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Antitrust Litigation & Counseling  Government Agencies Commercial Litigation & Corporate Compliance Government Relations and Legislative Affairs Labor and Employment Trusts and Estates |
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 Antitrust Litigation & Counseling Overview of our Experience
Industry Expertise We have represented clients on antitrust matters that required a specialized and detailed understanding of the following industries: high technology, health care & pharmaceutical, telecommunications, insurance and reinsurance, electronic payment systems, media & publishing, retail, airlines, and consumer electronics industries. What Sets Us Apart? Our attorneys are both experts in antitrust law and seasoned litigators. Our approach to every case, whether on the plaintiff's side or the defense, is to be prepared to take the case to trial. Through technology, optimization of resources, and the specialized expertise of Constantine & Aborn Advisory Services, a consulting entity with which the firm has an existing relationship, we are able to contain the rapidly increasing costs of litigation better than other firms. Counseling, Training, and Investigations Our counseling services include advising clients on the antitrust issues raised by certain business practices; enforcement agency investigations and business reviews; litigation risk assessment; merger analysis; management and employee training; advice on competitor collaborations, including joint ventures, standard setting organizations, and trade associations; and investigations into alleged antitrust violations. Antitrust Cases Handled by Constantine Cannon Wal-Mart Stores, Inc. et al. v. Visa U.S.A. Inc. and MasterCard International Inc. (a/k/a In Re Visa Check/MasterMoney Antitrust Litigation) Constantine Cannon is lead counsel for the plaintiffs in this antitrust class action against Visa and MasterCard, on behalf of the more than five million retailers in the United States that accept Visa and MasterCard credit and debit cards. The firm secured a record-breaking settlement for its clients, consisting of $3.05 billion in payments from Visa and MasterCard along with reductions of fees to retailers valued by the courts at between $25 and $87 billion. The firm filed the lawsuit on behalf of its clients Wal-Mart Stores, Inc., The Limited, Inc., and other retailers as well as three retail trade associations. These retailers contended that Visa and MasterCard attempted to monopolize the debit card market by tying merchant acceptance of debit cards to credit cards and other anticompetitive conduct. Constantine Cannon continues to administer the class settlement, according to which approximately $1 billion of the settlement monies have already been distributed to over half a million merchants, including most of the largest and many of the smallest merchants in the country. Discover Financial Services, et al. v. Visa U.S.A. Inc., Visa International Service Association, MasterCard Incorporated and MasterCard International Incorporated Continuing to leverage and deepen our expertise in the payment systems industry, the firm represents Discover Financial Services in an antitrust action against Visa and MasterCard for substantial damages sustained as a result of Visa's and MasterCard's exclusionary rules that, from inception until October 2004, prohibited U.S. banks from issuing Discover credit and debit cards to their customers. This action follows from the decision in United States v. Visa U.S.A. Inc., Civ. No. 98-7076 (S.D.N.Y.) (BSJ), which held that the implementation and enforcement of Visa bylaw 2.10(e) and MasterCard's Competitive Programs Policy violated Section 1 of the Sherman Act. The District Court for the Southern District of New York enjoined the further enforcement of Visa's and MasterCard's exclusionary rules, finding that (1) Visa and MasterCard, both individually and collectively, possessed and exercised market power in the market for general purpose card network services; (2) the exclusionary rules harmed competition in that market; (3) the exclusionary rules injured Discover by precluding bank issuance of credit and debit cards over the Discover Network; (4) there were no legitimate business justifications for the exclusionary rules; and (5) Visa International "encouraged" Visa USA's implementation and enforcement of 2.10(e) and is, therefore, also liable under Section 1 of the Sherman Act. The Court of Appeals for the Second Circuit upheld the district court's findings, and the United States Supreme Court denied Visa's and MasterCard's petitions for certiorari in October 2004. Discover's litigation is expected to go to trial in September 2008. Funeral Consumers Alliance Inc., et al. v. Service Corporation International et al. The firm represents several individual consumers as well as the leading consumer rights group in the deathcare industry with roughly 400,000 members, in an antitrust challenge against the country's three largest funeral home chains and largest casket manufacturer. The basis for the challenge is that the defendants have conspired to fix the prices that consumers pay for caskets at artificially high levels by, among other things, entering into a group boycott of casket stores and Internet sellers that sell caskets at significantly discounted prices. The case is currently pending in the