On May 27, 2008, the Ninth Circuit in Gerlinger v. Amazon.com, 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.
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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.