In an opinion today in the Uber antitrust case, which was on remand from the Second Circuit (see our prior coverage here), Judge Rakoff sent the case to arbitration based on the “Terms of Service” within Uber’s phone application.  Before doing so, however, he complained of having to enforce terms that “everyone recognizes” are “totally coerced”:
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In a complaint filed earlier this week, a group of Broadway producers accused various Broadway casting companies of “band[ing] together to form a casting cartel, enlisting the help of the Teamsters to force Broadway producers to engage in collective negotiations.”  The Broadway League, representing the producers, notes that “the market for casting services is highly concentrated” but that “competition for casting services has been robust, forcing prices down.”  According to the complaint:
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In an opinion today, Judge Failla dismissed entirely a case brought by a bar exam company referred to as “LBE” that specializes in students with LL.M. degrees.  LBE accused the industry leader, Barbi, of colluding with law schools nationwide to harm its business, but LBE’s own complaint — 78 pages long and with 63 exhibits

Yesterday, Judge Forrest dismissed the remaining claims in the ongoing aluminum antitrust litigation, which alleged that aluminum trading firms and warehouses conspired to increase the price of aluminum.  In August, the Second Circuit affirmed Judge Forrest’s dismissal of the claims brought by indirect purchaser plaintiffs who did not actually participate in the market that was supposedly distorted (see our previous coverage here).

Judge Forrest applied the same logic to dismiss the claims for the remaining  first level purchaser plaintiffs:
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In an opinion yesterday, the Second Circuit affirmed Judge Forrest’s ruling (covered here) dismissing claims by consumer and commercial end-users who alleged that aluminum trading firms and warehouses conspired to increase the price of aluminum.  The Second Circuit ruled that the plaintiffs lacked antitrust standing because they did not participate in the markets where the wrongdoing was alleged to have occurred:
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In an opinion today, Judge Rakoff denied a motion to compel arbitration of antitrust claims against Uber’s CEO because he found that the arbitration clause was too concealed for the plaintiff to have reasonably agreed to it.  (See our prior posts on the case here.)

When a user enters his or her credit card information, there is a button that says “Register,” and below that, in a “barely legible” font, it says:  “By creating an Uber account you agree to the Terms of Service and Privacy Policy.”  The phrase “Terms of Service” is a hyperlink to terms that include a mandatory arbitration clause.

Judge Rakoff acknowledged that there is extensive case law upholding arbitration agreements when users must click a button stating “I agree” to the terms of use (so called “clickwrap” agreements), but found that the facts here were towards the other end of the spectrum, where the clauses are not enforceable:
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In the latest chapter of the saga over Uber’s background investigations into an antitrust plaintiff and his counsel (see coverage here), Judge Rakoff has ordered Uber and its investigative firm, Ergo, to cease their background investigations and has enjoined Uber from using any information found during the investigation in the antitrust proceeding.  Uber had hired Ergo to investigate the plaintiff and plaintiff’s counsel, an Ergo allegedly made various misrepresentations to gain information from friends and colleagues of the plaintiff and plaintiff’s counsel.

Judge Rakoff did not reach the issue of monetary sanctions, as defendants “have reached an agreement to pay plaintiff a reasonable (though publicly undisclosed) sum in reimbursement of plaintiff’s attorneys’ fees and expenses incurred in conjunction with these matters.”  Judge Rakoff described the proceedings as a “sad day” and noted that:
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