Home / State Antitrust and Consumer Protection Claims

Aug

29

District of Columbia Sues ExxonMobil and Its DC Distributors, Seeking to End Their Exclusive-Supply Agreements and Lower Retail Gasoline Prices

Posted by : Matthew Wild | On : August 29, 2013

Category: Antitrust, Government Investigations, State Antitrust and Consumer Protection Claims, State Attorneys General

PRESS RELEASE:

“WASHINGTON, D.C. – The District of Columbia filed a lawsuit against ExxonMobil Oil Corporation and its gasoline distributors for Washington, D.C., to stop enforcement of exclusive-supply agreements that make one group of affiliated distributors the only suppliers of Exxon-branded gasoline in D.C., Attorney General Irvin B. Nathan announced today. The complaint, filed in D.C. Superior Court, alleges that the exclusive-supply agreements violate the District’s Retail Service Station Act.

The affiliated distributors – Capitol Petroleum Group, LLC, Anacostia Realty, LLC, and Springfield Petroleum Realty, LLC – are the exclusive gasoline suppliers for about 60% of the 107 gasoline stations in D.C., including all 31 Exxon stations, 19 of 20 Shell stations, all 12 Valero stations, and 3 unbranded stations.  The District’s lawsuit challenges agreements that make these affiliated distributors the exclusive suppliers of Exxon-branded gasoline for the 27 independently-operated Exxon stations in D.C., or about 25% of the gasoline stations in the city.

The exclusive-supply agreements, or earlier versions of them, were established by ExxonMobil and were transferred in 2009 to the affiliated distributors, along with ExxonMobil’s ownership of the 30 D.C. Exxon stations to which the agreements then pertained.  According to the District’s complaint, these supply agreements can now be enforced either by the affiliated distributors or by ExxonMobil through its separate agreements with other area distributors.

The District alleges that the exclusive-supply agreements allow the affiliated distributors to “set the wholesale prices paid for Exxon-branded gasoline in D.C., depriving D.C. residents . . . of the benefits of competition in the wholesale supply of Exxon-branded gasoline.”

“Under the District’s gasoline marketing law, a retail gasoline dealer is free to purchase a brand of gasoline from any supplier of the brand,” Attorney General Nathan said.  “Our suit seeks to end these unlawful supply restrictions, increase wholesale competition, and bring down retail prices at the pump.”

Apr

22

Kansas Enacts Legislation Making Resale Price Maintenance Subject To The Rule Of Reason

Posted by : Matthew Wild | On : April 22, 2013

Category: Antitrust, Resale Price Maintenance, Rule of Reason, State Antitrust and Consumer Protection Claims

Overruling the recent Kansas Supreme Court decision in  O’Brien v. Leegin Creative Leather Products, Inc.  discussed in the May 8, 2012 Post, the Kansas legislature has mandated that resale price maintenance is subject to the rule of reason.  This legislation is remarkable in light of all the uproar over the United States Supreme Court’s decision in Leegin Creative Leather Products v. PSKS, 127 S.Ct. 2705 (2007), that made resale price maintenance subject to the rule of reason.  For example, as discussed in previous posts of May 4, 2009 and October 29, 2009, the Maryland legislature enacted the first Leegin repealer statute making resale price maintenance per se unlawful and 41 state attorneys general have urged Congress to repeal Leegin.

Author: Matthew S. Wild, Wild Law Group PLLC

 

Feb

14

Ninth Circuit Holds That Cartwright Act Has Extra-Territorial Reach

Posted by : Matthew Wild | On : February 14, 2013

Category: Antitrust, State Antitrust and Consumer Protection Claims

The Ninth Circuit, in AT&T Mobility LLC v. AU Optronics Corp., No. 11-16188 (9th Cir. Feb. 14, 2013), held that the Cartwright Act (the California antitrust law) applies, consistent with due process, to conspiratorial conduct that took place in California even though plaintiffs (indirectly) purchased the price-fixed goods outside of California.  This decision demonstrates the breadth of the Cartwright Act to reach purchases outside of California as long as “defendant’s conspiratorial conduct was sufficiently connected to California.”

