Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Baker Botts LLP

As vertical issues continue to attract attention in the world of antitrust, the U.S. Supreme Court’s decision in Ohio v. American Express was a long-awaited milestone.  The outcome of the decision was not surprising—many commenters had predicted that a Court that has generally been skeptical of antitrust plaintiffs would uphold the U.S Court of Appeals for the Second Circuit’s decision in favor of American Express—but a few features of the decision were noteworthy.

Recall that the case involved Amex’s use of non-discriminatory provisions, or “NDPs,” that prevent a merchant that accepts Amex cards from engaging in strategic behavior to steer customers toward use of a different payment card that might carry a lower transaction fee for the merchant. At issue was whether the NDPs constituted unreasonable restraints that suppressed interbrand competition by preventing merchants from favoring lower-cost payment methods by customers. Continue reading “Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling”

Oklahoma High Court Rejects “Stream of Commerce” Doctrine as Basis for Specific Jurisdiction

Isaac-05115Guest Commentary

By Gary Isaac, Counsel in Mayer Brown LLP’s Litigation department. He has extensive experience litigating personal jurisdiction issues.

In the past several years, the U.S. Supreme Court has issued several decisions significantly limiting the assertion of personal jurisdiction over nonresident defendants.1 However, it has been left to the lower state and federal courts to apply the principles delineated by the Supreme Court. One recent personal jurisdiction decision of note is Montgomery v. Airbus Helicopters, Inc., 414 P.3d 824 (Okl. 2018), which concluded that in the wake of Walden and Bristol-Myers Squibb (“BMS”), the “stream of commerce” doctrine is no longer a viable basis for specific jurisdiction. Continue reading “Oklahoma High Court Rejects “Stream of Commerce” Doctrine as Basis for Specific Jurisdiction”

Demands for On-Label Disclosure of Possible Supply-Chain Abuses Fail in Ninth Circuit

GLFoodCourtA little over two years ago on this site, we discussed a new strain of food-labeling class action lawsuits quite unlike the run-of-the-mill “Food Court” litigation. Instead of complaining that consumers had been misled by a food label’s use of a term such as “natural,” these suits claimed harm from a company’s failure to disclose possible human-rights abuses in its supply chain. Products such as animal food and processed chocolate, which include ingredients from foreign locations where forced child labor is prevalent, have been popular targets.

As we noted in the 2016 post, these supply-chain suits found far less success in California federal district courts than have other food-labeling claims. Undeterred by the losses, the plaintiffs’ lawyers appealed to the U.S. Court of Appeals for the Ninth Circuit, forcing the victorious defendants to invest millions more in attorneys’ fees. In a series of opinions issued over the past two months, the appeals court has uniformly affirmed the suits’ dismissals. Continue reading “Demands for On-Label Disclosure of Possible Supply-Chain Abuses Fail in Ninth Circuit”

‘Merck, Sharpe & Dohme v. Albrecht’: The Supreme Court’s Chance to Re-Open a Preemption Door the Third Circuit Tried to Close Forever

Joe_Hollingsworth_thumbnail 1Featured Expert Contributor, Litigation Strategies

By Joe G. Hollingsworth, Partner, Hollingsworth LLP, with Stephen A. Klein, Partner, Hollingsworth LLP

*Ed. Note: This is Mr. Hollingsworth’s inaugural post as the WLF Legal Pulse’s newest Featured Expert Contributor. He is a nationally renowned courtroom advocate who specializes in trials and appeals and leads a practice group of seventy-five attorneys. 

No one ever said preemption should be easy.  But then there’s the U.S. Court of Appeals for the Third Circuit’s preemption decision last year in Merck, Sharpe & Dohme v. Albrecht, 852 F.3d 268 (3d Cir. 2017).  Continue reading “‘Merck, Sharpe & Dohme v. Albrecht’: The Supreme Court’s Chance to Re-Open a Preemption Door the Third Circuit Tried to Close Forever”

Europe’s Antitrust Demagogues Shake Down Google

thumbnail_imageToday the European Union imposed a $5 billion fine on Alphabet Inc., owner of Google, for antitrust violations. The punishment illustrates the power of that most abiding of monopolists, government, to extract rents and impose deadweight losses.

The EU’s core theory is that Google improperly pressures smartphone manufacturers to bundle Google apps with Android, Google’s free smartphone operating system. Continue reading “Europe’s Antitrust Demagogues Shake Down Google”

‘In re Lipitor’: Fourth Circuit Smacks Down Result-Oriented Expert Testimony

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

By Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

Although often couched in gentile terms, the real concern underlying both Daubert’s core requirement of reliability and the gatekeeping role of district courts more generally is that all too often expert witnesses see their role as hired guns, offering—for a price—whatever opinions are necessary in order for their clients to prevail.  The U.S. Court of Appeals for the Fourth Circuit recently issued an extensive decision politely but firmly renouncing such testimony.

In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability Litigation arose out of multi-district litigation in which the plaintiffs alleged that the cholesterol-lowering drug Lipitor caused them to develop diabetes.  After excluding or sharply limiting the testimony of the bellwether plaintiffs’ expert witnesses, the district court granted summary judgment in favor of the defendant, Pfizer, Inc., on the ground that the plaintiffs lacked sufficient evidence of causation.  Continue reading “‘In re Lipitor’: Fourth Circuit Smacks Down Result-Oriented Expert Testimony”

The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech

supreme court

The U.S. Supreme Court last week issued its long-awaited opinion in National Institute of Family and Life Advocates v. Becerra. In a 5-4 decision authored by Justice Clarence Thomas, the Court held that a California law requiring licensed pro-life counselling clinics to direct their clients to abortion providers  likely violated the clinics’ free speech rights under the First Amendment. Like the famous dog that didn’t bark in the night,[*] however, Justice Thomas’s majority opinion in NIFLA is far more revealing for what it doesn’t say than for what it does say. Continue reading “The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech”