Notable Recent Decisions

Click titles below to view case summaries:

HORIZONTAL RESTRAINTS

Second Circuit:
• City of New York v. Grp. Health Inc.

Eastern District of New York:
• In re: Vitamin C Antitrust Litig.

Southern District of New York:
• In re Digital Music Antitrust Litig.
• In re Currency Conversion Fee Antitrust Litig.
• United States v. KeySpan Corp.

First Department:
• Global Reinsurance Corp. v. Equitas Ltd.

VERTICAL RESTRAINTS

Southern District of New York:
• Worldhomecenter.com, Inc. v. KWC America, Inc.
• In re: Set-Top Cable Television Box Antitrust Litig.

CLASS ACTION

U.S. Supreme Court:
• AT&T Mobility LLC v. Concepcion
• Wal-Mart Stores, Inc. v. Dukes et al.

Third Circuit:
• Behrend v. Comcast Corp.

Southern District of New York:
• Blessing v. Sirius XM Radio Inc.

Eastern District of Pennsylvania:
• In re: Wellbutrin XL Antitrust Litigation

Committee Contact Information

Horizontal Restraints Committee

Chair: Robin van der Meulen
Willkie Farr & Gallagher LLP rvandermeulen@willkie.com

Vice-Chair: Gregory Asciolla
Labaton Sucharow LLP gasciolla@labaton.com

Vertical Restraints Committee

Chair: Daniel Anziska
Troutman Sanders LLP Daniel.Anziska@troutmansanders.com

Vice-Chair: Fusae Nara
Pillsbury Winthrop Shaw Pittman fusae.nara@pillsburylaw.com

Class Action Committee

Chair: Hollis Salzman
Labaton Sucharow LLP HSalzman@labaton.com

Vice-Chair: Kerin E. Coughlin
Constantine Cannon LLP kcoughlin@constantinecannon.com

Winter 2011

This newsletter is published by the three newly formed committees of the Antitrust Law Section:  The Class Action Committee; the Vertical Restraints Committee; and the Horizontal Restraints Committee.  The Antitrust Law Section formed the committees in early 2011 to expand the activities of the Section and to offer additional opportunities for Section members to participate in the Section’s activities.  All members of the Antitrust Law Section are invited to join the committees.

The newsletter will be published three times a year.  Each edition will include brief summaries of recent decisions issued by New York courts and regulatory agencies that are relevant to antitrust law.  Each newsletter will also include a longer thought piece on a current antitrust law issue.  Comments on the newsletter are welcome and should be submitted to the committee Chairs.

Featured Article

Antitrust Class Proceedings in the Wake of Concepcion
by John J. Imhoff III, New York Law School J.D. Candidate, 2012
and Dan Vitelli, Constantine Cannon LLP

Class actions—and by extension class arbitrations—are often an effective means of alleviating the burdensome costs of litigation for individual consumers.  They can allow individual plaintiffs to seek damages and hold businesses accountable for anticompetitive conduct.  See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) ("The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.") (quotes and cites omitted).  Accordingly, antitrust class actions are a key component of private antitrust enforcement.

However, antitrust class actions and class arbitrations may soon be significantly less available to individual consumer plaintiffs.  In AT&T Mobility LLC v. Concepcion (summarized above), the Supreme Court held that the Federal Arbitration Act (FAA) "ensure[s] the enforcement of arbitration agreements according to their terms[,]" therefore states must enforce arbitration agreements that require consumer complaints to be arbitrated individually, rather than resolved collectively (through arbitration or otherwise).  131 S. Ct. 1740, 1748 (2011) (quotes and cites omitted).  Under a broad reading of that case, a business arguably could eliminate the threat of class-wide resolution of antitrust claims simply by including mandatory arbitration provisions and class action waivers in their consumer agreements.

Two months before Concepcion, the Second Circuit in In re American Express Merchants’ Litigation, 634 F.3d 187 (2d Cir. 2011) ("In re AMEX"), addressed whether a class action or class arbitration waiver should be enforced in an antitrust case.  In In re AMEX, a putative class of merchants sued AMEX under the Sherman Act, and claimed that the provisions in AMEX's card acceptance agreements mandating individual rather than collective arbitration were unenforceable.  Id. at 190-92.   The Second Circuit agreed.  Id. at 199.  Citing Supreme Court precedent, it stated that "an agreement which in practice acts as a waiver of future liability under the federal antitrust statutes is void as a matter of public policy."  Id. at 197 (citations omitted).  Because the In re AMEX record indicated that the costs of individual arbitration would be prohibitive, the Second Circuit found that enforcing the waiver would effectively preclude plaintiffs from vindicating their statutory rights under the antitrust laws.  Id. at 197–98.  Therefore, in the absence of alternative means of vindicating those rights, the waiver was unenforceable.  Id. at 199.

In light of Concepcion, on May 9, 2011, the Second Circuit requested letter briefing on how Concepcion applies to In re AMEX.  As of August 1, 2011, the Second Circuit panel is sua sponte considering whether a rehearing is warranted.  The ultimate resolution of In re AMEX will likely have a profound impact on the enforceability of class action or class arbitration waivers in the antitrust context.  Although Concepcion announced that "States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons," the related questions left to be answered are whether and when class action or class arbitration waivers will be enforceable despite at least arguable inconsistencies with federal statutory structures such as the Sherman Act.  In the meantime, expect to see a great deal more consumer agreements that include mandatory arbitration provisions and class waiver clauses.