      Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

        March 4, 2014

        Court Orders NCAA To Huddle With Former Players In Settlement Talks

        By David Scupp

        The antitrust battle between the NCAA and its former players over the use of their names and likenesses might finally be coming to a head.

        Last Friday, Judge Claudia Wilken of the U.S. District Court for the Northern District of California ordered the NCAA to engage in settlement talks in the class action case of In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, with the class representatives, who claim that the NCAA and its member schools illegally conspired to prevent players from earning compensation from the licensing of their name and likeness rights.

        This order comes on the heels of a summary judgment hearing on February 20, 2014, when Judge Wilken stated in no uncertain terms that “[t]he whole case is not going away on summary judgment.”  That means that, barring successful settlement negotiations, the case is very likely to go to trial.  A trial date has been set for June 9, 2014, in Oakland, and is slated to last 19 days.

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        Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

          January 13, 2014

          Supreme Court May Decide Future Of More Than Just Television Reception In Aereo Case

          By Seth D. Greenstein

          On Friday, the Supreme Court granted certiorari in American Broadcasting Companies v. Aereo, Inc. (“Aereo”), the case that is now slated to decide the question of whether a company “publicly performs” a copyrighted television program by providing consumers a technology to receive and record a broadcast of that program via antenna and then transmit that recording to themselves over the internet.

          To Supreme Court mavens, certiorari seemed unlikely under the Court’s rules.  There is no split of opinion among the federal circuit courts of appeals over the legality of Aereo’s business model.  Although broadcasters have sued Aereo in multiple jurisdictions, courts have denied the broadcasters’ requests for a preliminary injunction.  It is debatable whether the case involves a question of exceptional importance, given that Aereo is a small company and the courts disagree as to whether Aereo’s business might cause multibillion dollar networks irreparable harm.

          But the unconventional Aereo took an unlikely step after broadcasters sought Supreme Court review of Aereo’s victory in WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), in which the U.S. Court of  Appeals for the Second Circuit affirmed the district court’s denial of broadcasters’ motion for a preliminary injunction seeking to bar Aereo consumers from accessing recorded broadcast television programs while the programs are airing on broadcast television.  Aereo responded to the petition for certiorari by agreeing that the Court should take the case.  As Aereo observed, although it has thus far prevailed in litigation, it continues to be sued whenever it launches in a new city.  Certiorari was needed, Aereo told the Court, to stop the war of attrition that threatened both Aereo and, in its view, all modern technology systems that store and give consumers access to their content in the internet “cloud.”  click here for more »

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          Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

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