Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Mar 4, 2015)

This Antitrust Law Daily feature presents a chart highlighting the decisions, arguments, briefs, and petitions on antitrust and trade regulation issues before the 2014 Term of the U.S. Supreme Court.

Currently, there are 8 antitrust and trade regulation cases that are awaiting Supreme Court Review. Since the opening of the 2014 term, the Court has issued an opinion in two antitrust cases; granted certiorari in one additional antitrust case; and denied certiorari in 14 other cases involving acquisitions and mergers, advertising, antitrust, consumer protection, and the Racketeer Influenced and Corrupt Organizations Act.

The Supreme Court issued a decision in North Carolina State Board of Dental Examiners v. FTC, finding that the North Carolina State Board of Dental Examiners was not immune under the state action doctrine for excluding non-dentist providers from the market for teeth whitening services in violation of Section 5 of the FTC Act because the Board’s conduct was not actively supervised by the state. This decision will have significant implications for state licensing and professional boards, as states will now need to evaluate board membership to determine whether “a controlling number of decisionmakers are active market participants in the occupation the board regulates.” If so, states will need to either reconsider the board’s composition or undertake efforts to “actively supervise” the board in order to ensure that state action immunity is available.

Petitioners in Carpenter, Co. v. Ace Foam, Inc. were denied certiorari in a “gargantuan” class action against manufacturers of flexible polyurethane foam for conspiring to fix prices. The petitioners asked: (1) whether the standing requirements under Article III apply to all members of a class certified under Rule 23; and (2) whether certifying a class under Rule 23(b)(3) is proper where individualized damages issues predominate, and where plaintiffs rely exclusively on aggregate damages models that calculate damages purportedly incurred by the class as a whole, rather than by individual class members.

Review also was denied in In re Managed Care Litigation, in which a number of health care providers were seeking review of a decision by the U.S. Court of Appeals in Atlanta, finding that releases in nearly decade-old class action settlement agreements precluded the providers from asserting federal antitrust claims based on conduct occurring years after the settlement agreement. The providers’ petition asked: (1) whether a settlement agreement in a class action may waive all class members’ rights to pursue statutory remedies for the defendant’s future violations of federal antitrust laws, or is such a waiver void because it violates the antitrust laws or public policy; and (2) whether a federal antitrust cause of action can be asserted before the occurrence of the acts and injuries from which the cause of action arises, or does the cause of action accrue when the plaintiff is injured.

For details about these and other petitions and cases pending before the Supreme Court, please consult the chart of antitrust and trade regulation cases awaiting decision in the 2014 term. Issued opinions, granted petitions, pending petitions, and denied petitions are listed separately, along with a summary of the questions presented and the current status of each case.

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