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.
Posted by : July 7, 2010| On :
Posted by : July 2, 2010| On :
Yesterday, the United States District for the Eastern District of Michigan denied a motion to dismiss the Direct Purchasers’ Consolidated Amended Class Action Complaint in In re Packaged Ice Antitrust Litig., MDL 1952 (Opinion). It held, “Plaintiffs’ CAC contains enough factual content to plausibly suggest that these Defendants participated in a nationwide conspiracy to allocate customers and territories and raises a reasonable expectation that discovery will reveal evidence of illegal agreement. The CAC provides Defendants with fair notice of Plaintiffs’ claims and the grounds on which they are based, such that these Defendants will know how to respond. The present complaint succeeds where Twombly’s failed because the complaint alleges specific facts sufficient to plausibly suggest that the parallel conduct alleged was the result of an agreement among the defendants.” Slip op. at 38 (citation omitted). It also held that the Complaint contains sufficient allegations of fraudulent concealment to defeat the motion to dismiss on statute of limitations grounds.
Kohn, Swift & Graf, P.C. is interim lead counsel for the direct purchaser class.
Wild Law Group PLLC is interim lead counsel for the indirect purchaser class.
Posted by : March 31, 2010| On :
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.
Posted by : March 11, 2010| On :
Wild Law Group PLLC (“WLG”) has been named interim lead and liaison counsel for the indirect purchaser class in In re Packaged Ice Antitrust Litig., MDL No. 1952 and interim lead counsel for the indirect purchaser class in In re Dairy Farmers of America Antitrust Litig., MDL No. 2031. The WLG attorneys (Matthew S. Wild, Max wild and John Perrin) will continue their roles as interim lead and liaison counsel in these cases that they had at predecessor law firms.
WLG was formed in March 2010. With offices in New York, Michigan and London, WLG is a litigation boutique that specializes in antitrust, class actions and commercial litigation. WLG has been named lead class counsel in multidistrict litigation. WLG attorneys have represented clients in some of the largest antitrust controversies in the United States. They have tried more than 100 cases to juries in state and federal courts.
Posted by : December 10, 2009| On :
On November 19, 2009, the New York Attorney General’s motion to dismiss the charges arising from alleged bid rigging of insurance policies against Thomas T. Green, Jr. and William L. Burnie (former Marsh executives) and Geri Mandel (a former Zurich executive) was granted by Justice James Yates. New York Attorney General Andrew Cuomo sought dismissal in light of the acquittals of Joseph Peiser, Greg Doherty and Kathleen Drake, former Marsh executives, after an 11-month bench trial before Justice Yates, who was to preside at the upcoming trial. These acquittals were reported in the October 26, 2009 Post. As you may recall (and discussed in the February 22, 2008 Post), two Marsh executives were convicted of Donnelly Act violations after a 10-month bench trial. These cases were brought by then New York Attorney General Elliot Spitzer. Marsh paid $850 million to settle and another Marsh executive pleaded guilty.
Posted by : December 9, 2009| On :
On November 25, 2009, the court in In re Static Random Access Memory Antitrust Litig., No. C 07-01819 CW, 2009 WL 4263524 (N.D. Cal. Nov. 25, 2009), certified 28 indirect purchaser classes – one nationwide class for injunctive relief under section 16 of the Clayton Act and 27 separate indirect purchaser damages classes under the laws of Arizona, Arkansas, California, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Washington, West Virginia, Wisconsin, Puerto Rico and the District of Columbia.
Injunction: the court certified the class under Rule 23(b)(2). It rejected the standing challenge holding “Plaintiffs have alleged sufficient facts to establish Article III standing for their nation-wide injunctive relief class. IP Plaintiffs allege that Defendants and their co-conspirators entered into a continuing conspiracy in restraint of trade artificially to raise prices for SRAM in the United States. They further allege that these market-wide overcharges were then passed through the chains of distribution, and that they were injured by paying supra-competitive prices when they indirectly purchased Defendants’ products.” The court also rejected defendants’ argument “because IP Plaintiffs seek to certify a nation-wide injunctive class from November 1, 1996 through December 31, 2006, they have impliedly alleged that the conspiracy ended in 2006. However, a finite proposed class period does not defeat certification of a class under Rule 23(b)(2). See, e.g., Jaffe v. Morgan Stanley & Co., 2008 WL 346417, at *3 (N.D.Cal.) (certifying injunctive-relief class for settlement affecting persons employed by the defendants “at any time between October 12, 2002 and December 3, 2007). Further, IP Plaintiffs allege that the same market conditions that facilitated the conspiracy from 1996 to 2006 continue today. They allege that Defendants’ price-fixing resulted from a systematic, repeated pattern of sharing sensitive competitive information which was greatly facilitated by the cross-competitor business relationships that still exist. Thus, there is alleged a significant risk that the conspiracy will persist or reform in the future.”
