Chapter IX Private Antitrust Suits
| Pages | 155-206 |
PRIVATE ANTITRUST SUITS
Injury-in-Fact
In Continental Automotive Systems v. Avanci LLC,1 the Fifth Circuit
held that plaintiff had not pleaded injury-in-fact by alleging that it risked
suffering harm should “several layers of decisions by third parties” occur
because such “potential of [] being injured” was too speculative.2 The
court also held that allegations that defendants’ refusal to provide the
plaintiff a license on FRAND terms did not amount to a cognizable injury-
in-fact.3 The court reasoned that the plaintiff was not a third-party
benficiary entitled to such a license under the relevant FRAND contracts
and therefore was not denied property to which it was entitled.4
In SmileDirectClub, LLC v. Tippins,5 the Ninth Circuit held that
plaintiffs established injury-in-fact by alleging that defendants’ “campaign
App. LEXIS 17079 (5th Cir. 2022) (per curiam).
2. Id. at 332-33; see also Marion Healthcare, LLC v. S. Ill. Hosp. Servs., 2022
U.S. Dist. LEXIS 234006, at *5-7 (N.D. Ill. Dec. 30, 2022) (dismissing
amended complaint with prejudice concluding that the plaintiff failed to
provide factual support to show injury to itself by alleging that “SIH’s
acquisition of Harrisburg further enhances its ability to attract and retrain,
on an exclusive basis, surgeons who might otherwise join Marion as
providers” because “there [wa]s no supporting evidence that [the plaintiff]
had, in fact, suffered a loss of potential surgeons”).
3. Continental, 27 F.4th at 333-34.
4. Id. The court noted that even assuming, arguendo, that the plaintiff was
contractually entitled to a license on FRAND terms as a third-party
beneficiary, it did not experience any cognizable injury because defendants
had fulfilled their obligations with respect to the plaintiff under the
FRAND contracts. Id. at 334-35.
5. 31 F.4th 1100 (9th Cir. 2022).
156 2022 Annual Review of Antitrust Law Development
of harassment and intimidation injured [plaintiffs’] ‘business, revenue,
goodwill, employee relations, and reputation in the marketplace.’”6
In Chandler v. Phoenix Services, LLC,7 the Fifth Circuit held that
plaintiffs failed to plead an injury-in-fact by alleging that a 2013 cease-
and-desist letter sent to Amerada Hess, plaintiff’s customer, “cost
[plaintiff] work with Hess and eventually drove [plaintiff] out of business
in 2016.”8 The court concluded that the plaintiff failed to allege any facts
to support that the cease-and-desist letter injured the plaintiff’s business
with Hess, noting that “[a]fter receiving the letter, Hess did not stop
working with [plaintiff], nor did Hess hire [defendant’s entity] or any of
[plaintiff’s] competitors who were licensed to use the ‘993 patent.”9
In Reveal Chat HoldCo LLC v. Meta Platforms, Inc.,10 the Ninth
Circuit similarly held that the plaintiff failed to plead an injury-in-fact by
alleging that it suffered injuries occuring in 2015 but challenged
defendant’s conduct in 2019.11
In Inform, Inc. v. Google, LLC,12 the Eleventh Circuit held that the
plaintiff sufficiently pleaded injury in fact by alleging that the defendant’s
“disabling of Flash on [its] platforms in 2017 had the ‘immediate efffect’
of decimating [plaintiff’s] business.”13
In Marion Diagnostic Center, LLC v. Becton Dickinson & Co.,14 the
Seventh Circuit held that plaintiffs failed to plead an injury-in-fact because
they failed to show that the alleged harm—higher prices for defendant’s
products—was “fairly traceable to [defendant’s] conduct.”15
6. Id. at 1117; accord SmileDirectClub, LLC v. Sulitzer, 31 F.4th 513, 519
(9th Cir. 2022).
7. 45 F.4th 807 (5th Cir. 2022).
8. Id. at 811, 815.
9. Id. at 815.
10. 2022 U.S. App. LEXIS 5233 (9th Cir. 2022).
11. Id. at *2-3.
12. 2022 U.S. App. Lexis 24107 (11th Cir. 2022).
13. Id. at *14 n.2; see also Host Int’l v. Marketplace, PHL, 2020 U.S. Dist.
LEXIS 145739, at *7-9 (E.D. Pa. 2020), judgmt. aff’d, 32 F.4th 242 (3d
Cir. 2022) (plaintiff “plead[ed] a plausible injury from refusing to agree to
a contract with pouring rights provisions, even though [plaintiff]
terminated contract negotiations” where plaintiff alleged it was excluded
from PHL and lost profits as a result).
15. Id. at 346.
Private Antitrust Suits 157
In Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods, LLC,16
the Ninth Circuit held that the direct purchaser plaintiff class adequately
demonstrated Article III standing at the class certification stage beause
“antitrust impact—i.e., that the Tuna Suppliers’ collusion had a common,
supra-competitive impact on a class-wide basis—[wa]s sufficient to show
an injury-in-fact traceable to the defendants and redressable by a favorable
ruling.”17
Antitrust Injury
In Pulse Network, LLC v. Visa, Inc.,18 the Fifth Circuit reversed and
remanded a district court’s order dismissing an antitrust action for lack of
antitrust standing. Noting that “[t]he antitrust laws were enacted for the
protection of competition, not competitors,”19 the court explained that,
“[a]t its most fundamental level, the antitrust injury requirement precludes
recovery for losses resulting from competition, even though such
competition was actually caused by conduct violating the antitrust laws.”20
Plaintiff Pulse alleged that defendant Visa had violated the antitrust laws
through three different policies. The court considered whether Plaintiff
had adequately pled antitrust injury resulting from each of the three
policies. With respect to the first policy, which caused customers to choose
Visa’s product over Pulse’s product and thereby ended Pulse’s exclusive
dealing arrangements with customers, the court found that “loss from
competition itself—that is, loss in the form of customers’ choosing the
competitor’s goods and services over the plaintiff’s—does not constiute
antitrust injury, even if the defendant is violating antitrust laws in order to
offer customers that choice.”21 The court found Pulse did sufficiently
allege antitrust injury resulting from a purportedly anticompetitive pricing
structure, where Pulse alleged Visa “abuses its dominance in the debit card
market” to “impose supra-competitive prices on merchants and
simultaneously undercut competitors’ per-transaction fees.”22 Similarly,
16. 31 F.4th 651 (9th Cir. 2022) (en banc), cert. denied (Nov. 14, 2022).
17. Id. at 681.
19. Id. at 488 (quoting ARCO, 495 U.S. at 338).
20. Id. (quoting 2A PHILIP E. AREEDA et al., ANTITRUST LAW § 337a, at
102 (4th ed. 2014)).
21. Id. at 489 (finding that it would be “inimical to the purposes of the antitrust
laws” to hold that injury resulting from a “rival’s mere presen ce in the
market” to constitute an antitrust injury).
22. Id. at 491-94.
To continue reading
Request your trial