Tagged: Rule 56

Second Circuit Reverses Award of Summary Judgment in Price-Fixing Action, Based on Clarification of Matsushita and Examination of Antitrust Causation 0

Second Circuit Reverses Award of Summary Judgment in Price-Fixing Action, Based on Clarification of Matsushita and Examination of Antitrust Causation

On August 6, 2012, ten days after the Third Circuit issued its opinion in Superior Offshore International, Inc. v. Bristow Group, Inc. — the subject of a prior blog entry — the Second Circuit decided In re Publication Paper Antitrust Litigation, which sheds additional light on the proof required to sustain a claim for horizontal price-fixing under Section 1 of the Sherman Act. Recognizing, but not relying on, the evidentiary distinction between direct and circumstantial evidence discussed in Superior Offshore International, the Court instead assessed the totality of the evidence to determine whether it supported a reasonable inference of an illegal agreement. Importantly, the Court made clear that although an antitrust plaintiff must point to record evidence giving rise to such an inference in order to defeat summary judgment, it need not also disprove the possibility of non-conspiratorial conduct. In addition, the Court held, a plaintiff must show that the illegal agreement was both a material and a but-for cause of the alleged price increase.

Third Circuit Sets High Bar for Proof of Price-Fixing, Affirms Dismissal on Summary Judgment Based on Twombly 0

Third Circuit Sets High Bar for Proof of Price-Fixing, Affirms Dismissal on Summary Judgment Based on Twombly

The Third Circuit’s July 27, 2012, opinion in Superior Offshore International, Inc. v. Bristow Group, Inc., confirms that an antitrust plaintiff relying on circumstantial evidence of price-fixing must demonstrate something more than merely parallel behavior, not only to survive a motion to dismiss, as the Supreme Court held in Bell Atlantic Corp. v. Twombly, but also to defeat summary judgment. Thus, unless a plaintiff can present record evidence that is plausibly suggestive of, and not just consistent with, an illegal agreement to fix prices, a defendant moving for summary judgment should prevail. Indeed, without evidence of a manifest agreement not to compete, Superior Offshore International (“SOI”) suggests that courts will not infer an illegal price-fixing arrangement even where participants in an oligopoly market raise prices despite a weakening of demand for their services.

Southern District of New York Implements Pilot Program to Govern Pretrial Procedures in Complex Civil Cases 0

Southern District of New York Implements Pilot Program to Govern Pretrial Procedures in Complex Civil Cases

The Judicial Improvements Committee of the Southern District of New York issued a report for a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project is designed to run for 18 months and apply to certain matters designated as complex civil cases. The “complex civil case” designation applies to class action lawsuits, multi-district litigation actions, stockholder suits, most product liability cases, antitrust suits, patent and trademark suits, securities cases, environmental matters and cases involving the constitutionality of state statutes. Although many Southern District of New York judges already had individual procedures in place similar to those implemented by the JIC, some of the more novel aspects of this pilot project are described below.