Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Black & Decker, Visa seek Supreme Court review in group boycott, conspiracy cases, (Feb 2, 2016)

By Greg Hammond, J.D.

Black & Decker U.S. Inc. and other tool companies are challenging a decision by the U.S. Court of Appeals in Richmond, which found that SD3, LLC—a safety technology developer—adequately alleged that the petitioners engaged in a group boycott of SD3’s “active injury mitigation technology” that prevents some hand and finger injuries caused by table saws. The appellate court determined that the federal district court in Alexandria, Virginia, partially erred in dismissing SD3’s antitrust claims against the petitioners (Black & Decker U.S. Inc. v. SD3, LLC, Dkt. 15-942).

Black & Decker presents two questions for review: (1) At the pleading stage, must an antitrust plaintiff similarly plead facts that tend to exclude an innocent explanation of the conduct in order to show allegations are plausible under Bell Atlantic v. Twombly, 550 U.S. 544 (2007)?; and (2) Must a court accept unsupported allegations about a defendant’s intentions or state of mind, such as allegations that offers to do business with the plaintiff were “disingenuous” and “pretextual”?

Antitrust, conspiracy. Visa Inc. and MasterCard Inc. are also seeking High Court review of a decision by the U.S. Court of Appeals in Washington, D.C., which revived price fixing claims that were brought against Visa, MasterCard, and affiliated banks by automatic teller machine (ATM) operators, as well as consumers who purportedly paid excessive fees when using these machines. The appellate court concluded that even where a member of a conspiracy appears to sever ties with other co-conspirators, there is no withdrawal if that member continues to support or benefit from the agreement (Visa Inc. v. Osborn, Dkt. 15-961; Visa Inc. v. Stoumbos, Dkt. 15-962).

The questions presented are identical in the two petitions: Whether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. §1, as the Court of Appeals held below, or are insufficient, as the Third, Fourth, and Ninth Circuits have held?

Attorneys: John D. Harkrider (Axinn, Veltrop & Harkrider LLP) for Black & Decker U.S. Inc. Kenneth A. Gallo (Paul, Weiss, Rifkind, Wharton & Garrison LLP) for MasterCard Inc. Anthony J. Franze (Arnold & Porter LLP) for Visa Inc.

Companies: Black & Decker U.S. Inc.; MasterCard Inc.; Visa Inc.

News: Antitrust