sts of individuals who booked hotel rooms in Atlantic City, New Jersey, from June 2018 to the present. Believing that they received "artificially high" hotel room rates, plaintiffs filed a one-count complaint against eight Atlantic City casino-hotel operators, as well as the Cendyn Group LLC, a revenue management company that provided the algorithmic software platform, called "Rainmaker," purportedly used by the defendant casino-hotel operators.The AllegationsThe plaintiffs describe the Rainmaker software used by the defendants as gathering real-time pricing and occupancy data from hotels that use the software and allowing for "a clear and complete picture of market supply and demand and competitive dynamics at any given time." Using such pricing and occupancy data, the software's algorithm generates "optimal" room rates for each participating casino hotel, which the software then recommends to each casino hotel.The plaintiffs brought suit under Section 1 of the Sherman Antitrust Act (15 U.S.C. § 1), which requires that they show that defendants entered into an agreement or conspiracy relating to use of the software. By engaging with this third-party pricing system, the plaintiffs contend, the defendant casino-hotel operators acted in concert to use shared pricing recommendations and, thus, entered into a per se illegal price-fixing scheme or conspiracy, in violation of Section 1.Defendants Move to DismissIn their motion to dismiss, filed on Feb. 20, 2024, the defendants focused principally on the lack of an agreement or conspiracy to increase prices. Specifically, they argued that the plaintiffs failed to allege direct evidence – such as meetings, conversations or some form of communication – that would plausibly suggest an agreement among them. Likewise, the defendants argued that the plaintiffs did not allege circumstantial evidence related to any meaningfully similar conduct that would allow the court to infer the existence of an illegal agreement. Among other things, the de

Among other things, the court held that outsourcing the function that the Oracle software was intended to provide was part of the relevant market. Substitutes therefore went far beyond directly comparable systems to include alternative means for consumers to accomplish the same objective.Market Power and Foreclosing Competition An exclusive dealing agreement, or series of agreements, violates §1 of the Sherman Antitrust Act (15 USC §1) only when the “effect is to ‘foreclose competition in a substantial share’” of the relevant market. Allied Orthopedic Appliances Inc. v Tyco Health Care Group LP (9th Cir 2010) 592 F3d 991, 996 (citations omitted).

Quarterly Report (February 6, 2015), available athttp://www.sec.gov/Archives/edgar/data/57725/000110465915007227/a14-26533_110q.htm.4 Scott D. Hammond, Director of Criminal Enforcement, Antitrust Division, Department of Justice, "Cornerstones of an Effective Leniency Program," Address Before the ICN Workshop on Leniency Programs (November 22-23, 2004), available athttp://www.justice.gov/atr/public/speeches/206611.pdf.5 U.S. Department of Justice, Antitrust Division, Division Update Spring 2012, available athttp://www.justice.gov/atr/public/division-update/2012/criminal-program.html.6 Eric Holder, Attorney General, Speech at Auto Parts Press Conference (September 26, 2013), available athttp://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-1309261.html.7 Antitrust Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. No. 108-237, §§ 211-214, et seq. (codified at 15 U.S.C. § 1 note as amended by Pub. L. No. 111-190).8 Par Pharmaceuticals reports that the DOJ has requested information concerning "our authorized generic version of Covis's Lanoxin® (digoxin) oral tablets and our generic doxycycline products."

According to the Department of Justice’s press release, the Department’s investigation of the LFT-LCD market has led to seven other companies in this market previously pleading guilty to price fixing and paying fines in excess of $890 million. In its superseding indictment in the AUO case, AUO, AUOA and several of their employees, including executives of AUO resident in Taiwan, were charged with conspiring to fix prices for thin-film transistor liquid crystal display panels (“TFT-LCD”) in the United States and elsewhere in violation of Section 1 of the Sherman Act (15 U.S.C. 1). The indictment also charged executives of LG Philips LCD Co., Ltd. and Chunghwa Picture Tubes, Ltd., although not the companies, as being part of the conspiracy.

