Antitrust Law Blog

Some of the most complex and contentious aspects of contemporary antitrust litigation involve threshold determinations about what kind of market participants are entitled to bring antitrust cases.  These controversies are typically played out in the context of two related, but distinct concepts.  The first is standing to sue, and the second is whether the type of injury allegedly suffered by the plaintiff is of the sort which the antitrust laws were intended to remedy, typically referred to as "antitrust injury."  In a recent unreported decision the Northern District of California wrote at length about both of these topics in the complex context of a challenge to basic aspects of the VISA interbank credit card system brought by First Data Incorporated, a small processor of credit card transactions seeking to both process VISA credit card transactions and offer credit card interchange services.  VISA USA v. First Data Corporation, et al., No. C02-01786 (May 12, 2006, N.D.Cal.).  Readers should note that the decision discussed below is only one of the latest in a series of private and government cases reflecting a variety of different challenges under state and federal antitrust law to the VISA bank credit card network.

Antitrust litigation in Canada differs significantly from that in the United States.  Whereas private antitrust litigation has been widespread and robust for many years in the U.S., private antitrust litigation in Canada has been slow to grow.  However, increasing calls for expanding private parties' access to antitrust lawsuits in Canada signal that Canada may be in store for a growth spurt.  Companies doing business in Canada should thus take note that private enforcement of Canada's antitrust law is likely to escalate.

In an unpublished opinion, designated as "not precedential," the Third Circuit recently affirmed the District Court's dismissal pursuant to the Federal Rule of Civil Procedure 12(b)(6) of antitrust claims that were predicated on a doctor's asserted economic retaliation against a nurse after she rebuffed his sexual advances.  Stark v. Ear Nose & Throat Specialists of Northwestern Penn., No. 05-2345, 2006 WL 1371571 (3rd Cir. May 19, 2006).  The plaintiffs were Beata and Norman Stark ("Stark"), and Beata Clinical Research Services ("BCRS"), who provided administrative and contractual support services to drug manufacturers and drug research firms.  Id. at *1, *4.  Defendants, Dr. Anon, his company, Ear Nose & Throat Specialists of Northwestern Penn. ("ENT"), and Robert Budacki, who was one of ENT's employees, engaged in drug and medical research in the field of ear, nose and throat.  Id.  The relationship between the defendants and Plaintiffs was essentially one of contractor and subcontractor.  Id. at *2.