Applied Antitrust: Case Development and Litigation Strategy
Dale Collins
NYU School of Law
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5. Proving Conspiracy
Plurality: American Needle Inc. v. National Football League
Motions to dismiss and the Twombly standard: The Digital Music antitrust litigation
Proof of conspiracy through circumstantial evidence and summary judgment: The Linerboard antitrust litigation
Proof of conspiracy through circumstantial evidence at trial: The Mack Trucks litigation
Reference materials
Case studies
Required Reading
Supplemental Reading
Class notes and materials
Unit 5 notes (full slides)
Unit 5 notes (in half-page notes format)
Unit 5 required reading (complete set)
Appeals
± 28 U.S.C. § 1291 (appeals from final decisions of district courts)
± 28 U.S.C. § 1292 (interlocutory appeals)
± 28 U.S.C. § 1294 (circuits in which decisions reviewable)
± Fed. R. App. P. 1 (scope of rules)
± Fed. R. App. P. 3 (appeal as of right-how taken)
± Fed. R. App. P. 4 (appeal as of right-when taken)
± Fed. R. App. P. 5 (appeal by permission)
± Federal court locator (map)
Writ of Certiorari
± 28 U.S.C. § 1254 (certiorari)
± 28 U.S.C. § 2101 (time for appeal or certiorari)
± Sup. Ct. R. 10 (Considerations Governing Review on Writ of Certiorari)
± Sup. Ct. R. 11 (Certiorari to a United States Court of Appeals before Judgment)
± Sup. Ct. R. 13 (Review on Certiorari: Time for Petitioning)
± Sup. Ct. R. 14 (Content of a Petition for a Writ of Certiorari)
± Sup. Ct. R. 15 (Briefs in Opposition; Reply Briefs; Supplemental Briefs)
± Sup. Ct. R. 16 (Disposition of a Petition for a Writ of Certiorari)
± Rules of the Supreme Court of the United States (eff. Feb. 16, 2010)
± The Oyez Project (a multimedia archive of the Supreme Court–including oral arguments–maintained by the Chicago-Kent College of Law–highly recommended)
Plurality:
American Needle Inc. v. National Football League
Background
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) (excerpt)
± Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) (full text) (± Oyez)
± United States v. Colgate & Co., 250 U.S. 300 (1919)
± Gregory v. Fort Bridger Rendezvous Ass'n, No. 04-8100 (10th Cir. May 23, 2006) (reported at 448 F.3d 1195)
Expansive early cases:
United States v. Yellow Cab Co., 332 U.S. 218 (1947).
Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211 (1951).
American Needle
American Needle Inc. v. National Football League, No. 07-4006 (7th Cir. Aug. 18, 2008) (reported as 538 F.3d 736)
Oral argument before the Seventh Circuit (June 2, 2008)
Supreme Court: Certiorari
± Petition for a Writ of Certiorari (November 17, 2008)
± Docket sheet (Docket No. 08-661)
± Brief for the NFL Respondents (Jan. 21, 2008)
Respondent Reebok International, Ltd. waived its right to file a response
Supreme Court invites the Acting Solicitor General to file a brief expressing the views of the United States (Feb. 23, 2009)
± Brief for the United States as Amicus Curiae (May 28, 2009) (recommending that certiorari be denied)
± Supplemental Brief of Petitioner (June 8, 2009)
Certiorari granted (June 29, 2009)
Supreme Court: Merits
Selected briefs:
± Brief for Petitioner American Needle, Inc. (Sept. 18, 2009)
± Amicus Curiae Brief of Economists in Support of Petitioner (Sept. 24, 2009)
± Brief for the United States as Amicus Curiae Supporting Petitioner (Sept. 25, 2009)
± Brief for the American Antitrust Institute and the Consumer Federation of America in Support of Petitioner (Sept. 25, 2009)
± Brief for the NFL Respondents (Nov. 17, 2009)
± Brief of Respondent Reebok International LTD(Nov. 17, 2009)
± Brief of Mastercard Worldwide and Visa Inc. as Amici Curiae in Support of Respondents (Nov. 24, 2009)
± Brief for Electronic Arts Inc. as Amicus Curiae Supporting the NFL Respondents (Nov. 24, 2009)
± Brief of Economists as Amici Curiae in Support of Respondents (Nov. 24, 2009)
± Reply Brief for Petitioner American Needle, Inc. (Dec. 17, 2009)
Oral argument
± Transcript (Jan. 13, 2010)
Supreme Court Opinion
American Needle, Inc. v. National Football League, No. 08-661 (May 24, 2010) (reported as 130 S. Ct. 2201) (± Oyez)
± Herbert J. Hovenkamp, American Needle and the Boundaries of the Firm in Antitrust Law (June 1, 2010)
On remand to the Fifth Circuit
Order, American Needle, Inc. v. National Football League, 07-4006 (7th Cir. Aug. 24, 2010) (remanding to the district court)
On remand to the Northern District of Illinois
Docket Sheet, American Needle, Inc. v. New Orleans Louisiana Saints, No. 04-c-7806 (N.D. Ill.) (downloaded August 7, 2012)
Joint Status Report (May 19, 2011)
As of august 7, 2012, the case remains in pretrial discovery.
Significant post-American Needle precedents
Robertson v. Sea Pines Real Estate Cos., Nos. 11-1538, 11-1539, 11-1540, 11-1541 (4th Cir. May 14, 2012) (reported as 679 F.3d 278)
Brief for the United States as Amicus Curiae in Support of Plaintiffs-Appellees (Aug. 29, 2011)
Motions to dismiss and the Twombly standard:
The Digital Music Antitrust Litigation
Judicial Panel on
Multidistrict Litigation
Conditional Transfer Order, In re Digital Music Antitrust Litig., MD-1780 (J.P.M.L. filed Aug. 18, 2006) (reported at 444 F. Supp. 2d 1351)
28 U.S.C. § 1407
(multidistrict litigation)
JPML docket sheet (downloaded March 5, 2010)
Motion for Transfer and Coordination or Consolidation Pursuant to 28 U.S.C. § 1407 (April 5, 2006)
Consent of Transferee Court (August 16, 2006)
District court: Complaint
Second Consolidated Amended Complaint, In re Digital Music Antitrust Litig., 06 MDL No. 1780 (S.D.N.Y. filed June 13, 2007) ("SCAC")
± Fed. R. Civ. P. 8
(general rules of pleading)
± Fed. R. Civ. P. 11
(signing pleadings, motions, and other papers; representations to the court; sanctions)
± Fed. R. Civ. P. 12(b)(6)
(motion to dismiss for failure to state a claim for which relief may be granted)
± Fed. R. Civ. P. 12(f)
(provides to striking portions of a complaint)
Docket sheet (downloaded April 4, 2013)
District court: Motion to dismiss
Opinion, In re Digital Music Antitrust Litig., 06 MDL No. 1780 (S.D.N.Y. October 9, 2008) (dismissing complaint) (reported as 592 F. Supp. 2d 435)
Judgment, In re Digital Music Antitrust Litig., 06 MDL No. 1780 (S.D.N.Y. October 21, 2008)
± Fed. R. Civ. P. 54
(judgment)
± Fed. R. Civ. P. 58
(entering judgment)
SDNY Notice of Right to Appeal (October 21, 2008)
Notice of Appeal (Nov. 19, 2008)
Defendants’ Joint Memorandum of Law in Support of Motion to Dismiss and to Strike Portions of Plaintiffs’ Second Consolidated Amended Complaint (July 30, 2007)
