In a pair of opinions Monday, Judge Cote dismissed two putative class actions, one brought by college textbook retailers (opinion here) and another brought by students (opinion here), accusing textbook publishers and on-campus bookstore operators of violating the antitrust laws. The cases alleged an unlawful conspiracy involving a digital program called Inclusive Access that provides students automatic access to course materials when they register for class and bills their bursar account (unless they opt out).

In both cases, Judge Cote found that there were no plausible allegations of an anticompetitive agreement, or conspiracy, among the defendants, because there were ample independent reasons to pursue a digital strategy:
Continue Reading Judge Cote: College Textbook Publishers Did Not “Conspire” to Steer Universities to Requiring Digital Books

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

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:
Continue Reading Broadway Producers Sue to Bust Broadway Casting “Cartel”

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

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).

Continue Reading Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable

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:
Continue Reading Judge Forrest Dismisses Remaining Claims in Aluminum Antitrust Litigation

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:
Continue Reading Second Circuit Agrees With Judge Forrest that Aluminum Consumers Lack Antitrust Standing for Alleged Conspiracy Between Warehouses and Traders

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:
Continue Reading Judge Rakoff Rules That Uber’s Customer Arbitration Clause Is Not Conspicuous Enough to Be Enforceable