ANTITRUST LAW

In re Automotive Parts Antitrust Litigation
MDL 2311 (E.D. Mich.).

SRK has been appointed Interim Co-Lead Counsel for Direct Purchaser Plaintiffs for all product cases filed in In re Automotive Parts Antitrust Litigation (MDL. No. 2311). These massive price-fixing class actions are being brought on behalf of direct purchasers who were overcharged for various kinds of automotive parts, including wire harness products, heater control panels, instrument panel clusters, fuel senders, occupant safety restraint system products, bearings, air conditioning systems, starters, windshield wiper systems and windshield washer systems. All cases are pending before Judge Marianne Battani in the United States District Court for the Eastern District of Michigan in Detroit. SRK and its Interim Co-Lead Counsel on behalf of the Direct Purchaser Plaintiffs have defeated motions to dismiss filed to date in all product cases.

Direct Purchaser Plaintiffs have reached settlements with three defendants totaling approximately $50 million.

The U.S. Department of Justice, the Japan Fair Trade Commission and the European Commission continue to investigate the Automotive Parts industry, and criminal fines levied total $2.4 billion to date, with thirty-two companies and twenty-nine executives having pleaded guilty or having agreed to plead guilty in the United States. A Department of Justice spokesperson recently told the Automotive News that “[i]n terms of the breadth of the investigation and the scope of the commerce involved, there’s certainly nothing on the record that parallels this.” As Judge Battani stated in her April 30, 2014 Order and Opinion denying the defendants’ motion to dismiss in the fuel senders case, “In re: Automotive Parts Antitrust Litigation arises out of the largest investigation into antitrust violations ever undertaken by the Department of Justice. The number of guilty pleas that have been entered in this multi-district litigation suggest the anticompetitive conduct was business as usual, not the work of a rogue employee.”

In re OSB Antitrust Litigation
Case No. 06-826 (E.D. Pa.)

SRK was Lead Counsel for a certified class of purchasers of oriented strand board (“OSB”), which is a structural panel used in the construction of residential houses, specifically for floors, roofs and walls. SRK alleged that the defendants, nine billion-dollar OSB manufacturers, violated federal antitrust law by conspiring to reduce the supply of OSB in the market, in order to raise and fix OSB prices. In August 2007, U.S. District Court Judge Paul Diamond (E.D. Pa.) certified the class and denied defendants’ motions to dismiss for the second time; our complaint was one of the first in the nation to survive a challenge under U.S. v. Twombly. On the eve of trial, SRK settled the case on behalf of the class for more than $120 million.

In re Linerboard Antitrust Litigation
MDL 1261 (E.D. Pa.)

SRK served as Co-Lead Counsel for a certified class of purchasers of corrugated sheets, which are used to make cardboard boxes. SRK alleged that the defendants, all billion-dollar linerboard manufacturers, violated federal antitrust law by conspiring to reduce the supply of linerboard in the market, in order to raise and fix the prices of corrugated sheets and boxes, which are made from linerboard. U.S. District Court Judge Jan DuBois (E.D. Pa.) certified the class and the Third Circuit affirmed that decision in a landmark opinion. The case settled for $202 million — the largest-ever antitrust settlement in the Third Circuit.

In re Flat Glass Antitrust Litigation
MDL 1200 (W.D. Pa.)

SRK served as Co-Lead Counsel for a certified class of purchasers of flat glass products, primarily used in the manufacture of automobiles. SRK alleged that the defendants, all billion-dollar flat glass manufacturers, violated federal antitrust law by conspiring to raise and fix the prices of flat glass products. U.S. District Judge Ziegler (W.D. Pa.) certified the class. The Third Circuit later overruled the District Court, which had ruled in defendants’ favor on summary judgment, in a landmark opinion. The case settled on the eve of trial with the last defendant for a total of $120 million.

American Federation of State, County and Municipal Employees v. GlaxoSmithkline (“Augumentin”)
No. 2-cv-442 (E.D. Va.)

SRK represented consumers in a class action concerning the brand-name drug Augmentin, an oral antibacterial drug manufactured by GlaxoSmithKline (“GSK”) that accounts for $2 billion in sales per year. In essence, plaintiffs alleged that GSK sought to prevent competition from generic versions of Augmentin by attempting to improperly obtain new patents on the drug and thereby extend the life of the older, valid patents. In 2004, the case settled as to all purchasers for $29 million.

