Posted by : Matthew Wild | On : April 8, 2008

On March 24, 2008, the United States District Court for the Northern District of California granted partial summary judgment and dismissed plaintiffs’ challenge to the Star Network’s fixed interchanges fees that was based on a per se violation of Section 1 of the Sherman Act. See In re ATM Fee Antitrust Litig., No. C 04-02676 CRB, 2008 WL 793876 (N.D. Cal. Mar. 24, 2008). This action challenges the fixed fee that the Star Network (through its members) pays to the owner of the ATM used by the cardholder. The court applied the rule of reason because the fixed fee is “reasonably necessary to the legitimate cooperative aspects of the venture.” Id. at *10 (citation omitted). The court concluded that fixed nature of “the fee promotes cooperation between the venture’s members and cannot be set individually. Under the circumstances, that is all Defendants must show to avoid a per se analysis.” Id. The court, however, certified the question for interlocutory appeal because there is “serious doctrinal confusion over the proper analysis of cooperative arrangements among competitors.” Id. at 12 (citation omitted).



Posted by : Matthew Wild | On : April 3, 2008

On March 28, 2008, the United States Court of Appeals for the First Circuit reversed the grant of class certification in In re New Motor Vehicles Canadian Export Antitrust Litigation, Nos. 07-2257, 07-2258, 07-2259, 2008 WL (1st Cir. Mar. 28, 2008). In that case, plaintiffs alleged a conspiracy among car manufacturers — a violation of Section 1 of the Sherman Act — to discourage U.S. customers from purchasing cars in Canada — which were cheaper at the time due to favorable exchange rates — for their use in the U.S. The manufacturers allegedly used a variety of mechanisms to discourage this customer practice such as refusing to honor warranties on Canadian cars. The United States District Court for the District of Maine certified two classes — (1) injunctive relief class under Section 16 of the Clayton Act and (2) damages class under various state antitrust and consumer protection laws. Defendants argued that plaintiffs’ claim for injunctive relief was moot because there is no longer a “realistic threat” of future harm. As a result of the weak dollar, there is no longer a realistic threat that manufacturers will conspire to keep consumers from importing cars from Canada. The Third Circuit agreed and reversed class certification on the injunctive relief claim with instructions to dismiss that claim. The Third Circuit also agreed with the District Court’s treatment of the damages class — that plaintiffs should have more time to develop their theories to support class certification. The Third Circuit, nevertheless, vacated the preliminary grant of class certification because it was concerned that subject matter jurisdiction no longer existed. With the federal claim now dismissed, there would have to be an independent basis for federal subject matter jurisdiction over the damages claims under state law. The District Court was instructed to determine if jurisdiction existed.