Bertelsmann, Inc.'s Supplemental Memorandum in Support of Defendants' Motion to Dismiss (July 30, 2007)
Defendant Time Warner's Supplemental Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiffs' Second Consolidated Amended Complaint (July 30, 2007) (Exhibits)
Sony Corporation of America's Supplemental Memorandum in Support of Defendants' Motion to Dismiss (July 30, 2007)
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss and to Strike Portions of Plaintiffs’ Second Consolidated Amended Complaint (September 13, 2007)
Plaintiffs’ Consolidated Memorandum of Law in Opposition to Defendants Bertelsmann, Inc.’s, Sony Corporation of America’s and Time Warner, Inc.’s Supplemental Memoranda of Law (September 13, 2007)
Defendants’ Reply Memorandum of Law in Further Support of Motion to Dismiss and to Strike Portions of Plaintiffs’ Second Consolidated Amended Complaint (October 15, 2007)
Bertelsmann, Inc.'s Supplemental Reply Memorandum in Support of Defendants' Motion to Dismiss (October 15, 2007)
Defendant Time Warner’s Supplemental Reply Memorandum of Law in Further Support of Defendants’ Motion to Dismiss Plaintiffs’ Second Consolidated Amended Complaint (October 15, 2007)
Sony Corporation of America's Supplemental Reply Memorandum in Further Support of Defendants' Motion to Dismiss (October 15, 2007)
Second Circuit
Starr v. Sony BMG Music Entm't, No. 08-5637-cv (2d Cir. Jan. 13, 2010) (reversing dismissal and reinstating complaint) (reported at 592 F.3d 314)
± 28 U.S.C. § 1291
(final decisions of district courts)
± 28 U.S.C. § 1292
(Interlocutory decisions)
± 28 U.S.C. § 2107
(time for appeal to court of appeals)
± Fed. R. App. P. 3
(appeal as of right—when taken)
± Fed. R. App. P. 4(a)
(appeal as of right—when taken)
Mandate (January 13, 2009) (remanding case to the district court)
Docket sheet (downloaded March 7, 2010)
District court on remand
Third Consolidated Amended Complaint (June 2, 2010)
Notice of Motion to Dismiss and to Strike Portions of Plaintiffs’ Third Consolidated Amended Complaint (June 23, 2010)
Defendants’ Joint Memorandum of Law in Support of Motion to Dismiss and to Strike Portions of Plaintiffs’ Third Consolidated Amended Complaint (June 23, 2010)
Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Dismiss and Strike Portions of Plaintiffs’ Third Consolidated Amended Complaint (July 23, 2010)
Defendants’ Reply Memorandum of Law In Further Support of Motion to Dismiss and to Strike Portions of Plaintiffs’ Third Consolidated Amended Complaint (August 6, 2010)
Opinion & Order (July 18, 2011)
Conformed Third Consolidated Amended Complaint (Aug. 31, 2011) (confroming complaint to July 18 order)
Significant precedents
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (± Oyez)
Consolidated Amended Class Action Complaint (exhibits)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (± Oyez)
See ± Joe S. Cecil, George W. Cort, Margaret S. Williams & Jared J. Bataillon, Motions to Dismiss for Failure to State a Claim After Iqbal, Report to the Judicial Conference Advisory Committee on Civil Rules (Fed. Jud. Ctr. March 2011)
Andrea Kuperman, Review of Case Law Applying Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, Memorandum to the Civil Rules Committee and the Standing Rules Committee (November 23, 2011).
Recent cases—Allegations sufficient
Opinion and Order Denying Defendants’ Motions To Dismiss (Dkt. Nos. 202, 203), In re Packaged Ice Antitrust Litig., Case No. 08-MD-0195 (E.D. Mich. July 1, 2010)
Docket sheet (downloaded Mar. 3, 2012)
Amended Class Action Complaint (Sept. 15, 2009)
Memorandum Opinion and Order, In re Potash Antitrust Litig., MDL No. 1996 (N.D. Ill. Nov. 11, 2009) (reported as 667 F. Supp. 2d 907)
Docket sheet (downloaded March 4, 2012)
Direct Purchaser Amended Consolidated Class Action Complaint (Apr. 3, 2009)
Indirect Purchasers' Amended Consolidated Class Action Complaint (Apr. 3, 2009)
Standard Iron Works v. ArcelorMittal, No. 08 C 5214 (N.D. Ill. June 12, 2009) (reported as 639 F. Supp. 2d 877)
Docket sheet (downloaded March 4, 2012)
Complaint (Sept. 12, 2008)
In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI (N.D. Cal. Mar. 3, 2009) (reported as 599 F. Supp. 2d 1179)
Docket sheet (downloaded March 4, 2012)
First Amended Direct Purchaser Plaintiffs’ Consolidated Complaint (Dec. 5, 2008)
Indirect-Purchaser Plaintiffs’ Second Consolidated Amended Complaint (Dec. 5, 2008)
Memorandum and Order, Dahl v. Bain Capital Partners, LLC, Civ. A. No. 07-12388-EFH (D. Mass. Dec. 15, 2009) (reported as 655 F. Supp. 2d 146)
Docket sheet (downloaded March 4, 2012)
Third Amended Class Action Complaint (Aug. 26, 2008)
Transcript of motion hearing (Nov. 13, 2008)
In re Static Random Access Memory (SRAM) Antitrust Litig., No. M:07-cv-01819-CW (N.D. Cal. 2008) (reported at 580 F. Supp. 2d 896)
Docket sheet (downloaded March 4, 2012)
Consolidated Class Action Complaint: Direct Purchaser Class (Sept. 14, 2007)
In re Rail Freight Fuel Surcharge Antitrust Litig., MDL Dkt. No. 1869 (D.D.C. Nov. 7, 2008) (sustaining pleading of direct purchaser claims) (reported as 587 F. Supp. 2d 27)
In re Rail Freight Fuel Surcharge Antitrust Litig., MDL Dkt. No. 1869 (D.D.C. Dec. 31, 2008) (sustaining pleading of indirect purchaser claims) (reported as 593 F.Supp.2d 29)
In re OSB Antitrust Litig., Master File No. 06-826 (E.D. Pa. Aug. 3, 2007) (reported at 2007 WL 2253419)
In re Rubber Chems. Antitrust Litig., 504 F. Supp. 2d 777 (N.D. Cal. 2007)
Recent cases—Allegations insufficient
In re Travel Agent Comm'n Antitrust Litig., No. 07-4464 (6th Cir. Oct. 2, 2009) (reported at 583 F.3d 896), aff'g MDL Docket No. 1561, 2007 WL 3171675 (N.D. Ohio Oct. 29, 2007)
Docket sheet (N.D. Ohio) (downloaded March 4, 2012)
First Amended Complaint (Sept. 14, 2007)
Case terminated Dec. 13, 2010 (upon receiving mandate from Sixth Circuit)
In re Elevator Antitrust Litig., 502 F.3d 47 (2d Cir. 2007)
In re Text Messaging Antitrust Litig., No. 08 C 7082, 2009 WL 5066652 (N.D .Ill. Dec. 10, 2009), later opinion, MDL No. 1997, 2010 WL 1782006 (N.D. Ill. Apr. 30, 2010) (granting leave to amend and finding amended complaint sufficient), aff'd, 630 F.3d 622 (7th Cir. 2010) (granting interlocutory appeal and affirming finding of complaint sufficiency)
N.D. Ill. docket sheet (downloaded March 4, 2012)
Consolidated Class Action Complaint and Jury Demand (Apr. 29, 2009) (found legally insufficient in Dec. 10 opinion)
Second Amended Consolidated Class Action Complaint (May 4, 2010)
Bailey Lumber & Supply Co. v. Georgia-Pacific Corp., Civ. A. No. 1:08CV1394 (S.D. Miss Feb. 25, 2010) (granting without prejudice BlueLinx's motion to dismiss)
