Competition Corner

With a potential comeback in store for the Robinson-Patman Act, companies need to be able to identify, address, and ideally avoid risks that may be embedded in complex pricing structures and supply chain relationships. 

Private antitrust lawsuits can be lengthy and complex, often involving several defendants and dozens of differently situated plaintiffs, including the potential for multiple putative classes of plaintiffs, as well as direct action plaintiffs pursuing individual claims. In international cartel cases, global defendants must increasingly face private lawsuits across multiple jurisdictions, making it virtually impossible to settle everything globally at the same time due to the complexity of these sprawling matters and jurisdiction-specific idiosyncrasies. Indeed, new actions may be filed in other jurisdictions many years after the initial lawsuits.

In recent months, the Federal Trade Commission has signaled that it is reviving its enforcement efforts under the Robinson-Patman Act (RPA). With the federal government paying heightened attention to this formerly dormant area of law, so too should companies.

In a highly anticipated ruling, an en banc Ninth Circuit panel affirmed a district court’s certification of three classes of purchasers in a price fixing case against the three largest American producers of packaged tuna.  

A putative class of Connecticut citizens is alleging that Hartford HealthCare has amassed monopoly power to “extract higher prices from insurers, employers, and patients.” The suit, filed in Connecticut state court, alleges Hartford HealthCare has illegally monopolized the markets for inpatient hospital services and outpatient medical services in multiple geographic locations throughout Connecticut.

Qualcomm Inc. has won another battle in the fight over its alleged monopoly of modem chips used in cell phones. On September 29, 2021, the Ninth Circuit vacated the district court’s class certification order and remanded the matter for reconsideration.

On August 19, 2021, a Ninth Circuit panel confirmed that a full rule-of-reason analysis—as opposed to the more truncated per se treatment—applies to non-solicitation provisions in otherwise procompetitive collaborative agreements. 

Last week, the United States Court of Appeals for the Second Circuit reversed—for the second time—the decision of the United States District Court for the Southern District of New York that awarded treble damages to the plaintiffs in a class action suit alleging that four Chinese exporters of Vitamin C violated U.S. antitrust laws.

In the fast-developing area of no-poach antitrust law, two courts have recently denied class certification bids for former Jimmy John’s and McDonald’s employees in their respective no-poach suits alleging that the chains’ franchise locations were prohibited from recruiting one another’s workers.

In Olean Wholesale Grocery Co-op Inc. v. Bumble Bee Foods LLC, No. 19-56514 (9th Cir. Apr. 6, 2021), the Ninth Circuit clarified several class certification issues that have been heavily in dispute in antitrust class actions for more than a decade.

ACPERA is the federal statute meant to incentivize cartel amnesty applications to the Antitrust Division of the Department of Justice (DOJ) by providing the first-in leniency applicant with reduced civil damages exposure compared to its co-conspirators (separate from and in addition to the amnesty a first-in applicant receives on the criminal side).

On December 22, 2020, Congress passed the Competitive Health Insurance Reform Act (CHIRA), H.R. 1418, which will amend the McCarran-Ferguson Act to apply the federal antitrust laws to the health insurance industry. President Trump signed the bill into law on January 13, 2021.

Antitrust, data privacy, unfair competition, and class actions are among the pillars of consumer protection law. At the same time that federal government agencies and state attorneys general launch investigations and litigations targeting “Big Tech,” the plaintiffs’ class action bar is brainstorming and testing novel theories of competitive harm that unite antitrust and data privacy. In light of these recent activities, companies that use consumer data in their business operations must take heed of the uncertain legal landscape that is evolving to meet technological advances in data analytics.

Epic Games, Inc., developer of the wildly popular online videogame Fortnite, has kicked off a real-life battle royale with Apple and Google over their respective application marketplaces and digital payment processing platforms. Specifically, in separate complaints filed on August 13, Epic accused Apple of monopolizing the iOS app distribution market and iOS in-app payment processing market, and accused Google of monopolizing the Android mobile app distribution market and the Android in-app payment processing market.

Generally speaking, indirect purchasers do not have standing to sue for damages under federal antitrust law – a rule that was first announced by the Supreme Court in Illinois Brick v. State of Illinois, 431 U.S. 720 (1977), and that continues to develop today. For purposes of the rule, a direct purchaser is a person or entity who buys the relevant product (e.g., the price-fixed product) directly from the alleged violator. 

After a 26-day trial and over a decade of litigation, a federal jury in the Eastern District of Pennsylvania rejected claims by a group of grocery store chains that Rose Acre Farms, United Egg Producers, and United States Egg Marketers conspired to reduce the supply of egg-laying hens and inflate egg prices. This was the second trial in sprawling litigation involving several groups of plaintiffs asserting similar claims of anticompetitive conduct against the defendants.

A recent $16.8 million jury verdict against a Chinese telescope manufacturer demonstrates the significant risks that companies defending antitrust suits by competitors face, particularly when a case proceeds to a jury trial.

More courts are declining to apply the per se rule to so-called “no-poach” or “no-hire” arrangements, at least at the pleading stage. In the franchise context, the recent decision involving Jiffy Lube in Fuentes v. Royal Dutch Shell PLC, is the latest data point.

When can a company’s arrangements with its suppliers or customers create trouble? In this episode of Winston & Strawn's Competition Corner Podcast, Antitrust Partner Susannah Torpey discusses vertical restraints to help companies better understand where agreements or understandings undertaken at different levels of production, distribution, or supply may raise antitrust concerns.