SAN DIEGO - A California federal judge on April 30 allowed plaintiffs in a vitamin class action to conduct discovery into defendant Bayer Corp.'s profits and expenses to possibly determine "restitutionary disgorgement" of profits (David Johns, et al. v. Bayer Corporation, et al., No. 3:09-cv-1935, S.D. Calif.; 2012 U.S. Dist. LEXIS 60121).
CHICAGO - An Illinois federal judge cannot enjoin a California unfair competition law (UCL) class action involving advertising of stainless steel drums in dryers under the All Writs Act, the Seventh Circuit U.S. Court of Appeals held May 1 (Steven J. Thorogood, et al. v. Sears, Roebuck and Co., Nos. 10-2407, 11-2133, 7th Cir.).
SAN DIEGO - California false advertising law (FAL) claims seeking restitution from Apple Inc. for a software update that allegedly rendered past versions of iPhones unusable may continue, a federal judge held April 25 (Bianca Wofford and Suzann Lennox, et al. v. Apple Inc., and DOES 1 through 100, inclusive, No. 11-0034, S.D. Calif.; 2012 U.S. Dist. LEXIS 58006).
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on April 27 denied a petition for permission to appeal a district court's order decertifying a class of iPhone purchasers in their antitrust claims against Apple Inc. and AT&T Mobility Inc. (ATTM) and granting motions to compel arbitration filed by Apple and AT&T (Paul Holman, et al. v. Apple, Inc., et al., No. 12-80012, 9th Cir.). Subscribers may view the order available within the full update.
PITTSBURGH - A federal judge in Pennsylvania on April 25 ruled that pharmacies and pharmacy trade groups challenging the consummated $29 billion merger of pharmaceutical benefit management companies Express Scripts Inc. (ESI) and Medco Health Solutions Inc. were not entitled to a preliminary injunction because they failed to establish the likelihood of immediate, irreparable harm that could be alleviated by the issuance of a preliminary injunction (National Association of Chain Drug Stores, et al. v. Express Scripts, Inc., et al., No. 2:12-cv-00395-CB, W.D. Pa.; 2012 U.S. Dist. LEXIS 57884).
PHILADELPHIA - Indirect purchasers' Sherman Act conspiracy claims against several egg producers were dismissed without prejudice because the purchasers' allegations did not directly connect the producers to a price-fixing conspiracy, but federal conspiracy claims against other producers and state antitrust, consumer protection and unjust enrichment claims can continue, the federal judge in Pennsylvania who is overseeing the multidistrict litigation ruled April 24 (In re: Processed Egg Products Antitrust Litigation (All Indirect Purchaser Plaintiff Actions), MDL No. 2002, No. 08-md-02002, E.D. Pa.; 2012 U.S. Dist. LEXIS 57846).
KANSAS CITY, Kan. - The judge supervising multidistrict litigation over automatic temperature compensation (ATC) in motor fuel sales has approved a settlement whereby Costco Wholesale Corp. agrees to install ATC on fuel pumps in states where it buys temperature-adjusted fuel (In re Motor Fuel Temperature Sales Practices Litigation, MDL No. 1840, No. 2:07-md-1840 KHV, D. Kansas; 2012 U.S. Dist. LEXIS 56927).
SANTA ANA, Calif. - A California federal judge on April 24 remanded a class complaint accusing a pharmacy chain of selling a product marketed as honey in its California stores that failed to meet the state's requirements to be sold as honey (Meryl Overton v. CVS Caremark Corporation, et al., No. 12-121, C.D. Calif.; 2012 U.S. Dist. LEXIS 57537).
ATLANTA - Reverse payment settlements between the holder of a drug patent and generic manufacturers of the drug did not constitute an unfair restraint on trade in violation of Section 5(a) of the Federal Trade Commission Act 15 U.S.C.S. §45, the 11th Circuit U.S. Court of Appeals ruled April 25 in affirming the dismissal of the Federal Trade Commission's antitrust lawsuit (Federal Trade Commission v. Watson Pharmaceuticals, Inc., et al., No. 10-12729, 11th Cir.; 2012 U.S. App. LEXIS 8377).
LOS ANGELES - Most intellectual property and unfair competition claims were dismissed April 24 in California federal court in a family feud involving the developer of a popular line of folding bicycles and his wife and son (Dahon North America, Inc. v. Joshua Hon, et al., No. 2:11-cv-05835, C.D. Calif.; 2012 U.S. Dist. LEXIS 57510).
OAKLAND, Calif. - PNY Technologies Inc. failed to sufficiently allege that SanDisk Corp. misused the market power inherent in its patent portfolio in the flash memory technology upstream market to demand multitiered licensing and royalties in the downstream markets, a federal judge in California ruled April 20 in dismissing PNY's antitrust complaint (PNY Technologies, Inc. v. SanDisk Corporation, No. C-11-04689, N.D. Calif.; 2012 U.S. Dist. LEXIS 55965).
SAN JOSE, Calif. - Employees of seven high-tech companies with principal places of business in the San Francisco-Silicon Valley may continue with their allegations that the defendants, including Apple Inc., conspired to fix and suppress employee compensation and to restrict employee mobility by entering into identical bilateral "Do Not Cold Call" agreements, a federal judge in California ruled April 18 (In re: High-Tech Employee Antitrust Litigation, No. 11-CV-02509-LHK, N.D. Calif.; 2012 U.S. Dist. LEXIS 55302).