Individual state damages classes: the court certified 27 different classes based on individual state law. The court rejected “Defendants[’] … concern that [it] will be unable to manage state-law claims from twenty-seven state classes” holding “there is no qualitative difference between a federal district court considering class certification of state claims under that state law and a federal court serving as a multi-district litigation forum performing the same task for many federal courts. Moreover, courts frequently certify classes under the laws of multiple jurisdictions. See, e.g., Norvir Anti-Trust Litig., 2007 WL 1689899, at *8 (N.D.Cal.) (certifying class under the common law of forty-eight states); In re Pharm. Indus. Average Wholesale Price Litig., 233 F.R.D. 229, 230-31 (D.Mass.2006) (certifying multi-state defendant subclasses under the consumer protection laws of forty-one states).” In holding that the individual issues predominated over the individual issues, the court held that “there [wa]s a reasonable method for determining on a class-wide basis whether and to what extent that overcharge was passed on to each of the IP Plaintiffs at all levels of the distribution chain.”
Experts: the court rejected each parties’ challenge to the other parties’ expert holding that the appropriate standard is “whether the expert evidence is sufficiently probative to be useful in evaluating whether class certification requirements have been met.” The court made short shrift of the challenges holding “Although each side presents myriad valid challenges to the other’s expert, the Court concludes that these challenges are of the type that go to the weight of the evidence, not the admissibility. … The parties’ motions to exclude reflect disagreement with the opposing parties’ position; however, this disagreement does not warrant exclusion.”
Posted by : October 29, 2009| On :
In letters dated October 27, 2009 (State AG Letter re HR 3190; State AG Letter re S 148), 41 state attorneys general wrote to Congress asking them to overrule Leegin Creative Leather Product, Inc. v. PSKS, Inc., 551 U.S. 877 (2007). In Leegin, the Supreme Court held that resale price maintenance — the practice in which a manufacturer requires a retailer to sell its products at a certain price — was subject to the rule of reason. In doing so, the Court overruled Dr. Miles Medical Co. v. John D. Park & Sons, Co., 220 U.S. 373 (1911), which held that resale maintenance is a per se violation of section 1 of the Sherman Act. The state attorneys general urge passage of H.R. 3190, which provides that “[a]ny contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler or distributor shall violate section 1 of the Sherman Act.” As reported in the May 23, 2008 Post, 35 state attorneys general wrote to Congress on May 8, 2008 asking that it enact nearly identical legislation (S. 2261).
Practitioners should know that resale price maintenance can still be a per se violation of state antitrust laws. As reported in the May 4, 2009 Post, Maryland enacted such a law. And as reported in the March 31, 2008 Post, the New York, Michigan and Illinois attorneys general brought an action against Herman Miller in which they alleged that Herman Miller’s resale price maintenance program was a per se violation of their state antitrust laws. Herman Miller entered into a consent decree.
Posted by : October 26, 2009| On :
Joseph Peiser, Greg Doherty and Kathleen Drake, former Marsh executives, were acquitted after an 11-month bench trial before Justice James Yates of violating New York’s antitrust law — the Donnelly Act. They were acquitted of bid-rigging in connection with the sale of insurance policies. As you may recall (and discussed in the February 22, 2008 Post), two Marsh executives were convicted of Donnelly Act violations after a 10-month bench trial. These cases were brought by then New York Attorney General Elliot Spitzer. Marsh paid $850 million to settle and another Marsh executive pleaded guilty.
Posted by : October 16, 2009| On :
Levitt & Kaizer, on behalf of the class of indirect purchasers in In re Packaged Ice Antitrust Litig., MDL No. 1952 and the individual class representatives, asserted today the class’ rights as victims under the Crime Victims Rights Act (18 U.S.C. 3771) in connection with the criminal prosecution of Arctic Glacier and its former executives. They requested the opportunity to be heard before the court decides whether to accept any plea agreements. They also requested that the court postpone the upcoming arraignment of Arctic Glacier on October 27, 2009 and provide them with 30 days’ notice before the Court accepts any plea agreement. A copy of their letter is available here: CVRA Letter
As previously reported, these defendants entered into plea agreements on October 14, 2009. In apparent violation of the CVRA, the government entered into the plea agreements without conferring with the indirect purchasers beforehand. See, e.g., In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (“the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain”). The CVRA provides, inter alia, “[t]he right to reasonable, accurate, and timely notice of any public court proceeding … involving the crime,” “the right to confer with the attorney for the government” and “[t]he right to be reasonably heard at any public proceeding in the district court involving … plea [or] sentencing.” 18 U.S.C. § 3771(a)(2)&(4)&(5). The CVRA further provides that “the court shall ensure that the crime victim is afforded the[se] rights.” 18 U.S.C. § 3771(b)(1).
Levitt & Kaizer and the Law Offices of Max Wild are interim co-lead counsel for the indirect purchaser class in In re Packaged Ice Antitrust Litig., MDL No. 1952. The Perrin Law Firm is liaison counsel for the indirect purchaser class.