U.S. District Court, Southern District of Texas. Dolan et al. v. Fidelity National Title Insurance Company et al. Constantine Cannon represents New York consumers in this proposed antitrust class action against the country's four largest title insurance companies. The central complaint is that defendants, through their participation in the title industry's rate setting body, have illegally fixed the rates they charge consumers for title insurance in New York. The case is currently pending in U.S. District Court, Eastern District of New York. Park West Radiology, P.C. et al. v. CareCore National et al. The firm represents an outpatient diagnostic imaging clinic in a Sherman Act Section 1 litigation pending in the Southern District of New York against an insurance "gatekeeper" owned by competing diagnostic imaging providers. The plaintiff alleges that the defendant has exclusive contracts with some of the largest health insurance plans in New York and that it has been excluded from servicing patients whose medical services are covered by these health plans due to the acts of the defendant and its co-conspirators. The plaintiff alleges that defendant has excluded other competitors as well and that these acts of exclusion have harmed competition and led to a per se unlawful market allocation. The plaintiff seeks both damages and injunctive relief. Ortho Biotech v. Amgen The firm represents Ortho Biotech, a subsidiary of Johnson & Johnson, in a Sherman Act Section 1 and 2 litigation against Amgen, Inc. pending in the District of New Jersey. Ortho has alleged that Amgen has used its monopoly in the market for white blood cell growth factor (WBCGF) drugs to the detriment of consumers and competition that purchase red blood cell growth factor (RBCGF) drugs. WBCGF and RBCGF drugs are given to patients undergoing cancer chemotherapy that have sustained substantial losses in either white or red blood cells. Specifically, Ortho has alleged that Amgen has engaged in its exclusionary tactics by providing massive rebates to cancer clinics on its WBCGF drugs only on the condition that the clinics purchase all or substantially all of its RBCGF drugs from Amgen (as opposed to Ortho). Ortho alleges that this conduct has led to anticompetitive effects by, among other things, foreclosing it from substantial portions of RBCGF sales and that this conduct constitutes an illegal tying arrangement, a maintenance of monopoly power and/or an unlawful attempt to monopolize. Ortho seeks damages and injunctive relief in this matter. Inquivosa S.A. v. Ajinomoto Co., Inc. (a.k.a. In re Monosodium Glutemate Antitrust Litigation) Constantine Cannon represented the Government of Japan as an amicus curiae to the United States Court of Appeals for the Eighth Circuit in this global price-fixing lawsuit. The Eighth Circuit, agreeing with Japan's view that American federal courts lacked jurisdiction over the foreign conduct alleged in the case, affirmed the lower court's dismissal of foreign purchasers' claims. Bartholdi Cable Company, Inc. (formerly Liberty Cable Company, Inc.) v. Time Warner Inc., et al. Constantine Cannon represented Liberty Cable in its monopolization case against the former Time Warner. Liberty alleged, among other things, that Time Warner stifled competition in the cable television market in the New York metropolitan area through a campaign of predatory and deceptive conduct. The firm secured a favorable settlement for its client on the first day of the trial. Kesmai Corporation, et al. v. American Online, Inc., et al. Constantine Cannon represented Kesmai, a developer of on-line video games, in this monopolization case against America Online. Kesmai alleged that AOL used its monopoly position in the Internet service provider market to gain an unfair competitive advantage and monopoly power in the multi-player on-line games market. Constantine Cannon secured a favorable settlement for Kesmai on the eve of trial. Diskin v. Daily Racing Form, Inc. Constantine Cannon successfully defended Daily Racing Form, a daily newspaper dedicated to coverage of thoroughbred horse racing, against this purported class action, which alleged that Daily Racing Form violated the antitrust laws when it purchased the assets of a competitor newspaper. The firm secured a settlement following the first stage of discovery. Solla, et al. v. NYS Health Maintenance Organization Conference, Inc., et al. Constantine Cannon successfully defended New York Life Insurance Co. in an action brought against the major Health Maintenance Organizations in the New York metropolitan area. The case alleged, among other things, that the HMO defendants conspired to boycott chiropractors. The trial court granted defendants' motion for summary judgment, and the Second Circuit Court of Appeals affirmed. Heary Brothers Lightning Protection Co., Inc., et al. v. National Fire Protection Association, Inc., et al. Constantine Cannon defended the National Fire Protection Association (NFPA), a standard-setting association, in a suit alleging that NFPA conspired with plaintiffs' competitors through its standard setting process to exclude plaintiffs' allegedly innovative technology in the lightning protection industry. The NFPA, alone among the defendants, was able to settle this case on very favorable terms prior to any significant discovery in the case.
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