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Supreme Court Clarifies Principles of International Comity in Vitamin C Ruling

Alert: The Supreme Court clarified the principles of international comity this week in a ruling pertaining to the long-running vitamin C antitrust class action litigation. International comity is the recognition a nation shows to the legislative, executive or judicial acts of another nation. Principles of comity state that US courts should defer to the laws of other nations when actions are taken pursuant to those laws. In this week’s ruling, Justice Ginsberg wrote that federal courts should accord respectful consideration to foreign government submissions when analyzing comity issues, but are not bound by them. This ruling vacates the Second Circuit’s decision in the case overturning the jury verdict for the class, and is a win for the class of US purchasers of vitamin C. Background In 2005, US purchasers of vitamin C filed a class action suit against four Chinese manufacturers who make the vitamin product in China and export it to the US. The US purchasers...

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THE LATEST: Trump DOJ’s Next Target: the Illinois Brick Indirect Purchaser Rule?

In the course of one week, two top level DOJ Antitrust officials in the Trump Administration separately spoke at panels and suggested the possibility of a sea change in federal antitrust law with respect to indirect purchaser lawsuits. The comments further reinforce the Administration’s active focus on antitrust issues. WHAT HAPPENED: Makan Delrahim, DOJ’s Assistant Attorney General in charge of the Antitrust Division (the Division), spoke at a conference organized by the Antitrust Research Foundation on January 19, 2018, and is reported to have stated that the Division was looking into the possibility of pursuing civil damages on behalf of taxpayers in antitrust price-fixing suits. A few days later, on January 23, 2018, Andrew Finch, DOJ’s Principal Deputy Assistant Attorney General for Antitrust, spoke at a Heritage Foundation conference and reportedly stated that the Division was “looking at whether or not it might be worthwhile to revisit those rules and...

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Supreme Court Nominee Neil Gorsuch Has Significant Antitrust Experience

On January 31, 2017, President Trump nominated Neil Gorsuch to fill the vacant seat at the Supreme Court of the United States left by the late Justice Antonin Scalia. As a federal judge for the US Court of Appeals for the Tenth Circuit, a former private practitioner, and an adjunct professor of antitrust law at the University of Colorado, Gorsuch has an extensive background in antitrust. In 1996, Gorsuch joined the law firm Kellogg Huber Hansen Todd Evans & Figel, where his practice included both plaintiff and defense litigation in antitrust matters. Gorsuch and his co-counsel helped secure a judgment of $1.05 billion in trebled damages for tobacco company Conwood Co. after a jury found that defendant United States Tobacco Co. engaged in anticompetitive marketing practices. Gorsuch also defended telecommunications company SBC Communications, Inc. during his tenure at Kellogg when a rival company alleged that SBC set forth an illegal tying arrangement. The...

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Judge Merrick Garland’s Antitrust Past: A Brief Summary

Since President Obama announced Judge Merrick Garland’s nomination to the Supreme Court of the United States last Wednesday, March 16, 2016, many have opined on his qualifications as well as the political fight about his confirmation this election year.  A few articles have noted Judge Garland’s academic background—that he taught Advanced Antitrust at his alma mater, Harvard Law School, while working in private practice in the 1980s.  During that time, Judge Garland also published articles in the Yale Law Journal and Harvard Law Review on antitrust issues. Although his time as an antitrust academic ended nearly 30 years ago, Judge Garland’s articles remain relevant and continue to be cited by the courts and legal academics.  For example, his article, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 486 (1986), was cited by Justice Kennedy in North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015),...

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The ‘Super Powered’ Rule of Stare Decisis Defeats Spider Man

The Supreme Court of the United States, in a 6-3 decision, left undisturbed the rule from its 51-year-old decision in Brulotte v. Thys Co. (1964), invoking stare decisis and rejecting arguments seeking to overturn the rule barring patent royalty agreements that obligate payment of post-patent expiration royalties. Kimble v. Marvel Entertainment, LLC, Case No. 13-720 (Supr. Ct., June 22, 2015) (Kagan, Justice) (Alito, Justice dissenting). In Kimble, the Court addressed the question of whether parties to a patent license may agree that a licensee must continue paying royalties based on sales of products after the licensed patent(s) expire, and answered the question “No,” continuing the rule that such agreements are unlawful per se. Since Brulotte was decided 51 years ago, many courts and commentators have criticized the rule it laid down as wrongly decided as a matter of economic policy. While the Kimble decision, based essentially on stare decisis, preserves...

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NCAA Argues For Dismissal of Athletes’ Latest Antitrust Complaint

by Megan Morley Last week, the NCAA asked the Northern District of California to throw out a suit initiated in 2009 on behalf of former and current NCAA athletes.  NCAA Student-Athlete Names & Likeness Licensing Litigation, case number 4:09-cv-01967.  The athletes claim that the NCAA, its member schools, video game creator Electronic Arts (“EA”), and the Collegiate Licensing Company (“CLC”) conspired not to compensate athletes for the use of their names, images, and likenesses in video games and television broadcasts.  Specifically, the third amended complaint alleges that the NCAA and its member schools agreed not to offer athletes licensing revenues and that EA and CLC agreed to follow the NCAA’s no compensation rule so as not to undermine the scheme.  As a result of this conspiracy, the athletes were deprived of compensation for defendants’ use of their names and likenesses and were excluded from entering the market for the licensing, use, and sale of...

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Hotels and Online Travel Companies Move to Throw Out Class Action Suit

by Megan Morley Last week, a group of hotels and online travel companies moved to dismiss an amended class action complaint alleging that they engaged in a price-fixing conspiracy to control hotel room prices.  Online Travel Company Hotel Booking Antitrust Litigation, case number 3:12-cv-03515.  The companies, which include Travelocity and Hilton Worldwide, argued that the plaintiffs abandoned the principle elements of the conspiracy alleged in the initial complaint.  First, plaintiffs no longer allege that individual agreements between a hotel and online travel companies violated antitrust laws.  Second, plaintiffs admit that they have no basis to prove a horizontal conspiracy among the hotel defendants.  According to the defendants, the plaintiffs’ case only relies on purported collusion between the online travel companies and hotels to implement similar distribution programs.  These factual allegations, however, are not sufficient to bring an antitrust...

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Patent Exhaustion Rejected: Patented Seed Purchaser Has No Right to Make Copies

by Paul Devinsky, Cynthia Chen and Lincoln Mayer The Supreme Court in Bowman v. Monsanto Co. ruled unanimously that a farmer’s replanting of harvested seeds constituted making new infringing articles. While the case is important for agricultural industries, the Supreme Court cautioned that its decision is limited to the facts of the Bowman case and is not a pronouncement regarding all self-replicating products. To read the full article, click here.

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The Supreme Court Clarifies When Antitrust Law Applies to Joint Ventures in American Needle Inc. v. National Football League, Inc.

by Jon B. Dubrow, Stephen Wu and Vincent C. van Panhuys In a unanimous decision issued on May 24, 2010, the Supreme Court of the United States clarified when participants in a joint venture may face antitrust liability for their joint activities.   In American Needle, Inc. v. National Football League, Inc., et al, the Supreme Court ruled that the National Football League (NFL) and its member teams are not immune from the antitrust laws when licensing the teams’ intellectual property rights jointly through a single entity.  Instead, the antitrust laws do apply and the teams’/League’s conduct must be analyzed to determine whether it can be an agreement in restraint of trade violating the antitrust laws. The American Needle decision has broad application to joint ventures and other collaborations involving competitors across all industries.  This is because the Supreme Court held that participants to a joint venture are...

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