Legal News  

Operating for over two decades, BERRY LAW PLLC has a nationwide practice specializing in commercial and technology litigation, including complex antitrust matters.  Its matters have had global reach and involved multinational corporations directed not only from the United States, but also England, Holland, Germany, Russia and Japan.   

Firm Receives Award From American Antitrust Institute
September 2017 - Based on its successful origination and conclusion of The Dial Corporation, et al. v. News Corporation, et al., Civ. No. 13-cv-06802-WHP (SDNY) with recruited co-counsel, Berry Law has been designated by the American Antitrust Institute as an honoree for the 2017 Antitrust Enforcement Awards for Outstanding Antitrust Litigation Achievement in Private Law Practice. The Judging Committee for this award was comprised in part of the following:

Ellen S. Cooper, Office of the Attorney General of Maryland
Harry First, New York University School of Law
Kathleen E. Foote, California Department of Justice Antitrust Section
Warren Grimes, Southwestern Law School
Thomas Horton, South Dakota School of Law
Roger Noll, Stanford University
Court Approves Distribution of $250 Million Settlement Fund in News
March 13, 2017 - After an investigation of well over a year, Berry Law filed an action against News Corporation and its affiliates alleging monopolization of the sale of in-store promotions in the United States (The Dial Corporation, et al. v. News Corporation, et al., Civ. No. 13-0682 S.D.N.Y.). Its representation eventually included Consumer Packaged Goods Companies Kraft Heinz, Smithfield Foods, Dial, Bob Evans, Foster Farms and H.P. Hood. They served as representatives of a business class purchasing in-store promotions. Thereafter the Firm recruited four other national firms to assist in the prosecution. Counsel litigated class and summary judgment issues successfully, and the matter settled on the first day of trial after jury selection and opening statements. The Court’s approval of the distribution brings to a successful end this five-year litigation. Distributions of settlement compensation to businesses in the class will begin shortly.
Southeast Georgia Health Systems Sues Becton on Behalf of Hospitals Overcharged by Becton Syringes and IV Catheters
July 2015 - For over a century the antitrust laws of the United States have sought to preserve free and unfettered competition. Competition secures for all an equal opportunity to engage in business and innovation. It helps ensure that markets deliver the lowest competitive pricing, as well as safe and high quality products.

On July 7, 2015 the Southeast Georgia Health System sued Becton, Dickinson and Company on behalf of thousands of hospitals across the United States in the United States District Court for the Southern District of Georgia, Brunswick Division. It claims that Becton has systematically subverted innovation and competition for the sale of hypodermic syringes and IV catheters to United States hospitals for over a half century and monopolized the relevant markets in which they are sold.

Nurses experience more than 600,000 needlesticks a year which can and do spread hepatitis B, hepatitis C, and Human Immunodeficiency Virus (“HIV”). As a consequence, syringes are the most dangerous devices used by acute care hospitals.

Since 2001 federal law has mandated practices to reduce needlesticks from conventional syringes. Becton, however, has lethargically and unhelpfully made only minor and ineffective changes to its conventional syringes (by adding needle shields and recapping) (“manual safety syringes”). Nonetheless, Becton proclaims these as “safe,” “safety,” or “safety-engineered.” They do not materially reduce needlesticks and in some cases increase them. Just as importantly, they also do not prevent reuse of contaminated syringes.

Competition and innovation are the great drivers of American economic progress and safety. Here they have sought to compensate for monopolist Becton’s dangerous lethargy. A small company, Retractable Technologies Inc., sells patented syringes which reduce needlesticks to a minimum. Its needles automatically retract into the barrel after patient extraction taking them out of harm’s way. Further, the syringes’ plunger seals are also dislodged so that they cannot be used for a second injection (which could transmit contaminated blood). In marked contrast with the poor safety ratings of Becton’s syringes, the Emergency Care Research Institute accords these syringes its highest possible safety rating.

Rather than compete, and meet and improve upon Retractable’s innovation on the merits using its vast resources to protect the national health, Becton has an integrated strategy to suppress competition and maintain its monopoly. It employs six schemes including (a) exclusionary bundled rebates (foreclosing acute care providers from effective competitive access to safer syringes) and (b) penalty contracts and sole-source contracts to the same end.

Becton has used these schemes to obtain and maintain monopolies in the market for the sale of syringes and IV catheters to acute care providers. Southeast Georgia Health System seeks remedy for the resulting monopoly overcharging paid by hospitals purchasing Becton’s syringes, as well as its IV catheters.