The FTAIA and related legislation enacted in 1982 sought to achieve clarity and limit the territorial reach of conduct proscribed by antitrust laws and, thus, promote greater legal certainty for U.S. export commerce. The FTAIA provided that the Sherman Act (15 USC §1-7) applies to competitive restrictions affecting import trade, but not to competitive restrictions affecting trade or commerce with foreign nations (non-import trade) unless the conduct has a direct, substantial and reasonably foreseeable effect “on trade which is not trade with foreign nations” (i.e., domestic trade), import trade with foreign nations, or export trade with foreign nations by a person engaged in the U.S. in such export trade; and the restrictive effect gives rise to a claim under other provisions of 15 USC §1-7. Again, much of the difficulties with applying the statute stem from its turgid language, which has proven difficult to interpret and apply from the outset.Confusion Substitutes for Desired Clarity as Antitrust Becomes “Prime Time” Following 20 years of increasing uncertainty, the U.S. Supreme Court interpreted the FTAIA for the first time in the context of an international price-fixing cartel case involving vitamins.

[Editor’s note: This case is also addressed under the Personal Jurisdiction section of this report.] Court of Appeals Sharply Limits Price-Fixing Claims Against Non-US Defendants That Sold Products to Non-US Companies for Resale in the USMotorola Mobility, LLC v. AU Optronics Corp., US Court of Appeals for the Seventh Circuit, March 27, 2014 This procedurally complicated case involves price-fixing claims brought under Section 1 of the Sherman Act, 15 U.S.C. § 1, against manufacturers of liquid-crystal display (LCD) panels used in mobile phones. The plaintiff Motorola brought claims arising from three categories of purchases: purchases of LCD panels by Motorola that were delivered directly to Motorola facilities in the US (Category I), and purchases of LCD panels by Motorola’s non-US affiliates that were delivered to the affiliates’ manufacturing facilities outside the US, where they were incorporated into mobile phones that later were either sold in the US (Category II) or sold outside the US (Category III).

s), Rainmaker (the third-party vendor engaged by the Las Vagas Strip hotels) allegedly only relied on public pricing information, such as pricing available on the hotels’ websites. See Defs. Joint Mot. to Dismiss 1st Am. Compl. with Prejudice at 25, MGM Resorts Int’l, Case No. 2:23-cv-00140-MMD-DJA (D. Nev. Feb. 14, 2024), ECF No. 160. The court in MGM Resorts International granted the defendants’ motion to dismiss without prejudice, and the defendants have recently filed their motion to dismiss the plaintiffs’ first amended complaint with prejudice.Potentially Significant Exposure in Antitrust Class ActionsAntitrust class actions, especially those consolidated as MDLs, are notoriously complex and expensive to defend, and could result in very substantial financial exposure.Section 1 of the Sherman Act declares as illegal “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Section 4 of the Clayton Act allows private parties to recover “threefold the damages” sustained from defendants’ violation of Section 1 of the Sherman Act, as well as “reasonable attorney’s fee.” 15 U.S.C. § 15. In addition, the U.S. Supreme Court has held that defendants in violation of the Sherman Act and the Clayton Act are subject to joint and several liability without a right to seek contribution from co-conspirators. See Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 646 (1981). The combination of treble damages, attorneys’ fees, and joint and several liability under the federal antitrust law could lead to damages awards in the hundreds of millions— or even billions—against one defendant.However, winning price-fixing cases under the federal antitrust law is no easy feat for class action plaintiffs. Courts and antitrust/economics scholars have long recognized that there may be procompetitive justifications for agreements among competitors. They are therefore hesi

On March 6, 2024, Paula Blizzard, the California Department of Justice’s antitrust chief, announced on a panel at the American Bar Association’s National Institute on White Collar Crime that the California Attorney General’s Office plans to revive criminal antitrust prosecutions under California’s Cartwright Act. See Cal. Bus. & Prof. Code § 16700 et seq.IN DEPTHBlizzard’s announcement addressed the following points:The attorney general’s office intends to coordinate with the US Department of Justice (DOJ) Antitrust Division in its criminal enforcement efforts. DOJ’s Acting Chief of Criminal Enforcement Emma Burnham echoed the sentiment and addressed how state and federal agencies may work together in this capacity.The Cartwright Act, California’s flagship antitrust statute, was intended to reach anti-competitive conduct beyond its federal counterpart, the Sherman Act. See 15 U.S.C. §§ 1-7. Specifically: Violations of the Cartwright Act carry heavy criminal penalties, up to hundreds of thousands and even millions of dollars for individuals and companies alike.Third parties supplying information in furtherance of a conspiracy may constitute actionable “furnish[ing of] information” under the Cartwright Act.Cartwright Act violations need not meet the heightened pleading standards under Federal Rules of Civil Procedure 9(b) or the enhanced pleading standards for fraud. In Blizzard’s words, “You do not have to be doing the types of things that you do, for instance, in an enhanced pleading for fraud … And according to the [Cartwright Act] I also don’t have to say very much, so we’ll see how that goes.”The act deems noncompetes and no-poach agreements as per se illegal, which was recently codified in state legislation in early 2024. This legislative move parallels DOJ’s enforcement efforts over the last three years targeting nonsolicitation and no-poach agreements as per se i