Second Amended Complaint (Sept. 16, 2009)
In re California Title Ins. Antitrust Litig., 2009 WL 3756686 (N.D. Cal. Nov. 6, 2009)
Burtch v. Milberg Factors, Inc., Civ. No. 07-556-JJF-LPS, 2009 WL 840589 (D. Del. March 30, 2009)
In re LTL Shipping Services Antitrust Litig., No. 1:08-MD-01895-WSD, 2009 WL 323219 (N.D. Ga. Jan. 28, 2009)
Twombly commentary
± Edward Brunet, The Substantive Origins of "Plausible Pleadings"— An Introduction to the Symposium on Ashcroft v. Iqbal (Lewis & Clark Law School Legal Research Paper Series No. 2010-5, 2010)
± Herbert J. Hovenkamp, The Pleading Problem in Antitrust Cases and Beyond (November 18, 2009)
± Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473 (2009)
± Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 Iowa L. Rev. 873 (2009)
± Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments (April 2008)
± Shearman & Sterling LLP, Antitrust Digest: Emerging Trends and Patterns in Federal Antitrust Cases After Bell Atlantic Corp. v. Twombly (March 2009)
Twombly repealer
± Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. § 2 (2009) ("Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).") (last action: referred to the Senate Committee on the Judiciary on July 22, 2009)
Proof of conspiracy through circumstantial evidence and summary judgment:
The Linerboard Antitrust Litigation
District court
In re Linerboard Antitrust Litig., MDL No. 1261 (E.D. Pa. Aug. 30, 2007) (reported at 504 F. Supp. 38)
± Fed. R. Civ. P. 56
(summary judgment)
± Fed. R. Civ. P. 54
(judgment; costs)
± Fed. R. Civ. P. 58
(entering judgment)
Docket sheet (downloaded March 19, 2011) (case terminated November 3, 2008)
Summary judgment briefs were filed under seal
Significant summary judgment precedents
± Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464 (1962)
± Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
Significant conspiracy applications
± United States v. Colgate & Co., 250 U.S. 300 (1919)
± Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984) (± Oyez)
± Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (± Oyez)
± Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717 (1988) (± Oyez)
Recent cases—Genuine issue on conspiracy
In re Publication Paper Antitrust Litig., No. 11-101-cv (2d Cir. 2012) (reported at 690 F.3d 51)
Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073 (10th Cir. 2006), on remand, Champagne Metals v. Ken-Mac Metals, Inc., No. CIV-02-0528-HE, 2008 WL 5205204 (W.D. Okla. Dec. 11, 2008)
Recent cases—No genuine issue on conspiracy
Opinion, White v. R.M. Packer Co., No. 10-1130 (1st Cir. Feb. 18, 2011), aff'g in part, vacating in part, No. 3:04md1631 (D. Conn. Dec. 14, 2010)
Docket sheet (downloaded March 19, 2011)
Plaintiffs/Appellants’ Brief (March 24, 2010)
Defendants - Appellees’ Brief (April 28. 2011)
Plaintiffs/Appellants' Reply Brief (May 10, 2010)
Judgment (February 18, 2011)
Mandate (February 18, 2011)
Proof of conspiracy through circumstantial evidence at trial
The Mack Trucks Litigation
Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., No. 07-1811 (3d Cir. June 17, 2008) (reported as 530 F.3d 204)
± Fed. R. Civ. P. 50
(judgment as a matter of law (jmol) in a jury trial; related motion for a new trial; conditional ruling)
E.D. Pa. docket sheet (downloaded March 4, 2012) (case terminated June 12, 2009)
Defendant/Counterclaim Plaintiff Mack Trucks, Inc.'s Motion for Judgment as a Matter of Law (Sept. 26, 2006)
NB: Mack Trucks probably made its jmol motion in a hearing before the judge and at the same time submitted its supporting memorandum. In the same hearing, the judge apparently indicated that he would grant the motion with respect to the Section 1 claim, which is why the Plaintiff's memorandum is styled in as a motion for reconsideration.
Defendant Mack Trucks, Inc.'s Memorandum of Law in Opposition to Plaintiff's Motion for Reconsideration (Oct. 2, 2006)
Civil Judgment (Oct. 12, 2006)
On remand:
Verdict Slip (June 11, 2009)
Civil Judgment (June 11, 2008) (in favor of defendant following a jury verdict)
On second appeal:
Verdict slip (June 12, 2009)
Judgment (Aug. 10, 2010) (affirming judgment for defendant)
Reference Materials
Significant conspiracy precedents
± Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) (± Oyez)
± Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (± Oyez)
± Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984) (± Oyez)
± United States v. Container Corp. of Am., 393 U.S. 333 (1969) (price signaling)
± Theatre Enterprises, Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537 (1954) (parallel conduct)
± Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939)
± United States v. Colgate & Co., 250 U.S. 300 (1919)
Explicit agreement—Examples
± Sugar Institute v. United States, 297 U.S. 553 (1936)
± David Genesove & Wallace P. Mullin, The Sugar Institute Learns to Organize its Information Exchange (NBER Working Paper No. 5981, Ma. 1997)
± United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940)
United States v. Beaver, No. 07-1381 (7th Cir. Feb. 4, 2008) (affirming conviction) (reported at 515 F.3d 730)
Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., No. 07-1811(3d Cir. June 17, 2008) (reported at 530 F.3d 204)
Tacit agreement—Examples
± United States v. Container Corp. of Am., 393 U.S. 333 (1969), rev'g 273 F. Supp. 18 (M.D.N.C. 1967)
United States v. Airline Tariff Publ'g Co., 836 F. Supp. 9 (D.D.C. 1993)
Conscious parallelism
± Theatre Enterprises, Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537 (1954)
± Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, Inc., 203 F.3d 1028 (8th Cir. 2000) (en banc)
In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir. 1999)
White v. R.M. Packer Co., No. 10-1130 (1st Cir. Feb. 18, 2011)
Proving conspiracy through circumstantial evidence
Detailed examinations of the evidence
TruePosition, Inc. v. LM Ericsson Tel. Co., Civ. A. No. 11-4574 (E.D. Pa. 2012) (reported at 844 F. Supp. 2d 571)
Reports
± Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs Competition Committee, Prosecuting Cartels Without Direct Evidence of Agreement (DAF/COMP/GF(2006)7, rev. Sept. 11, 2006)
"Plus factors"
± Joseph E. Harrington, Jr., Posted Pricing as a Plus Factor, 7J. Competition L. & Econ. 1 (2011).
Economic evidence and the inference of conspiracy
± In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651 (7th Cir. 2002)
± JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775 (7th Cir. 1999)
± Gregory J. Werden, Economic Evidence on the Existence of Collusion: Reconciling Antitrust Law with Oligopoly Theory, 71 Antitrust L.J. 719 (2004).
