Featured in Law360: Kellogg Hansen Client NTE Prevails in Antitrust Appeal Against Duke Energy (2024)

News

On Monday, August 5, 2024, the U.S. Court of Appeals for the Fourth Circuit delivered a significant victory for Kellogg Hansen client NTE in its antitrust monopolization case against Duke Energy. The Fourth Circuit’s ruling creates an important precedent on multiple important principles of U.S. antitrust law.

NTE’s mission has been to provide cleaner, lower-cost electricity to wholesale customers in the Carolinas, where Duke Energy has been the incumbent monopolist for years. Duke Energy admittedly could not compete with NTE on price or efficiency, so, as NTE’s lawsuit highlighted, Duke undertook multiple strategies to stifle competition from NTE. Among other things, Duke Energy terminated NTE’s interconnection agreement under false pretenses and in violation of FERC regulations; and it offered a renewal contract to an existing customer, Fayetteville, with a complex discounted pricing structure that was designed to prevent NTE from competing.

The District Court had initially granted summary judgment to Duke Energy. It analyzed each aspect of Duke’s multi-pronged strategy separately, and asserting that each separate component did not independently constitute an antitrust violation. The Court of Appeals also reaffirmed an important principle of judicial recusal: once a judge is recused, that judge is recused from the case permanently.

The Fourth Circuit rejected this reasoning and sided with NTE Energy.

NTE Energy is represented by Derek Ho, Caroline Schechinger, Matthew Wilkins, and Jonathan Liebman of Kellogg Hansen.

Read the full article here: Law360’s Legal Lions Of The Week – Law360

June 12, 2024

June 12, 2024 – Kellogg Hansen partner John Thorne and associate Derek Reinbold recently authored the U.S. chapter for Global Competition Review’s inaugural Data & Antitrust Guide. The chapter details how U.S. antitrust enforcers and courts view uses and abuses of data. It begins by discussing data’s role in monopolization cases such as the high-profile actions against Google, Facebook, and Amazon. It next addresses how enforcers treat mergers in which the merging parties maintain competitively valuable – or competitively sensitive – data. It then turns to issues of collusion, particularly how enforcers view new technologies such as artificial intelligence in cases involving information exchanges or alleged price-fixing. The chapter concludes with a discussion of how data privacy has emerged as a new metric of market power, an element of competitive harm, and potential procompetitive justification for otherwise anticompetitive conduct. Read the full article here: United States: High-profile cases shed light on antitrust enforcement against data abuse - Global Competition Review..

May 23, 2024

May 23, 2024— Kellogg Hansen partner Derek Ho will present at The 2024 Global Class Actions and Mass Torts Perfect Law Conference on Thursday, May 23, 2024. This two-day conference, held in London, is a prestigious international event that focuses on the concept of collective redress, which refers to legal mechanisms that allow a large group of individuals who have suffered similar harm or injury to pursue their claims together as a single entity.Derek will speak on a panel titled, “Models of Damages Assessment,” with other industry leaders from across the globe. See the full line up of speakers here and the full agenda here...

May 21, 2024

May 21, 2024— Chinese state-owned enterprise Irico Group Corporation and its subsidiary Irico Display Devices Co. face a potential default judgment for more than $2.4 billion in a long-running price-fixing lawsuit brought by classes of American purchasers of cathode ray tubes.Special Master Vaughn R. Walker, appointed by U.S. District Judge Jon S. Tigar, recommended the default judgment as a sanction for discovery misconduct. The Special Master’s report and recommendation found that Irico’s misconduct over the course of the litigation showed “contempt for th[e] court,” “defied the basic responsibilities of a civil litigant in the United States,” and reflected a “malign strategy” under which “evidence ... grew stale” and “Irico’s own witnesses ... disappeared.” The report included a litany of specific examples including failures to preserve and spoliation of both electronic and physical evidence, false representations to the court, an appeal that delayed the litigation for a year, and failures to produce key witnesses. It concluded that no sanction less than a default judgment would suffice as a remedy.Judge Tigar will now consider whether to adopt the Special Master’s report and recommendation. If that occurs, Irico will be required to pay plaintiffs’ attorneys’ fees, and the court will determine the total damages due.The direct purchaser class of plaintiffs is represented by R. Alexander Saveri, Geoffrey C. Rushing, Matthew D. Heaphy and David Y. Hwu of Saveri & Saveri Inc.; Steven F. Benz, Gregory G. Rapawy, and Robert C. Klipper of Kellogg Hansen Todd Figel & Frederick PLLC. The indirect purchaser class of plaintiffs is represented by Mario N. Alioto and Lauren C. Capurro of Trump Alioto Trump & Prescott LLP; and Joseph W. Cotchett, Adam J. Zapala, James Gerard Beebe Dallal, and Imtiaz A. Siddiqui of Cotchett Pitre & McCarthy LLP.The case is In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No. 1917, No. 4:07-cv-05944, in the U.S. District Court for the Northern District of California...