] in any [conspiracy against trade], or take[] part therein, or aid[] or advise[] in its commission, or who as principal, manager, director, agent, servant or employee, or in any other capacity, knowingly carries out any of the stipulations, purposes, prices, rates, or furnishes any information to assist in carrying out such purposes, or orders thereunder or in pursuance thereof.” Cal. Bus. & Prof. Code § 16755(a). Violations can result in criminal penalties for individuals of up to three years in county jail and fines of the greater of $250,000 or two times the gain or loss from the conduct, and for corporations, fines of the greater of $1 million or two times the gain or loss from the conduct. Cal. Bus. & Prof. Code §§ 16755(a)(1)-(2).While speaking on a panel about criminal antitrust enforcement at the ABA National Institute on White Collar Crime in San Francisco, Ms. Blizzard emphasized that the Cartwright Act covers “broader” conduct than its federal counterpart, the Sherman Act, 15 U.S.C. §§ 1-7, highlighting that even third parties supplying information in furtherance of a conspiracy may constitute actionable “furnish[ing of] information” under Section 16755. She also posited that pleading a Cartwright Act violation does not require meeting the heightened pleading standard of Federal Rule of Civil Procedure 9(b). She stated that the significant penalties authorized by the Cartwright Act should serve as an important deterrent. Finally, Ms. Blizzard highlighted new California legislation that went into effect on January 1, 2024, S.B. 699 and A.B. 1076, confirming the illegality of non-compete and no-poach agreements.Ms. Blizzard further indicated that the California AG intends to coordinate with the U.S. Department of Justice Antitrust Division (DOJ), as well as California district attorneys, who have independent authority to charge offenses under the Cartwright Act. In doing so, the California AG is likely to evaluate and potentially borrow elements from the DOJ’s existing cr

other third-party NIL deals. Notably, if they can establish antitrust liability, plaintiffs in the damages classes will likely be awarded three times their actual damages pursuant to Section 4 of the Clayton Act, which entitles successful antitrust plaintiffs to treble damages. As such, the NCAA is potentially facing over $4 billion in damages.Ohio v. NCAA: The Transfer Eligibility RuleMore recently, on January 18 of this year, a handful of states – joined by the District of Columbia and the Department of Justice – brought a challenge to NCAA bylaw 14.5.5.1, dubbed the “Transfer Eligibility Rule.” That rule “imposes a one-year delay in the eligibility of certain college athletes transferring between NCAA member institutions and unjustifiably restrains the ability of these college athletes to engage in the market for their labor as NCAA Division I college athletes.” Plaintiffs “seek[] declaratory and injunctive relief against [the NCAA] for a violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.” In December, the judge in Ohio v. NCAA granted a temporary restraining order preventing enforcement of the NCAA’s multi-time transfer rules. Shortly thereafter, the parties reached a preliminary injunction agreement, which granted immediate eligibility to multi-time transfers through the fall.Plaintiffs allege that the Transfer Eligibility Rule affects two broad categories of relevant labor markets:Athletic services in men’s and women’s Division I basketball and football bowl subdivision (FBS) football, wherein each college athlete participates in his or her sport-specific market; andAthletic services in all other men’s and women’s Division I sports, wherein each athlete participates in his or her sport-specific market.Within these markets, plaintiffs identified three major harms experienced by student athletes due to the Transfer Eligibility Rule. First, “the Transfer Eligibility Rule harms college athletes by discouraging them from transferring to a different institution that may