A federal judge in Virginia has granted summary judgment to E.I. DuPont De Nemours and Co. on Kolon Industries’ antitrust claims against DuPont.

This marks the second loss to Kolon in the complex legal battle of Kolon Industries v. E.I. du Pont de Nemours, in the U.S. District Court for the Eastern District of Virginia.

The battle began when DuPont filed a suit against Kolon alleging that it stole highly confidential trade secrets relating to one of DuPont’s synthetic fibers.  Kolon fired back with a counterclaim alleging that DuPont had monopolized or attempted to monopolize the market for para-aramid synthetic fibers used in body armor. 

The cases were split and on September 14, 2011, DuPont won its trade secrets case.  The jury awarded nearly $920 million dollars in damages.

DuPont also filed a motion for injunctive relief asking that the court require Kolon to stop making or selling products using the allegedly stolen technology.  That motion, along with requests for sanctions and attorney’s fees, is still pending.

In the meantime, Kolon lost its second battle when U.S. District Judge Robert E. Payne dismissed its antitrust case with prejudice. 

Judge Payne held that DuPont did not monopolize or attempt to monopolize the market, and that there was no evidence that DuPont had foreclosed the market to Kolon.  Judge Payne found that, to the contrary, DuPont was actually unable to prevent “the rise of one of its major competitors.”

Commercial fishing vessel owners and fishermen have settled a $520 million claim for damages against Pacific Seafood Group just two months after Judge Owen M. Panner of the U.S. District Court for the District of Oregon granted class certification in Whaley et al. v. Pacific Seafood Group et al.

Plaintiffs alleged that the defendants, Pacific Seafood Group and Ocean Gold Seafoods, Inc., fixed prices in buying fish, harming fishermen and consumers.  Plaintiffs also alleged that Pacific Seafood, the largest seafood-buying company in the United States, either monopolized or attempted to monopolize west coast markets for Pacific seafood.

The settlement agreement does not require any damages to be paid or for Pacific Seafood to break up the company.  Instead, Pacific Seafood has agreed to adopt a series of procompetitive measures designed to increase transparency, fairness, and, most of all, competition in the seafood markets.  This series of procompetitive measures includes Pacific Seafood’s promise to end its relationship with co-defendant Ocean Gold Seafoods in 2016.

Although nothing in the settlement agreement would prevent Pacific Seafood Group from entering a new contract with Ocean Gold, the settlement requires approval of any such contract by U.S. District Judge Michael Hogan, who mediated the settlement.   The settlement agreement will be effective for five years, at which point the plaintiffs may petition Judge Hogan for a five-year extension.

In a press release, Judge Hogan commented, “this case could have gone on for years, including appeals.  The fishermen and the processors, especially Pacific Seafood Group, are to be commended for taking a statesmanlike approach to resolving this complicated case.”

Attorneys for the plaintiff are expected to collect $2.9 million in fees and expenses to be paid by Pacific Seafood’s insurer.

A California state appellate court has upheld the denial of class certification in a case brought by consumers alleging that Fresh Del Monte Produce Inc. monopolized the extra-sweet pineapple market in violation of California Unfair Competition Law.

Del Monte was accused in Conroy v. Fresh Del Monte Produce Inc. of attempting to obtain a patent for extra-sweet pineapple – despite knowing that pineapple variety was unpatentable – and then using sham patent litigation to foreclose competition and to charge supracompetitive prices. 

The California Court of Appeal for the First District held that the indirect purchaser class of plaintiffs failed to show that the trial court improperly denied class certification when it decided that substantial individual questions needed to be resolved to establish injury to class members.  Even if liability could have been established, the trial court held that plaintiffs did not meet their burden of showing how members of the class could be notified to participate in any kind of cost effective claims process. 

In 2004, a complaint with similar allegations was filed in federal court in the Southern District of New York on behalf of direct and indirect purchasers.  In 2008, the federal court certified a class of direct purchasers but refused to certify an indirect purchaser class because of issues with manageability. 

In 2009, the plaintiffs in the California action moved for class certification.  The trial court adopted portions of the Southern District’s decision and denied the motion. 

The California appellate court affirmed the trial court’s decision and held that it had acted within its discretion by finding that plaintiffs’ evidence did not overcome the manageability issued identified by the Southern District.

Judge Ryan Zobel of the U.S. District Court for the District of Massachusetts has denied the motion to dismiss filed in the consolidated class action of In re Prograf Antitrust Litigation by the defendant, organ transplant drug manufacturer Astellas Pharma US, Inc.