Individual coconspirator participation
Order Denying Cypress' Motion for Summary Judgment or Partial Summary Judgment, In re Static Random Access Memory (SRAM) Antitrust Litig., No. 07-md-01819 CW (N.D. Cal. Dec. 10, 2010)
Hub and spoke conspiracies
± Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939)
Toys "R" Us, Inc. v. FTC, No. 98-4107 (7th Cir. Aug. 1, 2000) (reported at 221 F.3d 928)
Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., Nos. 08-1693 & 08-1694 (3d Cir. Apr. 16, 2010) (reported at 602 F.3d 237)
In re Electronic Books Antitrust Litig., 11 MD 2293 (DLC) (S.D.N.Y. May 15, 2012) (see case studies)
Invitations and acceptance through public media
Consolidated Amended Class Action Complaint, In re Airline Baggage Fee Antitrust Litig., Civ. A. No. 1:09-md-2089-TCB (N.D. Ga. Feb. 1, 2010)
Docket sheet (downloaded May 24, 2012)
Defendant Delta Air Lines, Inc.’s Memorandum of Law In Support of its Motion to Dismiss (Mar. 8, 2010) (Exhibit A) (Exhibit B)
Memorandum of Law in Support of Defendant Airtran Airways, Inc.’s Motion to Dismiss Consolidated Amended Class Action Complaint (Mar. 8, 2010)
[Opposition briefs under seal]
Defendant Delta Air Lines, Inc.’s Reply Brief in Support of its Motion to Dismiss (May 17, 2010) (Exhibit 1) (Exhibit 2)
Defendant Airtran Airways, Inc.’s Reply to Plaintiffs’ Opposition to Defendants’ Motions to Dismiss (May 17, 2010) (Exhibits A, B, C, D and E)
Order (August 2, 2010) (allowing plaintiffs' Section 1 claims to proceed and dismissing plaintiffs' Section 2 claims) (reported at 733 F. Supp. 2d 1348)
Answer of Delta Air Lines, Inc. (Aug. 16, 2010)
Defendant Airtran’s Answer to the Consolidated Amended Complaint (Aug. 16, 2010)
Unaccepted invitations to collude
± United States v. American Airlines, 743 F.2d 1114 (5th Cir. 1984), rev'g and remanding 570 F. Supp. 654 (N.D. Tex. 1983)
Complaint, In re U-Haul Int'l, Inc., No. C-4294 (F.T.C. June 9, 2010) (Exhibit A)
Agreement Containing Consent Order (June 9, 2010)
Decision and Order (June 9, 2010) (Public Record Version)
Analysis of Agreement Containing Consent Order To Aid Public Comment (June 9, 2010)
Statement of Chairman Leibowitz, Commissioner Kovacic, and Commissioner Rosch (June 9, 2010)
News Release (June 9, 2010)
Complaint, In re Valassis Commc'ns, No. C-4160 (F.T.C. filed Mar. 14, 2006) (Exhibit A)
Agreement Containing Consent Order (Mar. 14, 2006)
Initial Decision and Order (Mar. 14, 2006)
Analysis of Agreement Containing Consent Order to Aid Public Comment (Mar. 14, 2006)
New release (Mar. 14, 2006)
Final Decision and Order (Apr. 28, 2006)
Complaint, In re Stone Container Corp., No. C-3806 (F.T.C. filed Feb. 25, 1998)
Agreement Containing Consent Order to Cease and Desist (Feb. 25, 1998)
Analysis of Proposed Consent Order to Aid Public Comment (Feb. 25, 1998)
Concurring Statement of Chairman Pitofsky, Commissioner Anthony, and Commissioner Thompson (Feb. 25, 1998)
Dissenting Statement of Commissioner Swindle (Feb. 25, 1998)
News release (Feb. 25, 1998)
Final Decision and Order (June 3, 1998)
Concurring Statement of Chairman Pitofsky, Commissioner Anthony, and Commissioner Thompson (June 3, 1998)
Concurring Statement of Commissioner Azcuenaga (June 3, 1998)
Dissenting Statement of Commissioner Swindle (June 3, 1998)
News Release (June 3, 1998)
± See generally Paul S. Wallace, Jr., Attempt to Commit a Federal Crime: S. 171—A Proposed General Statute (Cong. Res. Serv. Rep. No. 98-554, June 16, 1998).
Facilitating practices generally
United States v. Airline Tariff Publ'g Co., 836 F. Supp. 9 (D.D.C. 1993).
± Joseph E., Harrington, Jr., A Theory of Tacit Collusion (January 2012).
Paolo Buccirossi, Facilitating Practices, in Handbook of Antitrust Economics 305 (Paolo Buccirossi ed., 2008)
± William H. Page, Facilitating Practices and Concerted Action Under Section 1 of the Sherman Act (May 2008)
± Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs Competition Committee, Roundtable on Facilitating Practices in Oligopolies (DAF/COMP(2008)24, Sept. 5, 2008).
± United States, Roundtable on Facilitating Practices in Oligopolies (OECD Directorate for Financial and Enterprise Affairs Competition Committee, DAF/COMP/WD(2007)112, October 4, 2008)
Price signaling
± United States v. Container Corp. of Am., 393 U.S. 333 (1969), rev'g 273 F. Supp. 18 (M.D.N.C. 1967)
Information exchanges
± Maple Flooring Mfrs. Ass'n v. United States, 268 U.S. 563 (1925)
± In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir. 2004)
± In re Baby Food Antitrust Litig., 166 F.3d 112 (3d Cir. 1999)
± Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs Competition Committee, Information Exchanges Between Competitors under Competition Law (DAF/COMP(2010)37, July 11, 2011).
Collusive "most favored nation" (MFN) clauses
± E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128 (2d Cir. 1984), vacating Ethyl Corp., 101 F.T.C. 425 (1983)
Connecticut Attorney General's Office, Press Release, Attorney General Investigates Potentially Anticompetitive E-Book Deals with Amazon and Apple (Aug. 2, 2010) (Apple letter) (Amazon letter)
Withdrawal from conspiracy
Order Denying LG Display Co., Ltd.’s and LG Display America, Inc.’s Motion for Partial Summary Judgment on Withdrawal, In re TFT-LCD (Flat Panel) Antitrust Litig., MDL. No. 1827 (N.D. Calif. September 26, 2011)
Order Denying LG Display Co., Ltd.'s and LG Display America, Inc.'s Motion for Partial Summary Judgment on Withdrawal, In re TFT-LCD (Flat Panel) Antitrust Litig., MDL. No. 1827 (N.D. Calif. September 18, 2012)
Challenges to nonconcerted oligopolistic behavior under Section 5
± E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128 (2d Cir. 1984), vacating Ethyl Corp., 101 F.T.C. 425 (1983)
Administrative complaint (May 30, 1979)
Initial Decision (Aug. 5, 1981) (finding violation)
Final Decision (Mar. 22, 1983) (finding violation)
See ± Boise Cascade Corp. v. FTC, 637 F.2d 573 (9th Cir. 1980),
Case Studies
eBooks (DOJ 2012)
eBooks (States AGs 2012)
eBooks (private 2011)
High Tech Employees (2012)
West Penn Allegheny Health System/UPMC (private 2009)
Iowa Ready-Mixed Concrete (private 2010)
Anderson News/American Media (private 2010)
Blood Reagents (private 2009)
eBooks
(DOJ 2012)
Complaint, United States v. Apple Inc., No. 12-cv-2826 (S.D.N.Y. filed April 11, 2012) (news release)
Docket sheet (downloaded Apr. 4, 2013)
Partial settlement by defendants Hachette, HarperCollins, and Simon & Schuster:
Stipulation (April 11, 2012)
[Proposed] Final Judgement as to Defendants Hachette, HarperCollins, and Simon & Schuster (April 11, 2012)
Competitive Impact Statement (April 11, 2012)
Stay Order (May 1, 2012) (staying case as to HarperCollins Publishers LL.C., Hachette Book Group, and Hachette Digital, Inc.)
Endorsed Letter (June 11, 2012) (excusing publication of the public comments in the Federal Register and instead allowing comments to be posted on the Antitrust Division website in conjunction with Federal Register publication of the internet address at which comments can be read and downloaded)
Letter to Judge Cote from Mark Ryan (DOJ) re response to Kohn letter (July 11, 2012)
± DOJ web page with links to all public comments
Detailed comments discussed in the U.S. response
ATC-0703 Apple, Inc.
ATC-0265 American Booksellers Association
ATC-0214 Authors Guild
ATC-0097 Barnes & Noble, Inc.
ATC-0775 Consumer Federation of America
ATC-0242 DeFiore, Brian
ATC-0125 Gaughran, David, et al.
ATC-0727 Independent Publishers
ATC-0143 Kohn, Bob
ATC-0144 Konrath, Joe
ATC-0228 American Specialty Toy Retailing Association
ATC-0845 National Association of College Stores
ATC-0374 Steerads, Inc.