Class Certified in News Corporation Monopolization Matter
June 2015 - The United States District Court for the Southern District of New York certified a class of consumer goods companies, including H.J. Heinz Co. and Dial Corp., accusing News Corp. of monopolizing the market for third-party, in-store promotions by in part entering into anti-competitive contracts with retailers. Berry Law originated this matter in December 2012.

Granting plaintiffs’ motion for class certification, Judge William H. Pauley III held that the consumer goods companies sufficiently showed a method to prove that they would have faced lower prices were it not for the alleged monopolization scheme.

He certified a class of consumer goods companies in the United States that had directly bought in-store promotions from News Corp. on or after April 5, 2008.

Heinz and Dial alleged that News Corporation used its dominant position to charge supra-competitive prices, specifically through its News America Marketing In-Store Services LLC unit.

The companies said News Corp. had engaged in a “swath of anti-competitive tactics” to obtain and maintain an illegal monopoly in the market, extracting monopoly prices from consumer packaged goods companies.
Federal District Court Certifies Antitrust Class in Patent Fraud Litigation
May, 2015 - In a matter originated by Berry Law PLLC in 2010, the United States District Court for the Northern District of California on May 14, 2015 certified a class for antitrust damages in Giuliano, et al. v. Sandisk Corporation, Case No. 10-2787-SBA. Plaintiffs have brought claims against SanDisk Corporation for monopoly overcharges in the sale of flash memory in violation of Section 2 of the Sherman Act. The claims are predicated on SanDisk’s alleged use of fraudulently procured patents to obtain market power. See Walker Process Equip. Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965). To the Firm’s knowledge this is the first Walker Process monopolization clam to be certified for class damages. The Court also rejected SanDisk’s attempt to exclude Plaintiffs’ expert testimony.
United States Court of Appeals for the
Federal Circuit Affirms Walker Process Standing
November 2012. In February 2011, United States District Judge Jeremy Fogel denied SanDisk Corporation’s motion to dismiss in Giuliano, et al. v. Sandisk Corporation, Case No. 10-2787-SBA, on the grounds that Plaintiff Estate of Ritz Camera & Image LLC as a purchaser had standing to bring a Walker Process claim for damages. SanDisk then filed an interlocutory appeal to the United States Court of Appeals for the Federal Circuit, arguing that the lower court’s decision was an unjustifiable expansion of Walker Process doctrine. In November 2012, the United States Court of Appeals for the Federal Circuit upheld Judge Fogel’s ruling.
Californians Ask the Ninth Circuit to Allow Actions to Proceed Against an Alledged Automobile Insurance Cartel Providing
Often Inferior or Unsafe Repair Parts
On October 25, 2013, four California policyholders with State Farm, Allstate, GEICO, and Liberty Mutual petitioned the United States Court of Appeals for the Ninth Circuit asking it to resurrect class claims against alleged antitrust collusion as to the use of imitation and salvage repair parts. The policyholders claim the District Court extinguished these claims by failing to accept the Ninth Circuit’s guidance in a prior appeal four years prior as to the nature of the alleged collusion and the resulting overcharging of California policyholders.

In that prior appeal the Ninth Circuit found that the District Court had “misunderstood” the claims, which assert (as the Circuit put it) that:

“[The four automobile insurance companies] violated California antitrust law by conspiring to thwart competition over, and to deceive [policyholders] with respect to repair coverage quality. Such conspiracy and deception, according to [policyholders], prevented higher quality coverage from reaching the market and artificially inflated premiums for lower quality coverage.”

Perez v. State Farm. Mut. Auto. Ins. Co., 319 F. App’x 615, 617 (9th Cir. 2009). In the current appeal, the policyholders assert that the District Court continued to misunderstand the claims and as a consequence failed to certify damage and injunctive classes. The latter classes seek to end the deceptive collusion which it is alleged has often has given Californians unsafe and inferior repair parts for over a decade. The policyholders’ brief may be found here. (pdf)

Five More Consumer Package Goods Companies Allege News Corporation Has Monopolized In-Store Promotion and Coupon Markets
October, 2013 -  Five consumer packaged goods companies have joined the H. J. Heinz Company and The Dial Corporation to allege that News Corporation monopolized the markets for the sale of in-store promotion services in retail chains and coupons typically placed in Sunday newspapers. The new claimants are Foster Poultry Farms, Smithfield Foods, Inc., HP Hood LLC, BEF (Bob Evans) Foods, Inc. and Spectrum Brands, Inc. All companies seek to represent business classes of purchasers from News. The matter is pending in the Southern District of New York.