Author: Matthew S. Wild, Wild Law Group PLLC

May

08

Resale Price Maintenance Is Per Se Unlawful In Kansas

Posted by : Matthew Wild | On : May 8, 2012

Category: Antitrust, Per Se Analysis, Resale Price Maintenance, Rule of Reason, State Antitrust and Consumer Protection Claims

On May 4, 2012, the Kansas Supreme Court held in O’Brien v. Leegin Creative Leather Products, Inc. that resale price maintenance is a per se offense of the Kansas antitrust law.  The Kansas statute differs meaningfully (with express prohibitions on agreements involving the pricing of goods) from the general language of § 1 of the Sherman Act (prohibiting only agreements in “restraint of trade”).  As noted in earlier Posts, the U.S. Supreme Court’s decision in, Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), which held that resale price maintenance is subject to the rule of reason under §1 of the Sherman Act, has not been favorably received.  Congress has proposed legislative repeal; several state attorneys’ general have obtained consent decrees prohibiting such practices as per se offenses of their state antitrust laws; and Maryland repealed Leegin.  It remains to be seen how long Leegin survives.  Companies should remain cautious in imposing RPM programs because they may still face substantial liability under state law.

Author: Matthew S. Wild, Wild Law Group PLLC

Oct

06

Ninth Circuit Joins the Fourth Circuit in Holding that Parens Patriae Actions Are Not Subject to Removal under CAFA

Posted by : Matthew Wild | On : October 6, 2011

Category: Antitrust, State Antitrust and Consumer Protection Claims, State Attorneys General

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On October 3, 2011, the Ninth Circuit held that parens patriae actions commenced by state attorneys general are not “class actions” under the Class Action Fairness Act (“CAFA”) and, therefore, could not be removed from federal to state court under the CAFA removal provisions.  Washington v. Chimei Innolux Corp., No. 11–16862, 2011 WL 4543086 (9th Cir. Oct. 3, 2011).  The California and Washington attorneys general commenced actions under state law in their respective state courts to recover damages for their citizens as a result of price fixing among LCD manufacturers.  These actions are based on the same allegations in MDL No. 1827.  Defendants removed them asserting jurisdiction under CAFA.  CAFA creates subject matter jurisdiction and authorizes removal in a class action where there is minimal diversity of citizenship between a defendant and one named or unnamed putative class member and the amount sought by the class exceeds $5,000,000.  Defendants argued that a parens patriae action is just like a class action and the CAFA removal provision should thus apply.  Joining the Fourth Circuit, West Virginia ex rel. McGraw v. CVS Pharm., Inc., 646 F.3d 169 (4th Cir.2011), the Ninth Circuit held that the language of CAFA does not permit treating parens patriae actions as class actions.  It then affirmed the district court’s remand orders.

Jan

19

California Attorney General Halts Resale Price Maintenance

Posted by : Matthew Wild | On : January 19, 2011

Category: Antitrust, Consent Decrees, Government Investigations, Per Se Analysis, Resale Price Maintenance, Rule of Reason, State Antitrust and Consumer Protection Claims, State Attorneys General

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On January 11, 2011, Bioelements and the California Attorney General entered into a consent decree that enjoins Bioelements from entering into any agreements with retailers and distributors concerning what price they may charge for Bioelements’ products and to send notice to all retailers and distributors that any such polices are immediately rescinded.  The action was brought in California Superior Court under the Cartwright Act, which the California Attorney General has interpreted to provide per se treatment for resale price maintenance in contrast to Section 1 of the Sherman Act after Leegin.  See March 12, 2010 Post.  Notably, the injunction extends to all of Biolelements’ transactions even if they take place outside of California.  Bioelements also had to pay $51,000 in fines and expenses.  This action is a cautionary tale that companies cannot rely on Leegin that resale price maintenance will be subject to lenient rule of reason treatment.  A number of state attorneys general have brought resale price maintenance actions under their state laws and Maryland amended its antitrust law expressly to prohibit resale price maintenance.

