Posted by : Matthew Wild | On : March 18, 2013

On March 14, 2013, a jury in the United States District Court for the Eastern District of New York awarded $54,100,000 to an antitrust plaintiff class.  The jury found that the Chinese Vitamin C manufacturers engaged in price-fixing.  This verdict demonstrates that there is no need for a criminal prosecution for a successful civil suit.  This was the first case in which Chinese companies have been held liable for violating the United States antitrust laws.

Author: Matthew S. Wild, Wild Law Group PLLC



Posted by : Matthew Wild | On : August 9, 2012

On August 6, 2012, the Second Circuit brought reality back to standards governing summary judgment in antitrust cases.  See In re Publication Paper Antitrust Litig., 11-101-cv (2d Cir. Aug. 6, 2012).  Stora Enso North America (“SENA”) was acquitted of price fixing with UPM-Kymmene even though UPM’s CEO testified that he agreed with SENA’s CEO to fix prices.  A price fixing class action was later brought against SENA, its foreign parent and UPM (which settled).  Notwithstanding UPM’s CEO”s sworn testimony admitting the conspiracy, the district court granted summary judgment in favor of the defendants.  The Second Circuit reversed against SENA holding that a jury should decide the credibility of UPM’s CEO’s testimony.  The Second Circuit also held that there was sufficient proof of impact: “the demonstrable existence of an agreement between [the CEOs] to follow price increases announced by competitors, if proven, constitutes strong evidence that the alleged agreement caused at least some element of the subsequent price increases (e.g., amount or effective date), or, at a minimum, the inability of plaintiffs to negotiate below the list price. Furthermore, the causal link is presumed to be particularly strong when, as alleged here, the agreement is between executives at rival companies, each of whom has final pricing authority.”

There was no evidence of SENA’s parent’s involvement and therefore summary judgment in its favor was affirmed.

In any other type of case, I doubt that a court would grant summary judgment in face of a CEO’s admission or obvious evidence of causation and damages.  But with so many cases warning against finding the existence of a conspiracy (or causation from price increases) when it is plausible that the defendants acted independently, district courts lean to granting summary judgment even in face of direct evidence.  Such decisions would never fly in any other type of case.  Fortunately, the Second Circuit made clear that the plausibility of independent action as opposed to a conspiracy is not an appropriate consideration in the face of direct evidence of the agreement (and the subsequent price increase), and applied the standard governed by Rule 56.

Author: Matthew Wild, Wild Law Group PLLC



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

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



Posted by : Matthew Wild | On : May 30, 2008

On May 27, 2008, the Ninth Circuit in Gerlinger v., Inc., No. 05-178328, 2008 WL 2169401 (9th Cir. May 27, 2008), affirmed dismissal of a customer’s challenge to the arrangement between Amazon and Borders whereby Amazon took over operation of Borders’ internet bookstore. Amazon submitted affidavits showing that the prices paid by plaintiff were the same or lower since the arrangement with Borders. The Ninth Circuit held that Plaintiff did not suffer any injury and therefore lacked Article 3 standing to pursue his antitrust claim. This case marks the second time in about one month that an appellate court has addressed the Article 3 standing of an antitrust plaintiff. The May 16, 2008 post discusses Ross v. Bank of Am., N.A., No. 06-4755, 2008 WL 1836640 (2d Cir. Apr. 25, 2008), where the Second Circuit found that the antitrust plaintiffs had Article 3 standing. Although the Ross plaintiffs had not instituted arbitration proceedings or otherwise had a dispute with their credit card issuers, plaintiffs nevertheless had challenged the arbitration provisions in credit card agreements claiming that these provisions were inserted in the agreements as a result of a conspiracy among certain credit card issuers. According to the Second Circuit, the existence of the offending provisions alone were sufficient to confer standing.