In re DRAM Antitrust Litigation

SRK filed a class action lawsuit against all major manufacturers of “dynamic random access memory” (“DRAM”), alleging that defendants conspired to fix the prices they charged for DRAM in the United States and throughout the world. The Defendants collectively control over 70% of the market. In the fall of 2001, Defendants reacted to low chip prices on the open market by agreeing to reduce supply in order to artificially raise prices. As part of their secret agreement, each defendant cut production by approximately 20%. Starting in December 2001 prices for DRAM rose dramatically. In 2002, the U.S. Department of Justice launched a criminal investigation of the conspiracy to fix prices. In 2007, the direct purchaser case settled for more than $325 million.

In re Mercedes Benz Antitrust Litigation
Master File No. 99-4311 (D. N.J.)

This action is brought as a class action on behalf of individuals and entities who purchased or leased new Mercedes-Benz automobiles directly from Mercedes-Benz, U.S.A. (“MBUSA”), or from one of the authorized dealers in MBUSA’s “New York Region,” during the period February 1992 through at least August 30, 1999. The complaint alleges that MBUSA participated in a conspiracy to raise and fix the price of new automobiles sold or leased in its New York Region. Defendants exchanged and discussed highly confidential, non-public information concerning historical and anticipated future pricing actions, in order to limit price competition and discounting.

This class action was brought on behalf of purchasors and lessees of new Mercedes-Benz vehicles in the Mercedes-Benz, U.S.A. (“MBUSA”) “New York Region,” during the period February 1992 through at least August 30, 1999. The class alleged that MBUSA and its dealers conspired to fix the prices of new vehicles sold or leased in its New York Region. Defendants exchanged and discussed highly confidential, non-public pricing information in order to limit price competition and discounting. The case settled for a total of $17.5 million.

In re Neurontin Antitrust Litigation
MDL No. 1479 (D. N.J.)

SRK filed a class action on behalf of a union health and welfare fund, alleging violations of federal antitrust law, state antitrust and consumer protection acts, and state common law arising from the marketing of the brand-named prescription drug Neurontin, a widely prescribed anti-convulsant. The complaint alleges that defendants listed certain patents with the Food and Drug Administration for the sole purpose of preventing generic competition. Defendants further filed sham patent infringement lawsuits against generic competitors, when defendants knew the generic formulations of Neurontin did not infringe any patent owned by defendants.

The Judicial Panel on Multidistrict Litigation sent approximately 22 cases to the District of New Jersey. The case has been stayed while defendants pursue an appeal of the underlying patent infringement action that they lost. SRK is on the Executive Committee for the indirect purchasers’ group.

Stop & Shop Supermarket Co. v. SmithKline Beecham Corp. (“Paxil”)
C.A. No. 03-4578 (E.D. Pa. 2004)

SRK filed suit in the United States District Court for the Eastern District of Pennsylvania as co-counsel for direct purchasers of the drug Paxil, alleging that the manufacturer used baseless lawsuits to prevent competition from manufacturers of generic versions of Paxil, an anti-depressant drug. The direct purchaser case settled for $100 million, and the end-payor case settled for $65 million.

J.B.D.L. Corp. d/b/a Beckett Apothecary v. Wyeth- Ayerst Laboratories, Inc. (Premarin)
C.A. No. 01-cv-704 (S.D. Ohio)

SRK represents a direct purchaser in a class action alleging antitrust violations over marketing of the drug Premarin, a brand-named drug used to alleviate symptoms of menopause. The complaint alleges that Wyeth used its monopoly power to control the formularies of pharmaceutical benefits managers and other large health care providers and prevent usage of the competitor drug Cenestin, marketed by Duramed Pharmaceuticals. On May 12, 2003, the court certified a nationwide class of direct purchasers. Discovery on the merits concluded, and trial was scheduled for August 2005. On June 13, 2005, the court granted summary judgment for the defendant and dismissed the case. Plaintiffs are preparing an appeal. SRK is co-lead counsel for the direct purchasers.

In re Relafen Antitrust Litigation
C.A. No. 01-12239 (D. Mass.)

