Antitrust, UCL and Privacy Section

News from the Section

Registration Is Open for the 2015 Golden State Institute

October 29, 2015
The Julia Morgan Ballroom
Merchant Exchange Bldg., 15th Floor
465 California Street
San Francisco, CA

Earn 7 Hours MCLE Credit

You can now REGISTER ONLINE for the program. Online registration will close when the pre-registration deadline has passed.

At the luncheon there will be a Q&A with California Supreme Court Chief Justice Tani Cantil-Sakauye.

The Honorable Susan Illston is confirmed to moderate the panel GSI 25th Anniversary Retrospective and Prospective Views on CA Antitrust and Unfair Competition Law. A panel of preeminent plaintiffs' lawyers and defense counsel will discuss the major changes in California antitrust law and the UCL over the last 25 years and what the panelists prognosticate for the future.

Golden State Institute
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Chief Justice Tani Cantil-Sakauye

A distinguished group of federal judges will also discuss trial proceedings in antitrust and complex commercial litigation.  The focus will be their “real world” experiences and practice pointers. 

Confirmed Panelists:

  • Hon. William Orrick III
    United States District Court Judge for the Northern District of California -- San Francisco, CA
  • Hon. Christina Snyder
    United States District Judge for the Central District of California -- Los Angeles, CA
  • Hon. Jon S. Tigar
    United States District Judge for the Northern District of California -- San Francisco, CA

At the awards dinner, we will honor as our Antitrust Lawyer of the Year Craig C. Corbitt, who has been centrally involved in dozens of the most significant civil antitrust cases in the United States during his 35 year career.

State Bar of California Annual Meeting

My Annual MeetingThe State Bar of California 88th Annual Meeting
October 8-11, 2015
Anaheim, California

The State Bar of California returns to sunny Anaheim for the 2015 Annual Meeting. The Annual Meeting is a multiday showcase of continuing legal education courses, celebrity speakers, and noted legal scholars. Each day gives you several choices of courses and special events.

The Annual Meeting registration fee is structured to make it more affordable to attend. You can select either a Full Meeting Pass or a 2-Day Pass. Special fees are available for Young Lawyers and New Admittees. September 14 is the deadline for the lowest fee.

More than 100 programs are planned for the Annual Meeting, including these from the Antitrust, UCL and Privacy Section:

Program 58

Antitrust, Privacy and Unfair Competition Law 101

Program 69

Risky Business: Privacy Law in the Digital Age

Program 80

Insights from the Battlefield: Advanced Trial and Class Action Practice

For more information, see The State Bar of California Annual Meeting.

Neiman-Marcus Data Breach Class Action Meets Standing Requirement, Seventh Circuit Rules

by Thomas N. Dahdouh
Regional Director, Western Region, FTC

The Seventh Circuit recently overturned a district court's dismissal of a class action brought against Neiman Marcus, the high-end retailer. Remijas v. Neiman Marcus Group, LLC, No. 14-3122, 2015 U.S. App. LEXIS 12487 (7th Cir. July 20, 2015). While the decision appears to breathe renewed vigor into data breach class actions, it does have some dicta that may prove troublesome to some privacy plaintiffs with respect to the "injury-in-fact" requirement.

In the decision, the court found that a class of consumers whose financial information was compromised in a 2013 hack of the store's data systems showed "injury-in-fact" and thus had standing to sue. In doing so, the Court specifically rejected the defendant's argument that the class' injuries were too speculative because the hackers had yet to use the personal information for fraudulent charges and to assume consumers' identity. Adopting a Northern District of California judge's reasoning in In re Adobe Sys., Inc. Privacy Litig., 2014 WL 4379916 (N.D. Cal. Sept. 4, 2014), the court found that "Neiman Marcus customers should not have to wait until hackers commit identity theft or credit-card fraud in order to give the class standing, because there is an 'objectively reasonable likelihood' that such an injury will occur." 2015 U.S. Lexis 12487, * 12 (quoting Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013)). The court went on to note that the purpose of a hacker breaching a store's database and stealing consumers' private information was to make fraudulent charges or assume those consumers' identities. It noted that studies show that hackers will sometimes wait up until a year before utilizing the stolen data. The court also accepted as a concrete injury the fact that consumers notified of the breach "lost time and money protecting themselves against future identity theft and fraudulent charges" by signing up for credit-monitoring services. Slip op. at 11. Consequently, the court found that the class had standing to survive a Rule 12(b)(1) motion. READ MORE

Second Circuit Upholds Trial Verdict Against Apple in E-Books Case

by David V. Sack, TKLG LLP

In United States v. Apple, Inc., No. 13-3741, 2015 WL 3953243 (2d Cir. June 30, 2015), the Second Circuit issued a 2-1 decision affirming the Southern District of New York's judgment that Apple had organized a conspiracy among book publishers in 2009 to raise prices across the ebook market. In her majority opinion, Second Circuit Judge Livingston clarified that a vertical organizer of horizontal price-fixing conspiracy may not escape per se Sherman Act liability merely because the organizer operates on a different market-structure level from that of the other conspiracy participants.