May 01, 2024

May 1, 2024—Twenty-three Kellogg Hansen attorneys qualified for recognition on the 2023 Capital Pro Bono Honor Roll forcontributing fifty hours or more of pro bono work to those who cannot afford legal counsel.Twelve Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service. The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.The complete list of 2023 Honor Roll members hail from 166 firms, solo practices, federal and local government agencies, corporations, associations, and public interest organizations, accounting for least 392,750 hours of pro bono service across all types of practice. It can be found here.Chief Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals and Chief Judge Anita Josey-Herring of the Superior Court of the District of Columbia stated:“Thank you for answering – and in many cases exceeding – the call to service embodied by Rule 6.1. We know that your actions stem not only from a commitment to your ethical obligations, but also from your principled belief in equal access to justice. We are pleased to recognize your dedication by including your name on this year’s Capital Pro Bono Honor Roll.”Kellogg Hansen 2023 Capital Pro Bono Honor RollRachel T. Anderson* Scott K. Attaway*Justin B. Berg* Geoffrey Block* Mary Charlotte Y. Carroll*Tiberius T. Davis Abigail E. DeHart* Hannah D.C. DePalo D. Chanslor GallensteinNataliia Gillespie Jordan R. Gonzalez Minsuk Han* Mark P. Hirschboek Derek T. Ho*Geoffrey M. Klineberg* Ariela M. Migdal Matthew D. Reade* Catherine M. Redlingshafer Derek C. Reinbold*Caroline A. Schechinger Andrew Skaras Alex P. Treiger* Daren G. Zhang** denotes High Honor Roll..

April 30, 2024

April 30, 2024— This month, Kellogg Hansen partner Steve Benz presented at the American Bar Association’s 72nd Antitrust Spring Meeting in Washington, DC.Along with Ian Simmons, partner & co-chair of the Antitrust Practice Group at O’Melveny & Myers LLP, Tara L. Reinhart, partner at Skadden Arps Slate Meagher & Flom LLP, Sharon K. Robertson, partner at Cohen Milstein Sellers & Toll PLLC, and Kalpana Srinivasan, managing partner at Susman Godfrey LLP, the group’s gave a discussion titled, “Trying a Section 2 Case: Best Practices.”Understanding exclusionary conduct, a critical element in monopolization claims, poses conceptual challenges as the law adapts to technological advances and changes in the marketplace. A raft of enforcement, competitor, and consumer actions are pending against Amazon; Apple; Google; and Meta. These platforms are alleged to have monopolized complementary markets, often by tying the platforms to the use of their own products and services. Over the next decade, courts will continue to develop Section 2 digital platform jurisprudence. The discussion encompassed both the conceptual underpinnings of monopolization doctrine and practical strategies for developing and trying monopolization cases, highlighting the dynamic and complex nature of Sherman Act Section 2 litigation. ..

April 16, 2024

April 16, 2024— In a case highlighted by Law360’s Petition Watch, Kellogg Hansen client Living Essentials has asked the Supreme Court to clarify what a private plaintiff must prove to win a “secondary line” price discrimination case under the Robinson-Patman Act. At trial, Living Essentials persuaded both a jury and the court to reject claims that it had violated the Act by offering Costco lower prices to buy its popular energy shots, 5-hour ENERGY®, than it had offered to certain wholesalers. The district court explained that the wholesalers could not show they competed with Costco for the same customers, as required by Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006). But a fractured panel of the Ninth Circuit, breaking from the decisions of other courts of appeals, held Volvo inapplicable. The petition urges the Court to grant review because the decision “invites litigation that will punish the price competition that antitrust law aims to encourage.”Living Essentials, LLC and its parent company, Innovation Ventures, LLC, are represented by Kellogg Hansen attorneys David C. Frederick, Daniel G. Bird, Collin R. White, and Kyle C. Bailey. Read more in this report by Law360...