SRK represented union benefit funds in a nationwide class action against GlaxoSmithKline alleging the misuse of patent infringement litigation to prevent competition from generic versions of Relafen, a non steroidal anti inflammatory drug. The class alleged that the defendant misrepresented information to the U.S. patent office in order to obtain the initial patent, and then engaged in sham litigation to falsely claim patent infringement and thus prevent competition from generic versions of the drug.

All cases were coordinated in the District of Massachusetts. The End-payor case settled for $75 million. SRK was co-lead counsel for the indirect purchasers.

In re Blood Reagents Antitrust Litigation
MDL No. 09-2081 (E.D. Pa.)

SRK is currently serving as sole Interim Lead Class Counsel in In re Blood Reagents Antitrust Litigation, MDL 09-2081 (E.D. Pa.), a nation-wide class action alleging price-fixing in the market for blood reagents, which are used for typing and screening blood. In August 2010, Judge Jan DuBois denied defendants’ motion to dismiss the consolidated amended complaint and in December 2010, he again denied defendants’ motion for reconsideration of that decision. SRK filed a detailed motion for class certification on behalf of a proposed class of direct purchasers of blood reagents, featuring over 140 exhibits, in September 2011, and class certification proceedings are presently ongoing.

On January 11, 2012, SRK and defendant Immucor, Inc. entered into a settlement agreement which, subject to preliminary and final approval by the Court, requires Immucor to pay $22 million and to provide substantial cooperation in plaintiffs’ continuing litigation against defendant Ortho-Clinical Diagnostics, Inc.

Vista Health Plan, Inc. v. Cephalon, Inc.
C.A. No. 06-1833 (E.D. Pa.)

SRK is currently co-lead counsel for the end-payor class of purchasers of the drug Provigil in Vista HealthPlan, Inc. v. Cephalon, Inc., C.A. No. 06-1833 (E.D. Pa.). Plaintiffs allege that Cephalon conspired with four generic drug manufacturers to prevent competition by low-cost generic versions of Provigil in exchange for some $300 million in payments. In March 2010, Judge Goldberg denied the defendants’ motions to dismiss. Discovery has ended and a trial is tentatively scheduled for early 2012.

In re Online DVD Rental Antitrust Litigation
MDL No. 2029 (N.D. Cal.)

SRK is currently serving on the Plaintiffs’ Steering Committee in In re Online DVD Rental Antitrust Litigation, MDL No. 2029 (N.D. Cal.). Plaintiffs allege that Defendants Netflix and Wal-Mart entered into an illegal anti-competitive agreement to divide the markets for sales and online rentals of DVDs in the United States, with the purpose and effect of monopolizing and unreasonably restraining trade, in at least the Online DVD Rental Market. Plaintiffs alleged that the Market Allocation Agreement caused Netflix subscribers to pay higher subscription prices. In December 2010, Judge Hamilton certified a class of Netflix subscribers and later denied Defendant Netflix’s motion to decertify the class.

Baby Products Antitrust Litigation
McDonough, et al. v. Toys “R” Us, Inc. d/b/a Babies “R” Us, et al., C.A. No. 06-242 (E.D. Pa.);
Elliott, et al. v. Toys “R” Us, Inc. d/b/a Babies “R” Us, et al., C.A. No. 09-6151 (E.D. Pa.)

SRK is co-lead counsel on behalf of two groups of consumers who sued Toys “R” Us, Inc. doing business as Babies “R” Us, Babies “R” Us, Inc., Toys “R” Us-Delaware, Inc. (collectively referred to as “Babies “R” Us”) and the manufacturers of certain baby products which were sold at Babies “R” Us stores. Plaintiffs allege that Babies “R” Us conspired with each of these manufacturers to implement and enforce resale price maintenance (“RPM”) policies that would prevent competitors of Babies “R” Us from discounting those baby products. The McDonough case was one of the first vertical RPM cases to be litigated after Leegin Creative Leather Products Inc. v. PSKS Inc., in which the United States Supreme Court changed the standard of review for vertical RPM from per se to “rule of reason.” In July 2009, U.S. District Court Judge Anita Brody (E.D. Pa.) certified five consumer subclasses in the McDonough litigation. These subclasses were among the first to be certified after the Third Circuit’s decision in In re Hydrogen Peroxide, and were among the first to be certified in a vertical RPM case.

In January 2011, SRK and the defendants agreed on a settlement of over $35 million, which is pending final approval by the Court.