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”:
Continue Reading Judge Rakoff Bemoans “Factual and Legal Fictions” Underlying Enforcement of Consumer Arbitration Clauses
Antitrust
Broadway Producers Sue to Bust Broadway Casting “Cartel”
By Michael Keough on
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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Judge Failla: Law Schools Steered Students Away From Bar Exam Prep Company On Merits, Not Because Schools Colluded With Barbri
By Charles Michael on
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…
Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable
By Michael Keough on
As part of the ongoing Uber antitrust litigation, the Second Circuit yesterday reversed Judge Rakoff’s earlier ruling that the arbitration clause in Uber’s terms of service was not enforceable (see our previous coverage of Judge Rakoff’s decision here, and the interlocutory appeal here).
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Judge Preska: Widespread Pirating Makes Music Price Fixing Case Unsuitable for Class Treatment
By Charles Michael on
In an opinion yesterday, Judge Preska refused to certify as a class action a case alleging price fixing in the digital music industry. Among other reasons, she found that widespread pirating would raise “unclean hand” defenses that could not be determined on a classwide basis:
Defendants note that two of the Proposed Class Representatives admitted
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Judge Forrest Dismisses Remaining Claims in Aluminum Antitrust Litigation
By Michael Keough on
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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Judge Rakoff Stays Antitrust Action Against Uber Pending Appeal Over Arbitrability
By Michael Keough on
As part of the ongoing Uber antitrust litigation, Judge Rakoff granted today the defendants’ request to stay the proceeding pending an interlocutory appeal of his prior order denying defendants’ motion to compel arbitration (see our coverage here).
Judge Rakoff noted that the while the defendants had not made a “strong showing” that they would…
Second Circuit Agrees With Judge Forrest that Aluminum Consumers Lack Antitrust Standing for Alleged Conspiracy Between Warehouses and Traders
By Charles Michael on
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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Judge Rakoff Rules That Uber’s Customer Arbitration Clause Is Not Conspicuous Enough to Be Enforceable
By Charles Michael on
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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Judge Rakoff Orders Uber Investigative Firm to Stop “Arguably Criminal Conduct,” Uber Will Pay Plaintiff’s Fees
By Michael Keough on
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:…
Continue Reading Judge Rakoff Orders Uber Investigative Firm to Stop “Arguably Criminal Conduct,” Uber Will Pay Plaintiff’s Fees