Antitrust Successes

In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation

The firm is representing more than 60 major merchants and merchant trade associations in an antitrust suit against Visa, Mastercard and certain of their member banks for engaging in alleged anticompetitive conduct in payment card markets. The merchants represented by the firm include the following: Amazon.com, 7-Eleven, Academy Sports + Outdoors, Alimentation Couche-Tard, Alon, American Multi-Cinema, Ashley Furniture, Barnes & Noble, Barnes & Noble College Booksellers, Beall’s, Boscov’s, Brookshire’s, The Buckle, Children’s Place, Coborn’s, Costco, Cracker Barrel Old Country Store, Cumberland Farms, D’Agostino’s, Dick’s Sporting Goods, Dillard’s, Drury Hotels, Crate & Barrel and CB2, Land of Nod, Express, Family Dollar, Family Express, The Mills Companies, Foot Locker, The Gap, Genesco, GNC Holdings, Gulf Oil, HMSHost, IKEA, Jetro Cash & Carry, Lowe’s, Marathon Petroleum, Michaels Stores, National Association of Convenience Stores, National Grocers Association, Amtrak, New York & Company, NIKE, P.C. Richard’s, PacSun, Panda Restaurant Group, Panera, Petco, Priceline Group, Ralph Lauren, REI, Republic Services, Restoration Hardware, Sears, Speedway, Starbucks, Stein Mart, Swarovski, Talbots, Thermo Fisher, Thorntons, Wet Seal, Whole Foods, Carter’s, and Yum! Brands. The firm brought this suit after being retained by dozens of entities to oppose a proposed settlement of a class action brought against Visa and Mastercard. The firm represented many of the above merchants, other merchants and 10 of the 19 named plaintiffs, including all six named plaintiff trade associations in the class action, in litigation that went up to the U.S. Court of Appeals for the Second Circuit, which eventually ruled in favor of the firm and its clients in rejecting the settlement.

Nexstar Broadcasting, Inc. v. Granite Broadcasting Corp.

The firm represented Nexstar Broadcasting, Inc., an owner and operator of multiple television stations across the U.S., in its antitrust suit against its competitor Granite Broadcasting Corporation in the United States District Court for the Northern District of Indiana. The litigation, filed on July 25, 2011, alleged that Granite violated federal and state antitrust laws by having unlawfully acquired control over the sale of television broadcast local spot advertising in the Fort Wayne, Indiana, Designated Market Area (DMA) by having acquired control of local spot advertising sales on five of the six national television broadcast network affiliations in the Fort Wayne DMA (NBC, ABC, FOX, MyNetworkTV, and The CW). Nexstar alleged that Granite’s exclusion of Nexstar’s Fort Wayne television station, WFFT-TV, from the “must-have” programming of these national networks had injured WFFT-TV’s and Nexstar’s ability to sell local spot advertising and had raised WFFT-TV’s costs of producing television programming. The firm defeated Granite’s motion to dismiss Nexstar’s complaint, and also defeated Granite’s motion for reconsideration, or in the alternative for interlocutory appeal, of the court’s denial of Granite’s motion to dismiss, thereby allowing the case to proceed to discovery. On February 6, 2013, Nexstar entered into a new affiliation agreement with the Fox Broadcasting Company (FOX) for WFFT-TV in Fort Wayne, Indiana, beginning March 1, 2013. On February 6, 2013, the parties mutually agreed to settle the lawsuit and stipulated to dismissal of the lawsuit with prejudice.

CareCore National Cases

The firm has represented several groups of outpatient diagnostic imaging clinics in Sherman Act Section 1 litigations in the Southern and Eastern Districts of New York against a health insurance company “gatekeeper” previously owned by competing diagnostic imaging providers. The plaintiffs alleged that the defendant had exclusive contracts with some of the largest health insurance companies in New York and that plaintiffs and other competitors have been excluded from servicing patients covered by these insurance companies due to the acts of exclusion and market allocation by the defendant and its co-conspirators. These cases have all been resolved.