Plaintiffs are direct purchasers of Prograf – a brand-name immunosuppressant drug that fights organ rejection following heart, kidney and liver transplants – who allege that its manufacturer, Astellas, violated the antitrust laws by filing a citizen petition with the Food and Drug Administration (“FDA”) that was designed to stave off competition and prolong the drug’s monopoly.  The court’s denial of Astellas’ motion to dismiss means that the direct purchasers’ monopolization claims under Section 2 of the Sherman Antitrust Act will proceed

The plaintiffs claim that Astellas recognized that generic manufacturers would seek FDA approval to sell competing drugs and that Astellas’ citizen petition was “objectively baseless,” and used “to stall the approval of generic manufacturers’ Abreviated (sic) New Drug Applications.” 

In addition to filing a citizen petition with the FDA, Astellas unsuccessfully moved in the District Court for the District of Columbia in August 2009 for a temporary restraining order and preliminary injunction to prevent the FDA from approving generic competing drugs.  Astellas’ motion for injunctive relief was denied by Judge Urbina on August 12, 2009.  Astellas voluntarily dismissed that matter in November 2009. 

Plaintiffs allege that Astellas’ administrative and legal actions “unlawfully continued a monopoly in the market … for up to two years, selling well over a billion dollars of Prograf during that time.” 

Astellas moved to dismiss the class action complaint, arguing primarily that the citizen petition was protected by the Noerr-Pennington doctrine granting immunity to legitimate petitioning activity.  The plaintiffs argued that Noerr-Pennington immunity is inapplicable since the petition “was an objectively baseless ‘sham.’” 

Judge Zobel relied on Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49, 61 (1993), for its two-pronged test to determine whether a plaintiff survives a motion to dismiss on Noerr-Pennington grounds by availing itself of the “sham” exception: whether “(1) defendant’s petitioning activity was ‘objectively baseless’ in the sense that no reasonable petitioner before the agency ‘could realistically expect success on the merits;’ and [whether] (2) … the baseless petitioning ‘concealed an attempt to interfere directly with the business relationship of a competitor through the use of the governmental process … as an anti-competitive weapon.’” 

With respect to the first prong, the judge held that the class plaintiffs properly alleged that the petitioning activity was objectively baseless since, among other things, plaintiffs alleged that (1) “the FDA found no merit to defendant’s petition,” and (2) “the materials provided by defendant failed to support its requested relief and, in particular, … the studies cited contained severe flaws in their methodology and design and reliance thereon was wholly unreasonable.”  The judge likewise found the second prong satisfied because, among other reasons, plaintiffs alleged that “Prograf sales were $929 million for 2009, giving Astellas an incredibly strong financial incentive to extend its position as the sole … provider” and “Astellas’ citizen petition had the actual effect of delaying generic entry.”

The FTC has approved the final order resolving claims that Pool Corporation, Inc. (“PoolCorp”) acted anticompetitively in violation of Section 5 of the Federal Trade Commission Act. 

PoolCorp is a major distributor of commercial and residential swimming pool supplies, products, and equipment.  According to the FTC complaint in In the Matter of Pool Corporation, PoolCorp is the “largest nationwide buyer of pool products, commonly representing 30 to 50 percent of a manufacturer’s total sales.”  In local markets, PoolCorp allegedly has had “a market share of approximately 80 percent or higher for at least the past five years.”    

The FTC alleged that PoolCorp “unlawfully maintained its monopoly power by threatening to refuse to deal with any manufacturer that sells its pool products to a new distributor entering the market, thereby foreclosing potential rivals from an input necessary to compete.”  The Statement provided by Commissioners Julie Brill, Jon Leibowitz and Edith Ramirez in support of the Complaint and Order highlights a lack of independent business reasons or efficiency justifications for the alleged conduct. 

Commissioner J. Thomas Rosch provided a Dissenting Statement in which he claimed there was a lack of evidence of any violation.  In particular, Commissioner Rosch noted that “no entrants were actually excluded” from the markets at issue and that there was “no consumer injury” in this case.  Moreover, Commissioner Rosch found “legitimate reasons” for manufacturers not to sell to new entrants, such as a new entrant’s failure to demonstrate that it offers “adequate facilities, a history of successful operations, and a favorable credit history ….” 

PoolCorp has executed a Consent Agreement requiring particular conduct and reporting practices.