Why wasn’t Epic v. Apple a jury trial like Epic v. Google? | 11/1/24

Epic’s antitrust cases against each of Apple and Google resulted in arguably inconsistent outcomes.  In both, Epic challenged app-store commission fees and in-app payment requirements as anticompetitive.  After a bench trial in Epic v. Apple, the district court largely ruled against Epic on its core antitrust claims, finding that, even if Apple’s practices were anticompetitive, Epic had not successfully demonstrated a viable, less restrictive alternative to achieve the pro-competitive justifications for Apple’s practices (e.g., security justifications).  The Ninth Circuit affirmed.  But in Epic v. Google, a jury found Google’s similar restrictions to violate the antitrust laws.

It’s notable that only the Apple case was tried to a jury: Both of Epic’s cases against Apple and Google started as a preliminary injunction complaint for purely equitable relief (so no jury trial right attached).  Both Apple and Google responded by filing contract-based counterclaims for damages and requesting a jury trial on those.  But in the Apple case, Apple subsequently withdrew that jury trial request with Epic’s consent.  See Dkt. 105 (Case No. 4:20-cv-05640) (“Epic and Apple have met and conferred, and the parties agree that Epic’s claims and Apple’s counterclaims should be tried by the Court, and not by a jury.”).  Epic’s Google case, however, was initially set to be tried concurrently with Match Group’s similar case against Google that included a request for damages.  The damages request entitled Match to a jury, but Match settled its case with Google shortly before trial.  Google never withdrew its contract-based counterclaims or its request for a jury trial.  Nonetheless, in a statement to the court on the eve of jury selection, Google requested that its contract-based claims be tried to a jury first, followed by a bench trial on the antitrust claims.  See Dkt. 499 (Case No. 3:20-cv-05671). The court denied that request, leaving Epic able to successfully present its antitrust case to the jury largely due to happenstance.

Live Nation doesn’t like its venue | 7/25/24

The DOJ and various state AGs filed their antitrust case against Live Nation in SDNY, seeking to unwind  its merger with Ticketmaster.  Today, Live Nation moved to transfer the case to D.C., arguing that the initial merger of Live Nation and Ticketmaster is subject to a 2020 consent decree that “includes a mandatory forum selection clause designating the D.C. Court as the forum for legal actions.”  Additionally, it argues that the suit will generally be more conveniently litigated there.  But the consent decree doesn’t suggest venue is exclusively proper in DC (see Section XIV.), and it’s unclear if the current suit is a dispute over the application of the decree.  Plus, Live Nation and Ticketmaster are both headquartered in California (where most relevant witnesses and documents presumably are), so it’s tough to see why DC makes any more sense than NY (where the defendants have offices), and why Live Nation overlooks CA as a more convenient venue.

So why seek to transfer at all?  The judge overseeing the Live Nation case is Judge Arun Subramanian, a former plaintiff-side antitrust litigator coming from a law firm that has a history of bringing (and winning) major antitrust suits.  So it’s not a stretch to assume that Live Nation isn't anticipating a favorable reception from the young J. Subramanian as the case unfolds, and DC was where it has the best chance of getting a more sympathetic judge who oversaw the finalization of the consent decree. 

How “freely assignable” are antitrust claims? | 7/15/24

Can federal antitrust claims be assigned? Yes.  See John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394 (2d Cir. 2018).  Can the assignee of the claim substitute in for the assignor? Also yes.  See Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir.2007).  Will the assignee have standing to litigate?  That’s usually a yes too. See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 903 (9th Cir. 2005). 

But what if a litigation funder controls the assignee entity?  Seems that’s a no-go (or at least it’s not an abuse of discretion to deny the substitution request):

The Magistrate Judge exercised his discretion to deny the motions. He did not invalidate Sysco’s assignment of its claims to Carina, but denied the motions for substitution after reasoning that substitution would be contrary to the Federal Rules and public policy. (Magistrate Judge’s Order at 3, 14–15.) The Magistrate Judge was particularly concerned with the possibility that on the facts of this case, substitution would allow a litigation financer “with no interest in the litigation beyond maximizing profit on its investment to override decisions made by the party that actually brought suit.” (Id. at 3.) The Magistrate Judge concluded that Sysco and Burford’s assignment agreement and substitution request would allow Carina to stymie settlements for Burford’s gain, contravening public policy favoring party control over litigation and settlements. (Id. at 18–21.) Specifically, he wrote that “[t]he largest harm that condoning Burford’s efforts to maximize its return on investment would cause is the harm of forcing litigation to continue that should have settled.” (Id. at 17.)

See In re Pork Antitrust Litig., No. 18-cv-1776 (D. Minn. June 3, 2024).

It’s unclear why Sysco, as the assignor, still has standing to litigate a claim that it assigned away to Carina. 

Antitrust class action statistics | 2/2/24

Some interesting stats buried in a law and economics article on a normative critique of private antitrust class actions: 

  • The overwhelming bulk of federal antitrust suits (92%) are brought by private parties. 

  • Only 9% of private antirust suits are follow-on cases to government enforcement actions, i.e., the overwhelming majority of private antitrust action are for harms that the government mostly isn’t* addressing. 
    Average attorney contingency fee percentage is 25% (compared to the typical contingent fee percentage of 33% to 40% in individual litigation). 

  • Fees were about 38% for recoveries below $1.1 million and 12% of recoveries over $175 million.

Choi, Albert H. and Sprier, Kathryn E., "Class Actions and Private Antitrust Litigation" (2020). Law & Economics Working Papers. 180. https://repository.law.umich.edu/law_econ_current/180

The DOJ’s Merger Guidelines | 12/18/23

Here is each guideline from the DOJ’s recently finalized (and highly anticipated) Final 2023 Merger Guidelines: 

  • Guideline 1: Mergers Raise a Presumption of Illegality When They Significantly Increase Concentration in a Highly Concentrated Market.

  • Guideline 2: Mergers Can Violate the Law When They Eliminate Substantial Competition Between Firms.

  • Guideline 3: Mergers Can Violate the Law When They Increase the Risk of Coordination.

  • Guideline 4: Mergers Can Violate the Law When They Eliminate a Potential Entrant in a Concentrated Market.

  • Guideline 5: Mergers Can Violate the Law When They Create a Firm That May Limit Access to Products or Services That Its Rivals Use to Compete.

  • Guideline 6: Mergers Can Violate the Law When They Entrench or Extend a Dominant Position.

  • Guideline 7: When an Industry Undergoes a Trend Toward Consolidation, the Agencies Consider Whether It Increases the Risk a Merger May Substantially Lessen Competition or Tend to Create a Monopoly.

  • Guideline 8: When a Merger is Part of a Series of Multiple Acquisitions, the Agencies May Examine the Whole Series.

  • Guideline 9: When a Merger Involves a Multi-Sided Platform, the Agencies Examine Competition Between Platforms, on a Platform, or to Displace a Platform.

  • Guideline 10: When a Merger Involves Competing Buyers, the Agencies Examine Whether It May Substantially Lessen Competition for Workers, Creators, Suppliers, or Other Providers.

  • Guideline 11: When an Acquisition Involves Partial Ownership or Minority Interests, the Agencies Examine Its Impact on Competition.