Wal-Mart Stores, Inc. et al. v. Visa U.S.A. Inc. and MasterCard International Incorporated (a/k/a In re Visa Check/MasterMoney Antitrust Litigation)

Constantine Cannon was lead counsel for the plaintiffs in this antitrust class action against Visa and MasterCard, on behalf of the more than five million retailers in the United States that accept Visa and MasterCard credit and debit cards. The firm secured a record-breaking settlement for its clients, consisting of $3.05 billion in payments from Visa and MasterCard along with reductions of fees to retailers valued by the courts at between $25 and $87 billion. The firm filed the lawsuit on behalf of its clients Wal-Mart Stores, Inc., The Limited, Inc., and other retailers as well as three retail trade associations. These retailers contended that Visa and MasterCard attempted to monopolize the debit card market by tying merchant acceptance of debit cards to credit cards and other anticompetitive conduct. Constantine Cannon has concluded the claims administration and distribution phase of the class settlement, with more than 99% of the funds (net of expenses) being disbursed to merchants, and a cy pres donation of the approximate $1.75 million remainder going to the American Antitrust Institute, Consumers Union, and U.S. PIRG.

Discover Financial Services, et al. v. Visa U.S.A. Inc., Visa International Service Association, MasterCard Incorporated and MasterCard International Incorporated

In October 2008 Constantine Cannon and its co-counsel secured a settlement of $2.75 billion, the third largest antitrust settlement in U.S. history, for Discover Financial Services. Constantine Cannon’s prosecution of the case was led by Jeffrey I. Shinder and Matthew L. Cantor, who were also among the lead attorneys in the In Re Visa Check class action. Discover sued Visa and MasterCard for damages sustained as a result of Visa’s and MasterCard’s exclusionary rules that, from the early 1990s until 2004, prohibited U.S. banks from issuing Discover credit and debit cards to their customers. This action followed from the decision in United States v. Visa U.S.A. Inc., Civ. No. 98-7076 (S.D.N.Y.) (BSJ), which held that the implementation and enforcement of Visa Bylaw 2.10(e) and MasterCard’s Competitive Programs Policy violated Section 1 of the Sherman Act.

Ortho Biotech v. Amgen

The firm represented Ortho Biotech, a subsidiary of Johnson & Johnson, in a Sherman Act Section 1 and 2 litigation against Amgen, Inc. in the District of New Jersey. Ortho alleged that Amgen used its monopoly in the market for white blood cell growth factor (WBCGF) drugs to the detriment of consumers that purchase red blood cell growth factor (RBCGF) drugs. WBCGF and RBCGF drugs are given to patients undergoing cancer chemotherapy that have sustained substantial losses in either white or red blood cells. Specifically, Ortho alleged that Amgen engaged in its exclusionary tactics by providing massive rebates to cancer clinics on its WBCGF drugs only on the condition that the clinics purchase all or substantially all of their RBCGF drugs from Amgen (as opposed to Ortho). Ortho alleged that this conduct led to anticompetitive effects by, among other things, foreclosing it from substantial portions of RBCGF sales and that this conduct constitutes an illegal tying arrangement, a maintenance of monopoly power and/or an unlawful attempt to monopolize. Ortho sought damages and injunctive relief in this matter. In a settlement that the parties announced on July 11, 2008, Amgen agreed to pay Ortho $200 million.

Supreme Fuels v. IOTC.

The firm currently represents this multinational government/military supply contractor in an antitrust/RICO action relating to the company’s loss of a one-billion dollar contract to supply fuel to the U.S. troops in Iraq.

Kearse v. Kaplan, Inc.

The firm represented Kaplan in a proposed class action alleging a per se illegal market allocation agreement between Kaplan and BAR/BRI involving their respective LSAT and bar review prep courses. The firm successfully dismissed the action on the pleadings. See 692 F. Supp. 2d 398 (S.D.N.Y. 2010).

Dolan et al. v. Fidelity National Title Ins. Co.

The firm was lead counsel representing consumers in this price-fixing challenge to the collective setting of New York title insurance rates by the country’s four largest title insurance companies. Subsequent to the filing of the complaint, and its front page coverage in the Wall Street Journal, more than 75 “copycat” actions were filed in numerous jurisdictions throughout the country.

Inquivosa S.A. v. Ajinomoto Co., Inc. (a.k.a. In re Monosodium Glutemate Antitrust Litigation)

Constantine Cannon represented the Government of Japan as an amicus curiae to the United States Court of Appeals for the Eighth Circuit in this global price-fixing lawsuit. The Eighth Circuit, agreeing with Japan’s view that American federal courts lacked jurisdiction over the foreign conduct alleged in the case, affirmed the lower court’s dismissal of foreign purchasers’ claims.