Antitrust

The district court erred in modifying CACI 3405, which states that a plaintiff may prove the second element of an unreasonable course of conduct claim by proving either anticompetitive purpose or effect, and CACI 3411, which lists factors for a jury to consider in weighing the anticompetitive purposes or effects of a defendant's conduct.  The district court removed the word… Read More

The trial court correctly dismissed the consumer plaintiff's UCL unfair claim against Apple for its policies of taking a 30% cut of app developers' earnings and prohibiting app developers from advertising alternative means of paying for app purchases.  Apple's policies were unilaterally conceived and imposed, not by agreement with any other entity.  California's Cartwright Act does not contain a monopolization… Read More

In this case, independent wholesalers of 5-Hour Energy sued the caffeinated drinks manufacturer for selling the product to Costco at lower price than it charged the independents.  The manufacturer also reimbursed Costco for its promoting the product every other month or so by offering it to Costco members at a reduced rate.  The district court did not abuse its discretion… Read More

The district court correctly dismissed plaintiff app developer's antitrust complaint against Apple for monopolizing the market for iPhone apps and rejecting plaintiff's apps.  The complaint failed to adequately identify the product market that Apple allegedly monopolized or restrained. Read More

Applying Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal. 5th 1130 to an at-will employment contract, this decision holds that to assert a tort claim for inducing breach of the contract, the plaintiff must allege independently wrongful conduct.  Here, plaintiff could not do so.  He lacked antitrust standing to rely on the antitrust violation that he had alleged as… Read More

To have standing to sue for an antitrust violation, the plaintiff must allege an injury arising from the aspect of the alleged antitrust violation that causes the evil at which the antitrust laws are aimed; namely, a reduction in competition.  Here, the alleged violation was a pre-merger agreement between the merging entities not to compete for each other's customers before… Read More

The district court erred in not finding that Apple's requirement that app developers sell through the Apple App Store was a separate service from its requirement that app developers use Apple's in-app payment system exclusively.  However, tie-ins that involve software that serves as a platform for other applications are not per se illegal.  Apple's tie in survived the rule of… Read More

Although the district court erred in holding that a contract of adhesion couldn't violate Sherman Act section 1 (which by its terms applies to every contract in restraint of trade), it properly applied the rule of reason test in holding that Apple's restrictions on app developers' sales (requiring sale through the Apple Store, payment of 30% of gross revenues to… Read More

An aftermarket for a single brand can be a viable product market but only when 1) the challenged aftermarket restrictions are “not generally known” when consumers make their foremarket purchase; (2) “significant” information costs prevent accurate life-cycle pricing; (3) “significant” monetary or non-monetary switching costs exist; and (4) general market-definition principles regarding cross-elasticity of demand do not undermine the proposed… Read More

This decision affirms a summary judgment on plaintiff's antitrust claim against a competing fast fashion retailer which had refused to buy from clothing vendors unless they quit selling to plaintiff.  Plaintiff failed to present evidence of a horizontal agreement among the clothing vendors to not sell to plaintiff.  A vertical agreement between defendant and each vendor was not a per… Read More

Group boycotts are per se antitrust violations only if the boycott cuts off access to a supply, facility, or market necessary to enable the boycotted firm to compete, the group possesses a dominant position in the market, and the boycott is not justified by a plausible argument that it is intended to enhance overall efficiency and make markets more competitive. … Read More

An online supplier of stock images, plaintiff tried but failed to allege a viable Sherman Act section 2 monopolization claim against Google.  It tried to allege only a monopolization of the online search advertising market in which it did not compete rather than the online search market in which it did compete.  To state a section 2 claim, the plaintiff… Read More

Reversing dismissal of this antitrust suit, the decision holds that plaintiff's complaint adequately alleged a violation of Sherman Act section 1 by reason of NAR's Clear Cooperation Policy which required realtors who listed properties on a rival multiple listing service, such as plaintiff's, to also list those properties on an NAR listing service.  The complaint alleged that the claimed violation… Read More

Plaintiff's complaint alleged a viable Sherman Act section 1 antitrust conspiracy among dentist members of the Dental Board of California to harass and intimidate plaintiff which sought to engage in a disruptive new direct to consumer model of marketing clear dental aligners to members of the public.  The members of the dental board were not immune from antitrust liability merely… Read More

Relying heavily on Anglo Irish Bank Corp. v. Superior Court (2008) 165 Cal.App.4th 969, this decision holds that a South Korean parent corporation is subject to specific personal jurisdiction in California based on activities its California subsidiary took in California in what the complaint charged was an antitrust conspiracy to fix spot market prices of fuel in California.  For personal… Read More

Plaintiffs alleging parallel conduct among competitors as a Sherman Act section 1 conspiracy must allege additional facts (plus factors) that place that parallel conduct in a context suggesting a preceding agreement.  Here, only one of the eight plus factors plaintiffs alleged weighed slightly in favor of conspiracy, which was insufficient to cross the threshold from possible to plausible.  The three… Read More

Substantial evidence supported the jury verdict finding that defendant had violated Sherman Act section 1 by agreeing with a competitor to fix the terms of credit they would make available to plaintiff.  Terms of credit are part of the price; hence, horizontal agreement to fix credit terms are illegal per se.  Substantial evidence also support the jury verdict finding defendant… Read More

Oakland lacked standing to bring a price-fixing antitrust claim against Oakland Raiders and other NFL teams arising out of the Raiders' move to Las Vegas.  A finding of antitrust standing requires a balancing of the nature of the plaintiff’s alleged injury, the directness of the injury, the speculative measure of the harm, the risk of duplicative recovery, and the complexity… Read More

The NCAA is not entitled to any special immunity from application of the Sherman Act.  The district court properly evaluated the NCAA's rules limiting athletes' compensation under the rule of reason analysis.  At either end of the spectrum of restraints, abbreviated analysis may suffice to show the challenged restraint either is or is not a violation of the Sherman Act. … Read More

In Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, the Supreme Court held that in the employment context, Bus. & Prof. Code 16600 is to be strictly enforced, prohibiting enforcement of any noncompetition clause except in circumstances that are exempted by B & P Code 16601, 16602 or 16602.5.  However, this case holds that outside the employment context, and… Read More