PHILADELPHIA - A federal district court judge properly granted summary judgment to a hospital, its director of radiology and two radiologist physician groups on a radiologist's claims that an exclusive contract between the hospital and a physician group violated state and federal antitrust laws, the Third Circuit U.S. Court of Appeals affirmed April 17 in an unpublished opinion (George G. Bocobo, M.D., v. Radiology Consultants of South Jersey, P.A., et al., No. 07-3142, 3rd Cir.; 2012 U.S. App. LEXIS 7642).
ATLANTA - The 11th Circuit U.S. Court of Appeals on April 16 agreed to rehear en banc its ruling that hedge funds that purchased promissory notes from CompuCredit Holdings Corp. did not violate federal antitrust law by making a collective demand on CompuCredit to pay above-market prices to redeem its notes early (CompuCredit Holdings Corporation v. Akanthos Capital Management, LLC, et al., No. 11-13254, 11th Cir.).
PHILADELPHIA - Approximately 2 million nonbasic cable television customers in the Philadelphia market may proceed to trial against Comcast on the class's Sherman Act Section 1 rule-of-reason claim and certain of its Section 2 monopolization and attempted monopolization claims related to the company's swap agreements, a federal judge in Pennsylvania ruled April 12 (Caroline Behrend, et al. v. Comcast Corporation, et al., No. 03-6604, E.D. Pa.; 2012 U.S. Dist. LEXIS 51889).
SAN FRANCISCO - Health claims used in the marketing of nutrition bars constitute puffery, except to the extent that they allege the inclusion of more specific "healthy fats," a California federal judge held April 11 in partially denying a motion for summary judgment (Claire Delacruz, et al. v. Cytosport Inc., No. 11-3532, N.D. Calif.). Subscribers may view the opinion available within the full update.
PHILADELPHIA - A Pennsylvania federal judge has denied an injunction based on infringement claims brought by a national seller of frozen sandwich steak and hamburger products against a South Philadelphia pizza shop and corner grocery, saying in an April 11 opinion that the plaintiff had presented no evidence of brand confusion (The Steak Umm Company v. Steak 'Em Up, No. 5:09-cv-2857 E.D. Pa.; 2012 U.S. Dist. LEXIS 51549).
PHILADELPHIA - Saying the plaintiff failed to marshal sufficient facts to support her consumer fraud claims, a Pennsylvania federal judge dismissed a putative class action over flaming box fans on April 10, but granted the plaintiff leave to refile (Deborah Osness, individually and on behalf of all others similarly situated, v. Lasko Products Inc., No. 11-3846, E.D. Pa.; 2012 U.S. Dist. LEXIS 504200).
SANTA BARBARA, Calif. - A California jury on April 6 rejected an orthopedic surgeon's claims that a hospital, the hospital's trauma director and four of the hospital's on-call neurosurgeons conspired to keep him from joining the hospital's on-call panel in violation of California's antitrust law (Alan Moelleken, M.D., et al. v. Cottage Health System, et al., No. 1339785, Calif. Super., Santa Barbara Co.). Subscribers may view the special verdict form within the full update.
PHILADELPHIA - A federal judge in Pennsylvania on April 9 refused to reconsider her order granting certification of a class of indirect purchasers who are suing the producers and distributors of Wellbutrin XL for illegally conspiring to prevent generic versions of the drug from entering the American market (In re: Wellbutrin XL Antitrust Litigation, No. 08-2431 (indirect), E.D. Pa.). Subscribers may view the order available within the full update.
LOS ANGELES - The Food, Drug and Cosmetic Act's bar on private enforcement preempts California residents' unfair competition law (UCL) claims involving the addition of the allegedly unapproved drug hydrofluosilicic acid (HFSA) to the water supply, a federal judge held April 10 (Debra Foli, et al. v. The Metropolitan Water District of Southern California, et al., No. 11-1765, S.D. Calif.; 2012 U.S. Dist. LEXIS 50272).
KANSAS CITY, Kan. - A Kansas federal judge has dismissed for lack of privity a breach of implied warranty claim over a street-sweeping machine that burst into flames when it was only three months old but in an April 11 ruling allowed the plaintiff municipality to amend its complaint to bolster a claim for breach of express warranty (City Of Winfield, Kansas v. Key Equipment & Supply Company, et al., No. 6:11-cv-1358-CM-KGS, D. Kansas; 2012 U.S. Dist. LEXIS 50559).
PHILADELPHIA - Claims by California diet clinic operators that they were defrauded under the state's unfair competition law (UCL) by American Home Products' marketing of the since-withdrawn diet drugs Pondimin and Redux were dismissed April 9 by the fen-phen multidistrict litigation judge (In re: Diet Drugs (phentermine/fenfluramine/dexfenfluramine) Products Liability Litigation, MDL NO. 1203, Geoffrey Drew, M.D., et al. v. American Home Products Inc., No. 00-21044, E.D. Pa.; 2012 U.S. Dist. LEXIS 49319).
LOS ANGELES - A manufacturer's representation that ice cream products contain zero trans fats complies with federal labeling law, preempting California unfair competition law (UCL) claims, the Ninth Circuit U.S. Court of Appeals held April 5 while also finding that the use of the terms "original" and "classic" were not deceptive (Mirko Carrea, et al. v. Dreyer's Grand Ice Cream Inc., No. 11-15263, 9th Cir.; 2012 U.S. App. LEXIS 6851).
SAN FRANCISCO - A man's claim that a mortgage servicing company backdated trustee documents in an attempt to cover up the fact that they were filed prior to notice of default successfully alleges fraudulent conduct under the California unfair competition law (UCL), a federal judge held April 4 (Nick Makreas v. First National Bank of Northern California, et al., No. 11-2234, N.D. Calif.; 2012 U.S. Dist. LEXIS 47847).