Jan

05

Class of EA Madden NFL, NCAA or Arena Football Indirect Purchasers Certified for California Antitrust Violations

Posted by : Matthew Wild | On : January 5, 2011

Category: Antitrust, Class Certfication, Damages, State Antitrust and Consumer Protection Claims

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On December 21, 2010, the United States District Court for the Northern District of California in Pecover v. Electronic Arts, Inc., No. 08-cv-02820-VRW, Dkt. #198 (N.D. Cal. Dec. 21, 2010), certified a nationwide class of consumers, who purchased Madden NFL, NCAA or Arena Football since January 1, 2005.  The suit alleges that that EA’s exclusive license agreements violated the Cartwright Act.  The case is important for two distinct reasons.  First, the Court held that California law applied to all claims regardless of where the consumers purchased the products because of EA’s nexus to California.  This is a tremendous development because it allows for a nationwide class based on a single state law and therefore eliminates conflict between different state laws, which is often a barrier to certification of nationwide class actions.  Second, the Court held that the consumers provided a model that would show that they suffered common impact and therefore satisfied the predominance requirement for class certification — which can be a difficult element to satisfy.  The decision appears here.  ea class cert

Jul

07

Marsh & McLennan Executives’ Convictions Overturned

Posted by : Matthew Wild | On : July 7, 2010

Category: Antitrust, Criminal, New York Cases, State Antitrust and Consumer Protection Claims, State Attorneys General

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On July 3, 2010, the Justice Yates (the trial judge) overturned his decision after a bench trial convicting William Gilman and Edward McNenny of violating the Donnolly Act (New York’s antitrust statute) for rigging bids on insurance contracts.  According to the New York Times, he did so based on “newly discovered contradictory statements made by witnesses who cooperated with prosecutors, and the suppression of documents that would have been ‘invaluable’ to the defense.”  Gilman and McNenny are the only Marsh executives that were convicted after a trial.  As reported in earlier posts, Marsh paid an $850 million civil penalty and was not prosecuted.  One former Marsh executive pleaded guilty and others had their cases voluntarily dismissed by the government or were acquitted after a bench trial.

Mar

31

Watershed Supreme Court Decision: Rule 23 Requires Class Actions To Go Forward Even Though State Law Mandates Otherwise

Posted by : Matthew Wild | On : March 31, 2010

Category: Antitrust, Class Certfication, New York Cases, State Antitrust and Consumer Protection Claims

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The Supreme Court held today that district courts must follow Fed.R.Civ. 23 in class actions alleging violations of state law even though the state statute prohibits prosecution of the claim as a class action.  In Shady Grove Orthopedic Assoc. v. Allstate Insurance Co., No. 08-1008, 2010 WL 1222272 (Mar. 31, 2010), the Court held that Rule 23 trumps NY CPLR 901(b), which prohibits class actions under New York statutes authorizing a claim for statutory or multiple damages.  That statute has barred claims under New York’s antitrust statute (the Donnelly Act) as well its Deceptive Trade Practices Act.  Numerous state consumer protection statutes likewise have prohibitions on class actions.  Shady Grove breathes life into class actions in federal court under those statutes.

Mar

12

Resale Price Maintenance Is a Per Se Violation of California Law

Posted by : Matthew Wild | On : March 12, 2010

Category: Antitrust, Consent Decrees, Per Se Analysis, Resale Price Maintenance, Rule of Reason, Section 1 (Sherman Act), State Antitrust and Consumer Protection Claims, State Attorneys General

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On February 23, 2010, the California Attorney General entered into a consent decree with Dermaquest, Inc., which prohibits Dermaquest from engaging in resale price maintenance.  Specifically, the order enjoins Dermaquest from requiring resellers to charge a specified price or to increase their prices.  The action was brought under the Cartwright Act and the Unfair Competition Law.  California now joins Illinois, New York and Michigan (see March 31, 2008 Post) in treating resale price maintenance as a per se offense in violation of its state antitrust law even though such conduct is subject to rule of reason review under section 1 of the Sherman Act after Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007).  This case reinforces the dangers to a manufacture when it implements a resale price maintenance program under the belief that because such conduct might be permissible under the Sherman Act, there is no genuine exposure.  The California complaint and consent decree appear here:Dermaquest Complaint  and Dermaquest Judgment.