Response of Plaintiff United States to Public Comments on the Proposed Final Judgment (July 23, 2012)
± DOJ web site (containing comments on proposed settlement)
Memorandum Opinion & Order (Aug. 6, 2012)
Plaintiff United States of America’s Notice of Motion for Entry of Final Judgment (Aug. 3, 2012)
Declaration of Stephanie A. Fleming in Support of Motion for Entry of Final Judgment (Aug. 3, 2012)
Exhibit 1: Certificate of Compliance with Provisions of the Antitrust Procedures and Penalties Act
Exhibit 2: {Proposed] Final Judgment as to Defendants Hachette, Harpercollins,and Simon & Schuster
Memorandum in Support of the United States’ Motion for Entry of Final Judgment (Aug. 3, 2012)
Penguin’s Observations with Respect to the Government’s Response to Public Comments and Motion for Entry of Final Judgment (Aug. 15, 2012)
Opposition of Holtzbrinck Publishers, LLC d/b/a Macmillan to the Plaintiff United States of America's Motion for Entry of Final Judgment (Aug. 15, 2012)
Reply Memorandum in Support of the United States’ Motion for Entry of Final Judgment (Aug. 22, 2012)
Declaration of Karry Lu in Support of the United States’ Motion for Entry of Final Judgment (Aug. 22, 2012) (Exhibit 1) (Exhibit 2)
Motion of Bob Kohn for Leave to Participate as Amicus Curiae (Aug. 13, 2012)
Memorandom in Support of Motion of Bob Kohn for Leave to Participate as Amicus Curiae (Aug. 13, 2012)
[Proposed] Brief of Bob Kohn* as Amicus Curiae (Aug. 13, 2012) (rejected by court)
Order (28, 2012) (granting motion to file and accepting amicus brief from the Authors Guild, and granting motion to file, rejecting Kohn's amicus brief as too long, and granting leave to five a brief not to exceed five pages).
Brief of Bob Kohn as Amicus Curiae (Sept. 4, 2012)
Supplemental Reply Memorandum in Support of the United States’ Motion for Entry of Final Judgment (Sept. 5, 2012) (addressing the amicus submissions of the Authors Guild and Mr. Bob Kohn)
Letter to Judge Cote from Simon Lipskar re comments on proposed consent decree (Sept. 5, 2012)
Opinion and Order (Sept. 6, 2012) (approving settlement)
Final Judgment (Sept. 6, 2012)
Motion by Bob Kohn for Leave to Intervene for Sole Purpose of Appeal (Sept. 7, 2012)
Memorandom of [sic] in Support of Motion by Bob Kohn for Leave to Intervene for the Sole Purpose of Appeal (Sept. 7, 2012)
Bob Kohn’s Motion to Stay Final Judgment Pending Appeal (Sept. 7, 2012)
Memorandum in Support of Bob Kohn’s Motion to Stay Final Judgment Pending Appeal (Sept. 7, 2012)
Opposition of the United States to Motion by Bob Kohn for Leave to Intervene (Sept. 17, 2012)
Settling Publishers' Memorandum of Law in Opposition the Motion by Bob Kohn for Leave to Intervene for Sole Purpose of Appeal (Sept. 17, 2012)
Memorandum of Law in Reply to Opposition of the United States to Motion by Bob Kohn for Leave to Intervene for the Sole Purpose of Appeal (Sept. 21, 2012)
Memorandum Opinion and Order (Oct. 2, 2012) (denying Kohn's motion to intervene)
Notice of Appeal (Oct. 2, 2012)
Second Circuit
Motion of the United States to Dismiss Appeal (Nov. 13, 2011)
Kohn’s Response Requesting Denial of United States’s Motion to Dismiss Kohn’s Appeal of the Order Denying His Motion to Intervene (Nov. 26, 2011)
Reply of the United States in Support of Motion to Dismiss Appeal (Dec. 3, 2012)
Stipulated Protective Order (May 9, 2012)
Apple Inc.'s Answer (May 22, 2012)
The Penguin Group Answer (May 29, 2012)
Answer of Defendant Holtzbrinck Publishers, LLC D/B/A MacMillan to the Complaint (May 29, 2012)
Joint Initial Report (June 15, 2012) (status report on all cases)
Exhibit 1: Exhibit Proposed Schedules
Exhibit 2:
Exhibit Parties' Current Disputes
Exhibit 3: Exhibit Joint ESI Submission
Letter addressed to Judge Denise L Cote from Daniel Floyd dated 6/19/2012 re: Apple's position on the remaining disputes among the parties re joint initial report (entered June 20, 2012)
Joint Initial Report—Revised July 6, 2012
Scheduling order (June 25, 2012) (all cases)
Letter to Judge Cote from Shepard Goldfein on behalf of settling defendants (June 25, 2012)
Letter to Judge Cote from State AGs (June 26, 2012) (informing court that Plaintiff States are amenable to a bench trial before the Court on issues of liability and injunctive relief in should that trial proceed concurrently with the trial in the DOJ case and reserving right to a jury trial on damages-related issues after the Court makes a determination on liability)
Partial settlement as to The Penguin Group
[Proposed] Final Judgment as to Defendants The Penguin Group, a Division of Pearson PLC, and Penguin Group (USA), Inc. (December 18, 2012) (news releasse)
Stpulation (December 18, 2012)
Competitive Impact Statement (December 18, 2012)
± DOJ comment page (with links to the three public comments)
Response by Plaintiff United States to Public Comments on the Proposed Final Judgment as to the Penguin Defendants (Apr. 5, 2013).
Partial settlement as to Holtzbrinck Publishers LLC (dba Macmillan)
[Proposed] Final Judgment as to Defendants Verlagsgruppe Georg Von Holtzbrinck GmbH & Holtzbrinck Publishers, LLC d/b/a Macmillan (Feb. 8, 2013)
Stipulation (Feb. 8, 2013)
Competitive Impact Statement (Feb. 8, 2013)
Exhibit A: Redline to Original Judgment (Feb. 8, 2013)
Exhibit B: Redline to Proposed Penguin Final Judgment (Feb. 8, 2013)
Commentary
± Christopher Matthews, Should Justice Drop the Apple Ebook Lawsuit?, Time.com (July 23, 2012)
± Sen. Charles Schummer, Memo to DOJ: Drop the Apple E-Books Suit, WSJ.com (July 17, 2012)
± Brad Stone & Felix Gillette, The DOJ's Publishing Lawsuit May Doom Digital Rights Management.Bloomberg BusinessWeek.com (Apr. 18, 2012)
± Geoffrey Manne, How Apple Can Defeat The DOJ's E-Book Antitrust Suit, Forbes.com (Apr. 12, 2012)
eBooks
(State AGs 2012)
W.D. Tex.
Complaint for Injunctive Relief, Civil Penalties & As Parens Patriae on Behalf of Consumers, Texas v. Penguin Group (USA) Inc., No. A12-CV-0324LY (W.D. Tex. filed Apr. 11, 2012)
First Amended Complaint for Injunctive Relief, Civil Penalties & As Parens Patriae on Behalf of Consumers, Texas v. Penguin Group (USA) Inc., No. A12-CV-0324LY (W.D. Tex. filed Apr. 18, 2012)
MDL Panel
Conditional Transfer Order (CTO-3), In re Electronic Books Antitrust Litig., MDL No. 2293 (J.P.M.L. Apr. 24, 2012) (transferring State AGs action to SDNY for pretrial coordination)
SDNY (MDL pretrial coordination)
SDNY docket sheet (No. 1:12-cv-03394-DLC) (downloaded Oct. 4, 2012)
Standing Order (Apr. 30, 2012) (designating case for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York)
Stipulated Protective Order (May 9, 2012)
Unopposed Motion for Leave to File Second Amended Complaint (May 11, 2012)
Order Granting Unopposed Motion for Leave to File Second Amended Complaint (May 11, 2012)
Second Amended Complaint for Injunctive Relief, Civil Penal Ties & As Parens Patriae on Behalf of Consumers, Texas v. Penguin Group (USA) Inc., No. 12-cv-03394 (S.D.N.Y. May 17, 2012), filed as part of In re Electronic Books Antitrust Litig., 11 MD 2293 (DLC).
Joint Initial Report (June 15, 2012) (status report on all cases)
Exhibit 1: Exhibit Proposed Schedules
Exhibit 2:
Exhibit Parties' Current Disputes
Exhibit 3: Exhibit Joint ESI Submission
Letter addressed to Judge Denise L Cote from Daniel Floyd dated 6/19/2012 re: Apple's position on the remaining disputes among the parties re joint initial report (entered June 20, 2012)
Joint Initial Report—Revised July 6, 2012
Scheduling Order (June 25, 2012) (all cases)
Letter to Judge Cote from State AGs (June 26, 2012) (informing court that Plaintiff States are amenable to a bench trial before the Court on issues of liability and injunctive relief in should that trial proceed concurrently with the trial in the DOJ case and reserving right to a jury trial on damages-related issues after the Court makes a determination on liability)
Joint Initial Report—Revised July 6, 2012
Order (Sept. 10, 2012) (informing parties that the Court waives any interest it might have as a purchaser of ebooks in the parens patriae lawsuits)
Partial settlement
Complaint, Texas v. Hachette Book Group, Inc., No. 12-civ-6625 (S.D.N.Y. filed Aug. 29, 2012) (against settling defendants Hachette Book Group, Inc., HarperCollins Publishers, LLC, Simon & Schuster, Inc., and Simon & Schuster Digital Sales, Inc.)
