Antitrust

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An appellate decision has to be really, really wrong before the same Court will decide that it shouldn’t be treated as the "law of the case." In fact, the wrongness has to be as overpowering as a very old and very dead fish, per the Fourth Circuit’s opinion today in TFWS, Inc. v. Franchot.

The law of the case doctrine says that the decision of an appellate court "must be followed in all subsequent proceedings in the same case."  The doctrine can be avoided if "(1) a subsequent trial…

Continue Reading The Law Of The Case And Dead And Stinky Fish

The Fourth Circuit held today that the manner in which manufacturers of pest control products sold their products to consumers did not constitute illegal resale price maintenance.  The decision in Valupest.com of Charlotte, Inc. v. Bayer Corp. rejected Plaintiffs’ argument that an antitrust stalwart, United States v. General Electric Co., 272 U.S. 476 (1926) had been overruled by a recent decision of the Supreme Court, Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007).

Both Defendant Bayer Corporation, which sells a termite killer called Premise…

Continue Reading Fourth Circuit Rules No Vertical Price Fixing In Manufacturers’ Sale Of Pesticide

The courthouse door in North Carolina is now wide open to antitrust plaintiffs making indirect purchaser claims, after the Court of Appeals’ decision this week in Teague v. Bayer.  That decision reverses the North Carolina Business Court’s dismissal of the case for lack of standing.

For those whose hearts don’t start beating faster when reading about antitrust cases, an "indirect purchaser" is "one who purchases a product from some intermediary party rather than directly from the manufacturer." 

Teague alleges that he purchased garden hoses, roofing materials, and other items…

Continue Reading North Carolina Court Of Appeals Reinstates Antitrust Class Action

The Court found that the Noerr-Pennington doctrine did not apply to the false submission of data to a public agency.  The Court further found this conduct was not entitled to free speech protection under the First Amendment and the North Carolina Constitution.  Nor were the Defendants entitled to state action immunity, or the protection of the filed rate doctrine. 

Full OpinionContinue Reading State ex rel. Cooper v. McClure, December 14, 2004 (Tennille)(unpublished)

The Business Court has mandatory jurisdiction under N.C. Gen. Stat. §7A-45.4 over claims involving "antitrust law, except claims based solely on unfair competition under N.C. Gen. Stat. §75-1.1." 

The Court gave a broad reading to its grant of its antitrust jurisdiction in an Order today in Sonic Automotive, Inc. v. Mercedes-Benz USA, LLC, in which it denied an objection to a Notice of Designation of the case as a mandatory complex business case. 

Sonic, which already owned nine Mercedes dealerships, sued Mercedes-Benz for refusing to approve its purchase of another dealership…

Continue Reading Business Court Gives Broad Interpretation To Its Mandatory Jurisdiction Over Antitrust Cases

The Court granted Plaintiff’s Motion for Summary Judgment, ruling that the defendants had participated in a conspiracy in restraint of trade with regard to public contracts for the remediation of underground storage tanks. The Court found that the defendants had engaged in an orchestrated effort to submit artificially high bids in response to a solicitation for bids from a state agency. The defendants had done this by submitting an inaccurate survey to the state agency as to what a reasonable rate for their services would be, and by encouraging the…

Continue Reading State ex rel. Cooper v. McClure, 2007 NCBC 24 (N.C. Super. July 19, 2007)(Tennille)

The Court, again, considered the issue of indirect purchaser standing. It reiterated the factors it looks to in determining whether there is such standing, as articulated in its opinion in Crouch v. Crompton Corp.

Crouch had involved one product, tires, but this case involved ethylene propylene diene monomer, which the Court observed might be used in hundreds of products. The recovery to individual consumers would therefore be miniscule, and the Court observed that "[t]he funds from these settlements are destined to end up in the hands of the lawyers, a…

Continue Reading Teague v. Bayer AG, 2007 NCBC 12 (N.C. Super. Ct. May 7, 2007)(Tennille)

Plaintiff, a state agency, charged that the defendants had engaged in a conspiracy to fix prices for environmental consulting work. The defendants claimed that they were entitled to immunity under the Noerr-Pennington doctrine. The Court rejected this argument, characterizing defendants’ supposedly protected conduct as involving the submission of false data for the purpose of inflating reimbursement rates. It held that the defendants were using anticompetitive means for the purpose of economic gain, which was not entitled to immunity under Noerr-Pennington or as protected free speech.

The Court further held, in…

Continue Reading State of North Carolina ex rel. Cooper v. McClure, 2004 NCBC 8 (N.C. Super. Ct. Dec. 14, 2004)(Tennille)

The Court addressed again the issue of indirect purchaser standing under the North Carolina antitrust laws in these consolidated cases. It held that although such purchasers do have standing, there are limitations on that standing which barred the claims of the plaintiffs and it granted defendants’ motion to dismiss.

In the first case, the plaintiffs were purchasers of automobile tires whose price had been affected by collusion on the price of rubber. In the second, the plaintiffs were credit card holders who claimed they had paid higher prices for goods…

Continue Reading Crouch v. Crompton Corp. and Morris v. Visa U.S.A. Inc., 2004 NCBC 7 (N.C. Super. Ct. Oct. 26, 2004)(Tennille)