Fourth Circuit: US v. Brent Brewbaker

Motion to shift the ground from per se violation to rule of reason was properly construed as a motion to dismiss the indictment, as it would have been an impermissible constructive amendment of the indictment.

Where two parties are alleged to have engaged in bid-rigging, and also relate vertically as supplier and contractor for awarded bids, the alleged conduct isn't an inherently anticompetitive restraint on trade subject to per se analysis.  Precedent requires that the companies be considered in their totality, so the horizontal bid-rigging isn't separable from the supply relationship.

Expert testimony as to the anticompetitive effects of the business practices should not have been excluded when considering a (constructive) motion to dismiss.

By ensuring that their competitor/distributor won the bidding war, the bidder could increase the demand for the supplier's product.

Fraud convictions for submitting a noncompetitive bid were not infected by the Sherman Act instructions reversed here.

US v. Brent Brewbaker 

Fourth Circuit: Raymond Benitez v. Charlotte-Mecklenburg Hospital

 

As it was established by the state, and has many powers that are typically characterized as government powers, such as eminent domain and bond sales, the hospital trust is within the local government antitrust immunity created by the statute.

Raymond Benitez v. Charlotte-Mecklenburg Hospital 

Ninth Circuit: FTC v. Qualcomm Inc.

 

Anticompetitive effects of a supplier's monopoly behaviour on downstream adjacent markets are beyond the reach of Sherman Act rule of reason analysis, as the relevant market is different.

Refusal to deal horizontally with another supplier is outside of S2 where there is no indication that the dealing was profitable for the deft, there was a valid business reason to end the dealing, and the refusal to deal wasn't targeted.

Absent intentional deception,  breach of contract to deal horizontally with other suppliers doesn't create a monopoly harm unless a harm to competition - as opposed to competitors - is proved.

Patent royalty rates different than the current market value of the technology are not inherently anticompetitive under antitrust law.

As the products of the supplier's rivals inherently embody some of the packaged patents, the supplier's licensing of the downstream use of its terchnology within its rivals products is not an inherently anticompetitive surcharge on its rivals products.  Subsequent low but non-predatory pricing of its own units is also not an inherently anticompetitive behaviour.

A supplier's requirement that a downstream manufacturer commit to a license for products both supplied by the supplier and its rivals does not distort the area of effective competition; any unfair pricing of the license sounds in patent law, not antitrust.

Even if the exclusive dealing contracts that the supplier claimed were merely volume contracts in fact substantially foreclosed competition in the relevant markets, past harms do not justify a prospective injunction.  And there were no viable competitors at the time.

 FTC v. Qualcomm Inc.

Eleventh Circuit: SMILEDIRECTCLUB, LLC v. Tanja D. Battle, et al.

 

Ruling on state-action immunity is sufficiently similar to one on qualified immunity to be the subject of interlocutory appeal as a collateral order.  (This is a "binding alternative holding.")

Pro forma acceptance of Dental Board's rulemaking by the state's executive is insufficient active supervision by the government to shield the Board from antitrust claims under the state action doctrine; similarly, such acceptance of the rulemaking does not make the change an act of the sovereign, which would be shielded from suit ipso facto.

Concur / Joined in full:

Denial of state action immunity is a question of the interpretation of the Sherman Act, not one of constitutional right, and can be addressed after final judgment, especially in cases involving private parties.  Circuit split flagged.

Dissent:

As the lower court reserved judgment on the state action immunity claim for summary judgment, when the record would be more fully developed, the denial is insufficiently final, and the order risks contradiction by subsequent development of the record prior to summary judgment.

SMILEDIRECTCLUB, LLC v. Tanja D. Battle, et al

Second Circuit: Spinelli v. National Football League

As implied license is an affirmative defense, all elements must be plain in order to dismiss an infringement claim at the pleadings stage.

Error to dismiss for not stating a claim where there is evidence that the grant of license by the creator did not contemplate the sublicence; this sounds in copyright infringement, not in contract.

Secondary infringement allegation states a claim against third party organization given showing of close connection between the two organizations.

Good faith/fair dealing states claim -- strong-arm negotiation unconscionability doesn't.

(Miscellany)

Antitrust argument would sound more clearly if photographers challenged their market -- trademark licensing, etc.  Rather than simply alleging the existence of a behemoth.

http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/doc/17-673_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4eaf0b6-79ed-4fa7-b47b-3f412f9925f4/1/hilite/

Seventh Circuit: Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc.

Antitrust suit against producer of raw metal cannot relate back its revised claim, making it untimely; the shift from industrial plaintiffs to the end users of the products gave the defendants insufficient notice to preserve documents and prepare for trial.

State antitrust laws likely require closer proximancy than the end user of the products, as loss calculation becomes difficult.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-06/C:17-2910:J:Wood:aut:T:fnOp:N:2213421:S:0

Fifth Circuit: Veritext Corporation v. Paul Bonin, et al

State regulation of business practices of shorthand court reporters is justified by a sufficiently strong state interest.

The practice is not immunized against antitrust scrutiny, though, as there is no active state oversight; while the regulations are a creation of the legislature, and the Board is merely administering them.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30691-CV0.pdf

Second Circuit: Anderson News, L.L.C. v. American Media, Inc.

Publishers' refusals to deal with middleman distributor were insufficiently close in time to be parallel conduct; statements seeming to indicate a common plan are susceptible of more innocent readings.  As a matter of law, finder of fact could not have found beyond a reasonable doubt that the economically implausible refusal to deal had been established by the evidence.

http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/doc/15-2714_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/1/hilite/

Ninth Circuit: US v. Joyce

Given the per se rule against horizontal price fixing, court did not abuse its discretion by barring evidence of minimal market effects.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf

Eighth Circuit: Mario Ortiz v. Ferrellgas Partners

Where injunctive antitrust relief is sought, and the remedy parallels existing FTC consent orders, the complaint, to establish an injury, must contain sufficient factual content to support the rational inference that the nonmovant has violated the consent orders.

Indirect purchasers cannot seek disgorgement, given the risk of multiple and inconsistent proceedings.

Remanded to consider if state law claims are sufficient to retain jurisdiction.

http://media.ca8.uscourts.gov/opndir/18/06/164086P.pdf

Federal Circuit: Xitronix Corp. v. KLA - Tencor Corp.

Denial of en banc.

Dissent from denial: Where plaintiff does not allege any non-patent-law theory of harm in an antitrust suit, the circuit is not divested of jurisdiction to hear the claim, given statutory grant of jurisdiction.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2746.Order.6-15-2018.1.pdf