They are seeking to prove that News has suppressed competitive promotion of a massive number of consumer goods in forty thousand retail stores, and scores of newspapers nationwide, to acquire and maintain two unlawful monopolies and earn large monopoly profits at the expense of consumer packaged goods companies. They have paid unlawful, above-competitive prices since 2008. News has already paid to competitors over $625 million to resolve similar antitrust claims.
Two Additional Business Purchasers Allege That SanDisk Corporation Has Monopolized NAND Flash Memory
October, 2013 - Joining the Trustee for the Ritz Camera Estate, CPM Electronics, Inc. and E.S.E. Electronics, Inc. are now alleging that SanDisk Corporation has monopolized the market for sale of NAND flash memory and overcharged business purchasers since 2006. The companies seek to represent classes of business purchasing this memory. The matter is pending in the Northern District of California.

NAND flash memory is a form of non-volatile erasable memory. Its transistors are connected in series and this memory is especially attractive for the storage of large amounts of data. This memory comes in raw and finished forms. “Raw” or “component” flash memory is the basic flash memory wafer that is produced by a fabrication plant or fab. “Finished” flash memory products are used in, or with, various electronic products, including cards, drives and sticks used in mobile phones, digital cameras, digital video camcorders, gaming devices, portable digital audio/video players, personal computers, and global positioning systems.

It is alleged that SanDisk has maintained a monopoly over raw and finished NAND flash memory worldwide in part by obtaining fraudulent patents by willful and knowing fraud on the United States Patent and Trademark Office (“USPTO”). It has used these fraudulent patents to disadvantage and to exclude competition in the relevant market by asserting their infringement against major SanDisk competitors, including Samsung.
Berry Law’s Client Ritz Camera
Prevails on Antitrust Standing Issue in Court of Appeals
January, 2013 - “In a recent important decision in Ritz Camera & Image LLC v. SanDisk Corporation, 700 F.3d 503 (Fed. Cir. 2012), the Federal Circuit granted standing to direct purchasers of a patented product to bring a ‘Walker Process’ claim for antitrust liability. A Walker Process antitrust claim may be brought when a patent was procured through intentional fraud on the U.S. Patent and Trademark Office. Under Ritz Camera, direct purchasers an bring these claims against a defendant as a class action, even in circumstances where the class has no standing to challenge the patent’s validity or enforceability.”

Intellectual Property Law 360, January 30, 2013
Berry Law PLLC represents Ritz Camera & Image LLC
News Corporation Coupon Dispute Leads to Litigation
January, 2013 - Wall Street Journal, Corporate News. “In 2010, News Corporation paid $500 million to settle a suit filed by rival marketing-service firm Valassis Communications Inc., which had accused News Corporation of using monopoly power in the in-store promotion market to gain an unfair advantage in the newspaper coupon market.

A legal battle has broken out between News Corporation and two marketers, H.J. Heinz Co. and Dial Corporation after the two companies sued the media company alleging antitrust violations at its coupon and in-store advertising unit. The companies allege that News Corporation’s bundled in-store promotions with coupons placed in newspapers in an effort to block out competitors that didn’t offer both services.

The litigation is the latest in a series of legal battles over News Corporation’s in-store marketing business. In 2010, News Corporation paid $500 million to settle a suit filed by a rival marketing service firm, Valassis Communications, Inc. Valassis also accused News Corporation of using monopoly power in the in-store promotion market to gain an unfair advantage in the newspaper coupon market.

In 2011, News Corporation paid a $125 million settlement to in-store marketer Insignia Systems Inc. after that rival accused it of breaking antitrust laws.”

Wall Street Journal, January 30, 2013
Berry Law PLLC represents The Dial Corporation and H.J. Heinz Company
Morelock Verdict Ranked As One of Top 100 in 2008

 March, 2009 -  BERRY LAW PLLC’s verdict in April 2008 for 440 businesses against Weyerhaeuser Company has been ranked by the National Law Journal among the top 25 U.S. verdicts of 2008 (National Law Journal, March 2009). This was the only antitrust verdict among the top 50 verdicts.

After a nine-day trial and two days of deliberation, the jury found that Weyerhaeuser had monopolized the market for finished alder lumber and awarded the business class nearly $26 million. After trebling, judgment was entered for nearly $84 million.