Memorandum in Support of Plaintiff States' Motion for Preliminary Approval of Settlements and Proposed Consumer Notice and Distribution Plans (Aug. 29, 2012)
Order Preliminarily Approving Proposed Settlements (Sept. 13, 2012)
Letter to the Court from Steve Berman (interim class counsel in private action) re consideration in preliminarily approving the state AG settlement (Sept. 13, 2012)
Plaintiff States' Status Update Regarding Settlement Notice and Dlistllubutlion Plans (Oct. 2, 2012)
Exhibit 1: Plaintiff States’ Proposed Consumer Distribution Plan
Exhibit 2:
Notice Plan
Order and Stipulated Injunction (Feb. 8, 2013)
Final Judgment (Feb. 8, 2013)
Pretrial
Notice of Penguin Group (USA), Inc.’s Motion for a Jury Trial on the Plaintiff States’ Claims (Mar. 15, 2013)
Memorandum of Law in Support of Penguin Group (USA), Inc.’s Motion for a Jury Trial on the Plaintiff States’ Claims (Mar. 15, 2013)
Plaintiff States’ Memorandum in Opposition to Penguin Group (USA), Inc.’s Motion for a Jury Trial on the Plaintiff States’ Claims (Mar. 15, 2013)
eBooks
(private 2011)
Initial complaints
Complaint, Petru v. Apple Inc., No. 11-3892 (N.D. Cal. filed August 9, 2011)
Complaint, Grover v. MacMillan, No. 11-cv-5576 (S.D.N.Y. filed August 10, 2011)
Docket sheet (downloaded March 4, 2012)
Proposed Intervenor Anthony Petru’s Motion to Intervene and Motion to Transfer or, in the Alternative, Stay Action (August 24, 2011)
Proposed Intervenor Anthony Petru’s Memorandum Law in Support of Motion to Intervene and Motion to Transfer or, in the Alternative, Stay Action (August 24, 2011)
Complaint, Burstein v. Hachette Book Group, Inc., No. 11-cv-5621 (S.D.N.Y. filed August 12, 2011)
Docket sheet (downloaded May 21, 2012)
MDL:
Consolidated Class Action Complaint, In re Electronic Books Antitrust Litig., 11 MD 2293 (DLC) (S.D.N.Y. filed Jan. 20, 2012)
Docket sheet (downloaded Apr. 4, 2013)
Transfer Order, In re Electronic Books Antitrust Litig., MDL No. 2293 (J.P.M.L. Dec. 9, 2012)
Standing Order In re Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (Dec. 9, 2012)
Order (Dec. 20, 2012) (waiving any interest the court might have in the putative class action lawsuit)
Case Management Order (Dec. 21, 2012) (among other things redesignating case caption as In re Electronic Books Antitrust Litigation, 11 MD 2293 (DLC))
Consolidated Class Action Complaint (Jan. 20, 2012)
Notice of Defendant Apple Inc.’s Motion to Dismiss the Consolidated Amended Class Action Complaint (Mar. 2, 2012)
Apple Inc.’s Memorandum of Law in Support of Motion to Dismiss the Consolidated Amended Class Action Complaint (Mar. 2, 2012)
Plaintiffs’ Consolidated Opposition to Defendants’ Motions to Dismiss (Mar. 30, 2012)
Notice of Supplemental Authority (Apr. 5, 2012)
Apple Inc.’s Reply in Support of Motion to Dismiss the Consolidated Amended Class Action Complaint (Apr. 13, 2012)
Opinion and Order (May 15, 2012)
Publisher Defendants’ Motion to Dismiss the Consolidated Amended Class Action Complaint (Mar. 2, 2012)
Memorandum of Law in Support of Publisher Defendants’ Motion to Dismiss the Consolidated Amended Class Action Complaint (Mar. 2, 2012)
Plaintiffs' Consolidated Opposition to Defendants' Motions to Dismiss (Mar. 30, 2012)
Notice of Supplemental Authority (Apr. 5, 2012)
Opinion and Order (May 15, 2012)
Stay Order (May 1, 2012) (staying case with respect to settling defendants HarperCollins Publishers, Hachette Book Group, Inc., and Hachette Digital Inc.)
Stipulated Protective Order (May 9, 2012)
Scheduling Order (June 25, 2012) (all cases)
Commentary:
± Steven Pearlstein, Pick your monopoly: Apple or Amazon, WashingtonPost.com, March 10, 2012.
± Letter from Scott Turow, President, The Authors' Guild (Mar. 9, 2012).
High Tech Employees
State court complaint:
Complaint for Violations of: (1) the Cartwright Act (Business and Professions Code Sections 16720, Et Seq.); (2) Business and Professions Code Section 16600; and (3) the Unfair Competition Law (Business and Professions Code Sections 17200, Et Seq.), Hariharan v. Adobe Sys., Inc., No. RG11574066 (Super. Ct. Alameda Cty. filed May 4, 2011) (alleging that defendants engaged in a price-fixing conspiracy with respect to the compensation of the plaintiff employees)
Removal to federal court:
Docket sheet (Case No. 5:11-cv-02509) (downloaded March 4, 2012)
Joint Notice of Removal of Action from State Court Pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446 & 1453 (May 23, 2011)
Declination to Proceed before a Magistrate Judge and Request for Reassignment to a United States District Judge (May 27, 2011) (filed by plaintiff Hariharan)
Administrative Motion to Consider Whether Cases Should Be Related (July 19, 2011) (filed by defendants)
Plaintiff’s Response to Defendants’ Administrative Motion to Consider Whether Cases Should Be Related (July 20, 2011)
Related Case Order (July 27, 2011) (granting motion to relate cases)
Plaintiffs’ Unopposed Administrative Motion to Transfer Actions to the San Jose Division (August 2, 2011)
Order (August 4, 2011) (transferring cases to the San Jose Division)
Stipulated Pretrial Order As Modified No. 1 (September 12, 2011)
Consolidated Amended Complaint, In re High-Tech Employee Antitrust Litig., No. 11-CV-2509-LHK (N.D. Cal. filed September 13, 2011)
Defendants' Notice of Motion, Joint Motion to Dismiss the Consolidated Amended Complaint, and Memorandum of Points and Authorities in Support Thereof [Fed. R. Civ. P. 12(B)(1) & 12(B)(6)] (October 13, 2011) (declaration)
Plaintiffs' Opposition to Defendants' Joint Motion to Dismiss (November 4, 2011)
Defendants’ Reply in Support of Joint Motion to Dismiss the Consolidated Amended Complaint (December 2, 2011)
Discovery Dispute Joint Report #1 (October 13, 2011) (over staying discovery pending decision on motion to dismiss)
Joint Case Management Conference Statement (January 1, 2012) (interesting play by plaintiffs to put facts before the court while decision on motion to dismiss is pending)
Stipulation and Order Concerning Testifying Expert Discovery (January 23, 2012)
Stipulated Protective Order (January 24, 2012) (as modified by the court)
Joint Case Management Conference Statement (January 27, 2012)
Prior DOJ action
Complaint, United States v. Adobe Sys., Inc., Civ. A. No. 1:10-cv-01629 (D.D.C. filed Sept. 24, 2010) (news release)
Stipulation (September 24, 2010)
[Proposed] Final Order (September 24, 2010)
Competitive Impact Statement (September 24, 2010)
Plaintiff United States' Explanation of Consent Decree Procedures (September 24, 2010)
Final Judgment (March 18, 2011)
West Penn Allegheny Health System/UPMC
(private 2009)
