Antitrust and Unfair Competition Law Section
News from the Section
Webinar: Practical Strategies for Working Efficiently and Effectively with Economic Experts
Thursday, July 30, 2015, 12 noon - 1 p.m.
This program offers 1 hour participatory MCLE credit. You must register in advance in order to participate.
Join us for a practically oriented discussion of how to find the right economic expert, work efficiently with your economic expert's team at various stages of litigation, and communicate effectively while still preserving privilege. We will discuss general strategic considerations, applicable legal standards, and tips for challenges that often arise when working with economic experts in federal civil litigation. Topics to be covered include finding and retaining an economic expert, what communications with experts are privileged, the discoverability of various materials associated with preparing expert reports, protective order and joint defense group considerations, preparing for expert depositions, and the role of economic experts in the very early stages of litigation.
- Andrew Abere, The Brattle Group
- Rachel Brass
- Brendan Glackin, Lieff Cabraser Heimann & Bernstein
Moderator: Anna Fabish, O'Melveny & Myers LLP
2015 Golden State Institute
SAVE THE DATE: The Golden State Antitrust Institute, the West Coast’s premier antitrust and unfair competition gathering is set for October 29, 2015 at the Julia Morgan Ballroom in downtown San Francisco.
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.
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.
- 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.
For more information, see Golden State Institute.
Third Circuit: Class Certification Expert Testimony Must Survive Daubert Challenge
On April 8, 2015 the U.S. Court of Appeals for the Third Circuit issued an opinion vacating an order granting class certification, holding that when a plaintiff relies on expert testimony to satisfy the requirements of Rule 23, that testimony is subject to scrutiny under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals. In re Blood Reagents Antitrust Litig., 783 F.3d 183 (3d Cir. 2015).
This multi-district litigation was filed in 2009 by direct purchasers of blood reagents, products used to test blood compatibility between donors and recipients. Plaintiffs allege that defendant Immucor, Inc., which settled with the plaintiffs prior to class certification, and defendant-appellant Ortho-Clinical Diagnostics, Inc. ("Ortho") engaged in an unlawful conspiracy to fix blood reagent prices.
In 2012, after preliminary approval of plaintiffs' settlement with Immucor, the District Court for the Eastern District of Pennsylvania heard argument on plaintiffs' motion for class certification. In support of their motion, plaintiffs relied upon expert testimony about impact and damages. Ortho opposed class certification, arguing that plaintiffs had failed to establish predominance under Rule 23(b). Ortho argued, among other things, that plaintiffs' expert was not capable of producing "just and reasonable damage estimates at trial" and that the expert, by failing to distinguish lawful from unlawful price increases, had failed to show necessary class-wide antitrust impact. The District Court rejected these challenges, and certified a direct purchaser class. Applying then-controlling Third Circuit authority, Behrend v. Comcast Corp., the District Court held it was premature to consider objections on the merits to the reliability of the expert's damages model, as the model could "evolve" over time to become admissible evidence. See In re Blood Reagents Antitrust Litig., 283 F.R.D. 222, 240-244 (E.D.Pa. 2012).
The Third Circuit vacated the order granting class certification. The Court held that under the Supreme Court's decision in Comcast v. Behrend, the "could evolve" formulation of the Rule 23 standard was no longer good law. 783 F.3d at 186. Relying in part on Comcast, the Court then held that, in order to rely on expert testimony for class certification purposes, a plaintiff must "demonstrate, and the trial court find, that the expert testimony satisfies the standard set out in Daubert." Id. at 187. The Court held that a Daubert analysis is necessary, reasoning that a party seeking class certification must "prove" that the relevant requirements of Rule 23 are met. "Expert testimony that is insufficiently reliable to satisfy the Daubert standard cannot 'prove' that the Rule 23(a) prerequisites have been met 'in fact,'" the Court found, "nor can it establish 'through evidentiary proof' that Rule 23(b) has been satisfied." Id. The Third Circuit then remanded to the district court to determine which of Ortho's objections "challenge those aspects of plaintiffs' expert testimony offered to satisfy Rule 23" and to conduct a Daubert analysis if necessary for those aspects. Id. at 188.
The decision in In Re Blood Reagents brings the Third Circuit in line with district courts in the Seventh, Eighth and Ninth Circuits in holding that expert evidence at the class certification stage must satisfy Daubert.
Elizabeth C. Pritzker
Pritzker Levine LLP
Most Claims Upheld in Capacitors Cartel Case
In re Capacitors Antitrust Litigation, File No. 14-cv-03264-JD (N.D. Cal. May 26, 2015).
The Hon. James Donato issued an order denying defendants' motions to dismiss for the most part in a consolidated antitrust action alleging price fixing conspiracies in the capacitor market. Judge Donato found that the direct purchaser plaintiffs (DPPs) and indirect purchaser plaintiffs (IPPs) made enough factual allegations in their complaints to support a price-fixing claim for many of the defendants. Judge Donato granted motions to dismiss as to certain defendants who belonged to a family of alleged conspirators because the complaint did not specifically allege these defendants' activity in the alleged conspiracy.
First, Judge Donato assessed the validity of defendants' claims against the DPP complaint alleging defendant manufacturers in Japan, Taiwan, Germany, and the U.S. participated in a single overarching conspiracy to raise prices and prevent competition for certain capacitors. Judge Donato held that the DPP complaint as a whole had enough grounding in fact to pass the Twombly plausibility standard, as the complaint made sufficient factual allegations suggesting that an agreement to fix prices could have been made. Further, Judge Donato found that DPP's complaint need not allege the same conspiracy as the IPP complaint to be plausible. Judge Donato further ruled that government investigations alleged in plaintiffs' complaint carried no weight in determining plausibility as government processes like ACPERA are not transparent. Denying defendant's request to dismiss DPP's claim to the extent that it accrued before the Clayton Act's four-year statute of limitations, Judge Donato found that the DPPs made sufficiently specific allegations to satisfy the pleading standards for fraudulent concealment.
Denying defendants' joint motion to dismiss the "majority" of U.S. subsidiaries, Judge Donato granted fifteen defendants' motions to dismiss with leave to amend to allege more specific facts showing that the U.S. subsidiaries participated in or were responsible for the cartel.
Second, Judge Donato assessed defendants' motion to dismiss the IPP complaint alleging two conspiracies over two different time periods for the same capacitors as the DPP complaint. Rejecting defendants' argument that IPPs lacked Article III standing for failure to allege injury in fact, Judge Donato found IPPs' allegation that capacitors are identifiable components that pass through the chain of distribution in the same form sufficient for standing. Judge Donato likewise found defendant's argument under Associated General Contractors of California v. California State Council of Carpenters, 459 U.S. 519 (1983) ("AGC") unpersuasive, holding that no definitive decisions hold that AGC applies to California antitrust claims.
Judge Donato granted defendant's motion to strike claims under California's Cartwright Act and Unfair Competition Law. Both sides agreed that unjust enrichment is not a claim and Judge Donato dismissed the stand-alone unjust enrichment claim with prejudice. As with defendants' challenge to the DPP's claims, Judge Donato denied defendants' motion to dismiss based on the statute of limitations. Judge Donato granted six defendants' motion to dismiss with leave to amend, finding the complaint failed to adequately allege that the particular defendants took part in the alleged conspiracy.
Hilary A. Hess
Ms. Hess is a Summer Associate at Cotchett, Pitre & McCarthy LLP
California Antitrust and Unfair Competition Law, Revised Edition
Cheryl 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 and Unfair Competition Law 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.
Antitrust & Unfair Competition Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639