Howard Ullman – Orrick, Herrington & Sutcliffe

“And the Plaintiffs Don’t Have to Sue My Competitors Because? . . . .”

One of the pet peeves of antitrust defendants is that the joint-and-several liability rule often means that plaintiffs can pick and choose which defendants to sue. (Plaintiffs will say – that’s a design feature of the antitrust…more
| Antitrust & Trade Regulation, Civil Procedure, Commercial Law & Contracts

SCOTUS Reaffirms that in Antitrust Cases, It Gives Less Deference to Precedent

Yesterday, in Kimble v. Marvel Entertainment, LLC, the U.S. Supreme Court upheld the rule first announced in Brulotte v. Thys Co., 379 U.S. 29 (1964), that a patentee cannot collect royalties on sales made after expiration of…more
| Antitrust & Trade Regulation, Civil Procedure, Civil Remedies, Intellectual Property

Is Antitrust Relevant for Startups, Emerging, and Non-Dominant Firms?

The answer is (surprise!) “yes.” There are a number of ways in which antitrust law is relevant to emerging and non-dominant companies. Those firms may: Need to deal with the dominant firms in their markets,…more
| Antitrust & Trade Regulation, Business Organizations, Commercial Law & Contracts, Intellectual Property

Wholesale Grocery Products Case Raises Questions About How and When to Apply Per Se Rule and Rule of Reason

The Supreme Court recently denied review in In re: Wholesale Grocery Products Antitrust Litigation, an action that came up from the District of Minnesota and the Eighth Circuit. Substantively, the case is a useful reminder about…more
| Antitrust & Trade Regulation, Civil Procedure, Commercial Law & Contracts, Mergers & Acquisitions

Do State Bar Associations Have Antitrust Risk?

It was only a matter of time after the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015) (*), that a state bar association would face an antitrust…more
| Antitrust & Trade Regulation, Civil Procedure, Commercial Law & Contracts

Can Trademark Abuse Constitute Monopolization?

As far as antitrust law is concerned, trademarks are the unwanted stepchildren of intellectual property. The conventional wisdom is that trademarks – whose exclusionary effect is very attenuated, if it exists at all – do not…more
| Antitrust & Trade Regulation, Civil Procedure, Commercial Law & Contracts, Intellectual Property

Can Computers Conspire to Fix Prices?

Strange as it sounds, maybe we’re getting closer to the day we have to seriously consider liability for computer conspiracies. On April 6, David Topkins, a former executive of an e-commerce seller of posters, prints and…more
| Antitrust & Trade Regulation, Commercial Law & Contracts, Science, Computers, & Technology

SCOTUS Holds Natural Gas Act Does Not Preempt State Law Antitrust Claims

In Oneok, Inc. v. Learjet, Inc., Case No. 13-271 (Apr. 21, 2015), the U.S. Supreme Court held that the Natural Gas Act did not preempt retail customers’ state law antitrust claims against interstate gas pipeline operators for…more
| Antitrust & Trade Regulation, Civil Procedure, Commercial Law & Contracts, Conflict of Laws, Energy & Utilities

Sixth Circuit Applies Cost Screen to Tying by Differential Pricing

In Collins Inkjet Corp. v. Eastman Kodak Co., No. 14-3306 (6th Cir. March 16, 2015), the U.S. Court of Appeals for the Sixth Circuit held that differential pricing – charging more for one product when the customer does not also…more
| Antitrust & Trade Regulation, Civil Procedure, Civil Remedies, Commercial Law & Contracts

Return of Robinson-Patman Act and Resale Price Maintenance Litigation?

A quick note on a few recent developments suggesting that RP and RPM litigation is not yet dead. First, on February 2, 2015, a court refused to dismiss claims against Clorox arising from its refusal to sell a small regional…more
| Antitrust & Trade Regulation, Commercial Law & Contracts

San Jose Strikes Out in Baseball Antitrust Challenge

In City of San Jose v. Office of the Commissioner of Baseball, Case No. 14-15139 (9th Cir. Jan 15, 2015), the United States Court of Appeals for the Ninth Circuit applied the judge-made antitrust exemption for baseball to bar a…more
| Antitrust & Trade Regulation, Art, Entertainment, & Sports Law, Civil Procedure, Commercial Law & Contracts, Constitutional Law

Can the State Seek Restitution After a Class Action Settlement?

In The People of the State of California v. IntelliGender, LLC, 771 F.3d 1169 (9th Cir. Nov. 7, 2014) (Wardlaw, J.), the Ninth Circuit said the answer is “no.” A federal court had approved a class action settlement involving…more
| Antitrust & Trade Regulation, Civil Procedure, Civil Remedies, Communications & Media Law, Consumer Protection

Motorola’s FTAIA Quest Ends With a Whimper in the Seventh Circuit

On November 26, 2014, the Seventh Circuit (Posner, J.) issued its order upon rehearing of Motorola Mobility LLC v. AU Optronics Corp. (Case No. 14-8003). Motorola still effectively lost the appeal, but the Court’s more…more
| Antitrust & Trade Regulation, Civil Procedure, Commercial Law & Contracts, International Law & Trade

Three Billy Goats Gruff

(You know . . . the fairy tale about trolls.) This summer, PwC published its 2014 Patent Litigation Study. The tagline of the study is “[a]s case volume leaps, damages continue general decline.”…more
| Civil Procedure, Civil Remedies, Commercial Law & Contracts, Intellectual Property

Could Amazon Possibly Be a Monopolist? (Updated) (Again)

Franklin Foer, at the New Republic, argues that the answer is yes. The alleged “crime”: predatory pricing — if not express, than at least in spirit…more
| Antitrust & Trade Regulation, Commercial Law & Contracts, Criminal Law
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