District court
Memorandum Opinion, West Penn Allegheny Health Sys., Inc. v. UPMC, No. 09cv0480 (W.D. Pa. Oct. 29, 2009)
W.D. Pa. docket sheet (downloaded Aug. 28, 2012)
Amended Complaint (August 28, 2009)
Appeal to the Third Circuit
Opinion, West Penn Allegheny Health Sys., Inc. v. UPMC, No. 09-4468 (3d Cir. Nov. 11, 2010) (reported as 627 F.3d 85) (reversing dismissal of complaint and remanding)
Third Circuit Docket sheet (downloaded March 4, 2012)
Brief of Appellant West Penn Allegheny Health System, Inc. (Jan. 26, 2010)
Brief of Defendant-Appellee UPMC (Mar. 1, 2010)
Brief of Appellee Highmark Inc. (Mar. 1, 2010)
Reply Brief of Appellant West Penn Allegheny Health System, Inc. (Mar. 18, 2010)
On remand
Order (February 3, 2012) (consolidating cases for discovery)
Second Amended Complaint (Apr. 24, 2012)
UPMC's Answer, Affirmative Defenses and Counterclaims (May 23, 2012)
Countersuit
UMPC v. Highmark, Inc., No. 2:12-cv-00692-JFC (W.D. Pa. filed May 23, 2012)
Docket sheet (downloaded Oct. 16, 2012)
Defendant Highmark Inc.’s Motion to Dismiss All Claims In UPMC's Complaint (Aug. 24, 2012)
Defendant Highmark Inc.’s Memorandum of Law in Support of Motion to Dismiss All Claims in UPMC's Complaint (Aug. 24, 2012)
West Penn Allegheny Health System Inc.’s Motion to Dismiss Counts V, VI and VII of UPMC's Complaint (Aug. 24, 2012)
First Amended Complaint (Swept. 20, 2012)
Defendants Highmark Inc., Protoco PPI LLC, Protoco Supply Chain Services LLC, and HMPG Pharmacy LLC’S Renewed Motion to Dismiss (Oct. 11, 2012)
West Penn Allegheny Health System Inc.’s Motion to Dismiss Counts V, VI And VII of the Amended Complaint (Oct. 12, 2012)
Iowa Ready-Mixed Concrete
(private 2010)
Memorandum Opinion and Order Regarding Defendants' Motions to Dismiss Consolidated Class Action Complaint and Amended Consolidated Class Action Complaint, In re Iowa Ready-Mixed Concrete Antitrust Litig., No. C 10-4038-MWB (N.D. Iowa Mar. 8, 2011)
Docket sheet (downloaded March 10, 2012)
Class Action Complaint (May 4, 2010)
Summons in a Civil Action (May 5, 2010)
Case packs provided by the Clerk of the Court to plaintiffs (May 5, 2010)
First Amended Class Action Complaint (May 20, 2010)
Order re Consolidation, Stay, and Procedures For Selecting Interim Class Counsel (June 10, 2010)
Order re Selection of Interim Class Counsel and Liaison Counsel (June 15, 2010)
Order (June 22, 2010) (regarding possible use of auction process to select lead counsel)
Order (June 30, 2010) regarding solicitation of clients)
Order Appointing Interim Lead Counsel and Interim Liaison Counsel (July 7, 2010)
Consolidated Class Action Complaint and Demand for Jury Trial (July 26, 2010)
Stipulated Scheduling Order and Discovery Plan (Aug. 17, 2010)
Order Setting Trial, Final Pretrial Conference and Requirements for Final Pretrial Order (Sept. 13, 2010)
Motions to dismiss:
Defendant GCC Alliance Concrete, Inc.’s Motion to Dismiss Plaintiffs’ Consolidated Complaint (Sept. 17, 2010)
Defendant GCC Alliance Concrete, Inc.’s Brief in Support of its Motion to Dismiss Plaintiffs’ Consolidated Complaint (Sept. 17, 2010) (Exhibit A) (Exhibit B)
Defendant Steven Keith Vandebrake’s Motion to Dismiss Plaintiffs’ Consolidated Complaint (Sept. 17, 2010)
Motion To Dismiss VS Holding Company (Sept 17, 2010)
Brief in Support of Motion to Dismiss VS Holding Company (Sept. 17, 2010)
Defendants Great Lakes Concrete, Inc.'s and Kent Stewart's Motion to Dismiss Plaintiffs' Consolidated Complaint (Sept. 17, 2010)
Plaintiffs’ Omnibus Opposition to Defendants’ Motions to Dismiss (Oct. 11, 2010)
Defendant GCC Alliance Concrete, Inc.’s Reply Brief in Support of its Motion to Dismiss Plaintiffs’ Consolidated Complaint (Oct. 21, 2010)
Reply of VS Holding Company to Plaintiffs' Omnibus Opposition to Defendants' Motions to Dismiss (Oct. 21, 2010)
Defendants Great Lakes Concrete, Inc.'s and Kent Stewart's Reply in Support of their Motion to Dismiss Plaintiffs' Consolidated Complaint (Oct 21, 2010) (joining in GCC's reply)
Amended Consolidated Class Action Complaint and Demand For Jury Trial (Dec. 21, 2010)
NB: The various parties filed notices that their respective briefing papers addressing the motion to dismiss the Consolidated Class Action Complaint applied a well to the Amended Consolidated Class Action Complaint.
Second Amended Consolidated Class Action Complaint
Second Amended Consolidated Class Action Complaint and Demand for Jury Trial (Apr. 25, 2011)
Motion to Dismiss Second Amended Consolidated Complaint by VS Holding Company (May 10, 2011)
VS Holding Company's Brief in Support of Motion to Dismiss Plaintiffs' Second Amended Consolidated Complaint (May 10, 2011) (Exhibit)
Defendant GCC Alliance Concrete, Inc.’s Motion to Dismiss Plaintiffs’ Second Amended Consolidated Complaint (May 16, 2011)
Defendant GCC Alliance Concrete, Inc.’s Brief in Support of its Motion to Dismiss Plaintiffs’ Second Amended Consolidated Complaint (May 16, 2011)
Defendant Steven Keith Vandebrake’s Motion to Dismiss Plaintiffs’ Second Amended Consolidated Class Action Complaint (May 16, 2011)
Defendants Tri-State Ready Mix, Inc.'s and Chad Van Zee's Motion to Dismiss Plaintiffs' Second Amended Consolidated Complaint (May 16, 2011)
Defendants Great Lakes Concrete, Inc.'s and Kent Stewart's Motion to Dismiss Plaintiffs' Second Amended Consolidated Complaint (May 16, 2011)
Settlement and preliminary approval:
Joint Motion to Stay Litigation as to Settling Defendants (May 19, 2011)
Unopposed Motion for Preliminary Approval of Settlement Agreements and Preliminary Certification of Settlement Classes (July 15, 2011)
Brief in Support
Exhibit 1—Alliance/Tri-State Settlement Agreement
Exhibit 2—Alliance/Great Lakes Settlement Agreement
Exhibit 3—Alliance/Siouxland Settlement Agreement
Declaration of Irwin B. Levin
Text of Proposed Order (Preliminary Approval of Alliance/Tri-State Settlement)
Text of Proposed Order (Preliminary Approval of Alliance/Great Lakes)
Text of Proposed Order (Preliminary Approval of Alliance/Siouxland Settlement)
Order (July 15, 2011) (denying, in anticipation of settlements, all outstanding motions to dismiss without prejudice to being reasserted at a later date)
Order Preliminarily Approving Settlement, Certifying Alliance/Great Lakes Settlement Class, and Directing Notice (July 20, 2011)
NB: Similar orders were entered with respect to the other settling defendants
Attorneys' fees
Plaintiffs’ Motion for an Award of Attorneys’ Fees, the Reimbursement of Expenses, and Incentive Awards for Class Representatives (Sept. 2, 2011)
Brief in Support
Declaration of Irwin B. Levin
ACPERA cooperation