In 2009, when Apple first planned to enter the ebook market with an iBookstore iPad application, Amazon dominated the market with its Kindle ereader, capturing 90% of all ebook sales. Amazon used a modified version of the book publishers' traditional wholesale business model, buying ebooks from publishers at a wholesale price and reselling at uniform $9.99, without exception for new releases or bestsellers. The publishers, who frequently met and discussed joint strategies to raise prices, saw Amazon's $9.99 ebook price point as a threat to their business.

Armed with knowledge that the publishers were willing to coordinate in pressuring Amazon to raise its ebooks price point, Apple approached the publishers with a plan to allow Apple to sell ebooks at higher price points, and to eliminate price competition at the retail level. Specifically, Apple negotiated with each publisher a contract that replaced the wholesale model with an agency model, in which the publisher rather than the retailer set ebook retail prices, on the conditions that the publishers (1) agree to certain price caps above $9.99, and (2) switch all their other ebook retailers—including Amazon—to the agency model. Apple assured each publisher that each was receiving the same deal. The publishers conferred amongst themselves, agreed to Apple's deal, and by March 2010, forced Amazon to switch from the wholesale model to the agency model. As Apple and the publishers expected, the ebook prices increased. READ MORE

Second Circuit Rules "Product Hopping" Anticompetitive Under Section 2 of Sherman Act

By Abiel Garcia
Deputy Attorney General, Antitrust Section, Attorney General of California

On May 22, 2015, the Second Circuit for the United States Court of Appeals ruled in State of New York v. Actavis, 787 F.3d 638 (2d. Cir. 2015) ("Namenda") that product hopping can be anticompetitive under section 2 of the Sherman Act. This was the first case before the federal circuit courts as to when a branded drug company's perpetuation of market position through introduction of successive re-designed products, known as product hopping, violates the Sherman Act. Namenda at 643.

The defendant, Actavis, marketed a branded drug Namenda IR, a twice-daily drug for the treatment of Alzheimer's disease. As Namenda IR neared the end of its patent exclusivity period, Actavis threatened to pull it from the market, and to simultaneously introduce a new once-daily version called Namenda XR, a version claiming patent protection through 2029. Actavis claimed that the newer version was an improvement from the original in that only a single dose was needed. The State of New York alleged that Actavis' decision to withdraw virtually all Namenda IR from the market forced the Alzheimer's patients depending on Namenda IR to switch to Namenda XR before generic Namenda IR became available. The trial court found that Actavis' effective removal of Namenda IR from the market before generic entry, coupled with the launch of Namenda XR would likely impede generic competition for Namenda IR, and issued an injunction blocking Actavis from withdrawing Namenda IR from the market. READ MORE

California Antitrust and Unfair Competition Law, Revised Edition

California Antitrust and Unfair Competition Law, Revised EditionCheryl Lee Johnson, Editor-in-Chief

Gain authoritative understanding of California antitrust and unfair competition statutes, policies and issues with one-volume convenience. This treatise brings you up to speed on everything from horizontal combinations and vertical restraints to public enforcement of California antitrust laws and trial considerations.

You get full coverage of The Cartwright Act along with related California consumer and unfair competition laws, and how they apply to the health industry, regulated industries, the labor market, electronic media, the internet and other fields. Additionally, there are chapters covering damages, defenses to liability including exemptions and immunities, injunctive relief, class actions, attorney’s fees and costs, insurance issues, and much more. This publication includes contributions from over 120 highly experienced antitrust practitioners in both the private and government sectors, as well as the executive members of the Antitrust, UCL and Privacy Section of the California State Bar.

$260, 1 volume, loose-leaf, updated annually, Pub. #01577, ISBN 9780769856896

To order, call 800-223-1940 or visit the LexisNexis Store.

Contact Us

Antitrust & Unfair Competition Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
415-538-2368 fax