Weyerhaeuser Company Hit with Jury Verdict Resulting in $84 Million in Damages  in Monopolization Matter Brought on by Business Class

Monday, April 28, 2008 - In a rare antitrust, class damage action tried to a verdict, a jury this afternoon in Portland, Oregon awarded just under $28 million in price-overcharge damages against the Weyerhaeuser Company. 

When the verdict was entered as a judgment by the United States District Court for the District of Oregon, it was automatically tripled – or trebled – under the federal Sherman Act to $84 million.

The damages were shared by approximately 450 wood product manufacturers and distributors purchasing finished alder lumber directly from the Weyerhaeuser Northwest Hardwoods Division between the end of April 2000 and the end of 2006.

The nine-person jury found that Weyerhaeuser had monopolized the market for the sale of  finished alder lumber under the federal Sherman Act and charged the wood product manufacturers and distributors monopoly prices. 

The business class was represented by Morelock Enterprises Inc. and its principal, Scott Morelock, now of Morewood Products Inc.  Morelock and Morewood are small, family-run wood shops that have operated in southern Oregon in the town of Bend. 

The Morelock Enterprises action had been pending for four years, and this jury verdict is the culmination of a series of monopolization actions brought against Weyerhaeuser.  Prior actions were brought by Weyerhaeuser’s alder lumber competitors, whose primary claim was that Weyerhaeuser had monopolized the alder sawlogs required by its lumber competitors to compete in the downstream lumber market.

According to the class’ trial counsel, Stephen Berry,  

“This class action is also somewhat  unusual because it went to a jury verdict and the class is composed of United States businesses serving as market middlemen manufacturers of alder products or distributors, rather than consumers or end users of a product. To reach this verdict, the jury must have found that Weyerhaeuser suppressed alder lumber competition and competitors, and maintained a monopoly in the alder lumber market through anticompetitive conduct. The businesses claimed that Weyerhaeuser had monopolized the sale of alder lumber for over a decade by – in part – denying them the critical input for the milling of alder lumber and alder sawlogs, as well as by a series of competitor acquisitions dramatically reducing price competition.  It is uncertain which of these claims were credited by the jury in reaching its verdict.

The class showed that Weyerhaeuser systematically charged wood product manufacturers and alder distributors monopoly prices for at least six years.  Sworn testimony was received against Weyerhaeuser from many of its alder lumber competitors, several of which have failed, and some  of Weyerhaeuser’s major alder lumber purchasers.”

The case is captioned Morelock Enterprises Inc. v. Weyerhaeuser Co, Civil No. 3:04-cv-00583-PA in the United States District Court for the District of Oregon.

Classes Largely Comprised of Businesses to Receive $1.1 Billion from Microsoft in the Largest Settlement in California History

July 31, 2006 -  BERRY LAW PLLC in 1999 brought the first private action in the country for damages against Microsoft under California’s unfair competition and antitrust laws, alleging that Microsoft monopolized the markets in California for operating system and office suite software. The Firm represented classes of indirect purchasers of such software in the California State courts. The classes alleged they were overcharged by more than $3 billion.

The action was designated the lead case in the consolidated California class actions against Microsoft, and the Firm was selected to serve on the Executive Committee established by the Court to manage the litigation.

In January 2003, less than one month before trial, Microsoft agreed to settle this matter by giving as many as 13 million California businesses and consumers (who had purchased Microsoft operating systems and application software) a total of $1.1 billion in vouchers which could be used to buy desktop computer hardware or software from any vendor, including Microsoft’s rivals.

It is estimated that 80% of the class members, California businesses shared in the recovery, the largest settlement in California history. Most of any unclaimed settlement funds was paid to the California Department of Education for use in purchasing software, hardware, training, or service from the vendor of its choice to benefit poor schools in the State.

The settlement was implemented in the Fall of 2006.

Businesses to Receive Approximately $40 Million in Overcharges From 3M

July 31, 2006 - BERRY LAW PLLC represented a class of businesses that purchased transparent tape from 3M Company in an action alleging that 3M had unlawfully maintained a monopoly over the sale of such tape in the United States.

In the United States District Court for the Eastern District of Pennsylvania, the Firm obtained a favorable class certification ruling, and sponsored an expert damage report estimating that 3M had overcharged the businesses in the class in excess of $90 million.

Settlement of the matter was reached less than thirty days before trial was to begin.

The businesses in the class received approximately $40 million in damages when the settlement was finally approved by the Court.