Defendant Siouxland Concrete Company's Motion for Finding of "Satisfactory Cooperation" (Oct. 17, 2011)
Exhibit A—ACPERA
Exhibit B—2009 ACPERA extension
Exhibit C—2010 ACPERA extension
Exhibit D— Defendant Siouxland Concrete Company's Memorandum of Law in Support of its Motion for Finding of "Satisfactory Cooperation"
Exhibit E—Proposed Finding Of "Satisfactory Cooperation" Of Defendant Siouxland Concrete Company
Finding of “Satisfactory Cooperation” of Defendant Siouxland Concrete Company (Oct. 31, 2011)
Final approval:
Order Approving Alliance/Great Lakes Settlement and Final Judgment (Nov. 1, 2011)
NB: Similar orders were entered with respect to the other settling defendants
Judgment (Nov. 2, 2011) (Great Lakes)
NB: Similar orders were entered with respect to the other settling defendants
Plan of distribution:
Plaintiffs’ Motion for Approval of Plan of Distribution (Dec. 12, 2011)
Exhibit A—Declaration of Michelle La Count
Exhibit B—Sample Notice and Claim Form for Alliance/Siouxland Settlement
Exhibit C—Sample Notice and Claim Form for Alliance/Tri-State Settlement
Exhibit D—Sample Notice and Claim Form for Alliance/Great Lakes Settlement
Text of Proposed Order
Order Granting Plaintiffs’ Motion for Approval of Plan of Distribution (Dec. 13, 2011)
Anderson News/American Media (2009)
Complaint, Anderson News, L.L.C. v. American Media, Inc., No. 09 Civ. 2227 (PAC) (S.D.N.Y. filed Mar. 10, 2009)
The district court dismissed on Twombly grounds a complaint alleging a horizontal group boycott by magazine publishers against a magazine wholesaler; the Second Circuit vacated and remanded. Anderson News, L.L.C. v. American Media, Inc., 732 F. Supp. 2d 389 (S.D.N.Y. 2010), vacated and remanded, 680 F.3d 162 (2d Cir. 2012)
District court:
Docket sheet (downloaded July 7, 2012)
Motion to dismiss:
Notice of Motion to Dismiss (Dec. 14, 2009) (by American Media, Inc., Bauer Publishing Co., LP, Rodale, Inc., Curtis Circulation Company and Kable Distribution Services, Inc.)
Distribution Services Inc.’s Notice of Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Dec. 14, 2009)
Memorandum of Law in Support of Defendant Distribution Services, Inc.’s Motion to Dismiss the Complaint (Dec. 14, 2009)
Motion to Dismiss (Dec. 14, 2009) (by Hudson News)
Memorandum of Law in Support of Defendant Hudson News Distributors L.L.C.'s Motion to Dismiss Plaintiffs' Complaint (Dec. 14, 2009)
Notice of Motion (Dec. 14, 2009) (by Time Warner)
Notice of Motion (Dec. 14, 2009) (by Hachette)
Defendant Hachette Filipacchi Media U.S., Inc.’a Memorandum of Law in Support of its Motion to Dismiss (Dec. 14, 2009)
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions to Dismiss (Jan. 19, 2010)
Reply Memorandum of Law in Further Support of Defendant Distribution Services, Inc.’s Motion to Dismiss the Complaint (Feb. 2, 2010)
Defendant Hachette Filipacchi Media U.S., Inc.’s Reply Memorandum in Further Support of its Motion to Dismiss (Feb. 2, 2010)
Reply in Support of Defendant Hudson News Distributors L.L.C.’s Motion to Dismiss Plaintiffs’ Complaint (Feb. 2, 2010)
Opinion & Order (Aug. 2, 2010) (dismissing the complaint with prejudice and denying leave to amend)
Motion for Reconsideration:
Notice of Motion (Aug. 16, 2010) (for reconsideration)
Exhibit A: [Proposed} Amended Complaint
Defendant Hudson News Distributors L.L.C’s Memorandum of Law in Opposition to Plaintiffs’ Motion for Reconsideration (Sept. 2, 2010)
Joint Memorandum of Law in Opposition to Plaintiffs' Motion for Reconsideration (Sept. 3, 2010) (on behalf of American Media, Inc., Bauer Publishing Co., LP., Curtis Circulation Company, Distribution Services, Inc., Hachette Filipacchi Media, U.S., Kable Distribution Services, Inc., and Rodale, Inc.)
Plaintiffs' Reply Memorandum of Law In Further Support of their Motion for Reconsideration (Sept. 14, 2010)
Order (Oct. 25, 2010) (denying reconsideration)
Notice of Appeal (Nov. 8, 2010)
Second Circuit
Docket sheet (downloaded July 8, 2012) (No. 10-4591)
Brief for Plaintiffs-Appellants Anderson News, L.L.C. and Anderson Services, L.L.C. Supporting Reversal of the District Court (Jan. 21, 2011) (Appendix)
Brief of Defendant-Appellee Kable Distribution Services, Inc. (Apr. 18, 2011)
Brief for Defendants-Appellees American Media, Inc. and Distribution Services, Inc. (Apr. 18, 2011)
Brief for Defendant-Appellee Curtis Circulation Company (Apr. 18, 2011)
Brief for Defendant-Appellee Hachette Filipacchi Media U.S., Inc. (Apr. 18, 2011)
Brief for Defendant-Appellee Rodale, Inc. (Apr. 18, 2011)
Brief for Defendant-Appellee Hudson News Distributors L.L.C. in Support of the District Court’s Judgment (Apr. 18, 2011)
Brief for Defendants-Appellees Time Inc. and Time/Warner Retail Sales & Marketing, Inc. (Apr. 18, 2011)
Reply Brief for Plaintiffs-Appellants Anderson News, L.L.C. and Lloyd T. Whitaker, As Assignee for Anderson Services, L.L.C. (May 16, 2011)
Opinion, Anderson News, L.L.C. v. American Media, Inc., No. 10-4591-cv (2d Cir. Apr. 3, 2012) (reported as 680 F.3d 162)
Judgment (Apr. 3, 2012)
On remand to district court
Blood Reagents
(private 2009)
Consolidated Amended Class Action Complaint, In re Blood Reagents Antitrust Litig., MDL No. 09-2081 (E.D. Pa. filed Feb. 16, 2010)
Docket sheet (downloaded July 23, 2012)
Transfer Order (J.P.M.L. Aug. 17, 2009)
Conditional Transfer Order (CTO-1) (J.P.M.L. Aug. 19, 2009)
Defendant Immucor, Inc.'s Motion to Dismiss the Consolidated Amended Class Action Complaint (Mar. 17, 2010) (with supporting memorandum)
Plaintiffs' Memorandum of Law in Opposition to Defendants' Motions to Dismiss the Consolidated Amended Class Action Complaint (June 23, 2010)
Reply Memorandum of Law in Support of Immucor, Inc.’s Motion to Dismiss the Consolidated Amended Class Action Complaint (July 7, 2010)
Order (Aug. 24, 2010) (denying the motions to dismiss by Ortho-Clinical Diagnostics and Immucor and granting the motion to dismiss by Johnson & Johnson Health Care Systems)
Memorandum (Aug. 24, 2010)
Defendants' Motion for Reconsideration or for Certification of an Interlocutory Appeal (Sept. 7, 2010)
Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Reconsideration or for Certification of an Interlocutory Appeal (Oct. 5, 2010)
Reply Memorandum of Law in Support of Defendants’ Motion for Reconsideration or for Certification of an Interlocutory Appeal (Sept. 10, 2010)
Plaintiffs' Sur-Reply Memorandum of Law in Opposition to Defendants' Motion for Reconsideration or for Certification of an Interlocutory Appeal (Oct. 19, 2010)
Memorandum (Dec. 14, 2010) (denying motion for reconsideration or, in the alternative, for interlocutory appeal)