Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Jun 15, 2016)

By Greg Hammond, J.D.

This Antitrust Law Daily feature presents a chart highlighting the decisions, arguments, briefs, and petitions on antitrust and trade regulation issues before the 2015 Term of the U.S. Supreme Court.

Since the opening of its 2015 Term, the Supreme Court has issued two opinions concerning advertising and privacy cases, granted summary disposition in another case, and heard oral arguments in a RICO case. In addition, the Court has denied 38 petitions in antitrust and trade regulation cases, while 14 other petitions are awaiting review.

Antitrust, boycott. JSW Steel (USA), Inc. has asked the U.S. Supreme Court to consider whether the steel maker’s decision to no longer deal with a newly-formed distributor (MM Steel, L.P.), following threats from established distributors, should be condemned as per se unlawful. In a petition for certiorari, filed with the Supreme Court on June 9, JSW is questioning a decision of the U.S. Court of Appeals in New Orleans, upholding a $150 million judgment against the manufacturer. The questions presented are: (1) whether, under the Sherman Act, a vertical restraint that would otherwise be subject to the rule of reason can be condemned as per se unlawful just because it was entered upon to facilitate a horizontal conspiracy; and (2) whether it is permissible to infer that a manufacturer knowingly joined an antitrust conspiracy based solely on evidence that the manufacturer terminated a distributor in response to or following complaints and threats by other distributors (JSW Steel (USA), Inc. v. MM Steel, L.P., Dkt. 15-1492).

Antitrust, monopolization. Prime Healthcare Services, Inc. has also requested the Supreme Court to review a decision by the U.S. Court of Appeals in San Francisco, which affirmed that Prime failed to sufficiently allege harm to competition or monopoly power in favor of conspiracy and monopolization claims against a competitor and two unions. The petition asks: (1) whether the Ninth Circuit failed to follow this Court’s precedent by not applying the per se standard to a horizontal conspiracy in violation of the Sherman Act between two labor unions, their leadership, and their members, where the unions forfeited their limited antitrust immunity by colluding with a nonlabor entity; and (2) whether the Ninth Circuit erred by not applying the per se standard to the conduct of a hospital that participated in and facilitated the horizontal nonexempt collusion of two labor unions, their leadership, and their members in violation of the Sherman Act (Prime Healthcare Services, Inc. v. Service Employees International Union, Dkt. 15-1448).

RICO, injury. The Supreme Court on June 6 denied GlaxoSmithKline LLC’s petition for review in an action in which the U.S. Court of Appeals in Philadelphia purportedly approved a theory of RICO injury based on allegations by third-party payors that they paid too much for diabetes drug Avandia—even though they did not allege that the drug was ineffective or injured any of their beneficiaries. The appellate court affirmed that the third-party payors alleged a tangible economic harm under RICO, based on the inflationary effect that GSK’s purportedly fraudulent behavior had on the price of Avandia—an injury that did not depend on the effectiveness of Avandia (GlaxoSmithKline LLC v. Allied Services Division Welfare Fund, Dkt. 15-1078).

Advertising, class certification. The High Court on June 6 also denied Google Inc.’s request to review a decision by the U.S. Court of Appeals in San Francisco, ruling that the district court erred in finding that a putative class did not meet the predominance requirement of the Federal Rule of Civil Procedure 23(b). Advertisers claimed that Google violated the California Unfair Competition Law (UCL) and False Advertising Law (FAL) by failing to disclose that certain ads paid for by the advertisers had been placed on websites that were dormant or otherwise unlikely to be seen. Google had argued that the appellate court’s decision—which held that the district court erred by conflating the restitution calculation with the liability inquiry for UCL and FAL claims and by failing to follow the rule that damages calculations alone cannot defeat class certification—departs from the fundamental principles of class certification that the Supreme Court laid down in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (Google Inc. v. Pulaski & Middleman, LLC, Dkt. 15-1101).

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 2015 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.

News: Advertising Antitrust RICO