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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.
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Becton, Dickinson, and Company, Premier, Inc.,
and
Vizient, Inc. Accused of Restraint of
Trade and Overcharging |
May 2018 -
After a more than
two-year investigation by Berry Law, Marion
HealthCare, LLC and Andron Medical Associates on
May 3, 2018 filed a Section One action against
Becton, Dickinson and Company, Premier, Inc.,
Vizient, Inc. and the three largest Becton
distributors alleging conspiracy to restrain
trade by employing several, long-term
exclusionary contracts. Plaintiffs seek to
represent a national class of hospitals, clinics
and other healthcare providers that have
purchased Becton safety syringes, conventional
syringes and safety IV catheters over the last
four years. Preliminary damage estimates
indicate that healthcare providers have been
overcharged hundreds of millions of dollars by
Becton and its distributors over an extended
period. The matter has been filed in the United
States District Court for the Southern District
of Illinois.
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Berry Law Designated Legal Lion With Its
Co-Counsel
for Successful Resolution of News
Suit |
December 2017 - Law360
recognized Berry Law as part of a team of “Legal
Lions” upon the successful resolution of the
claims against News Corp. in the Southern
District of New York. In a December Order, U.S.
District Judge William Pauley III praised their
administration work in a $250 million settlement
of a class of major consumer goods companies
which had alleged monopolization of in-store
advertising. "The efforts of lead counsel and
the claims administrator to shepherd the
distribution process offers a paradigm for
smooth and efficient claims administration. . .
. If only all class action settlements could end
on such a high note, the nettlesome problems
inherent to cy pres might disappear." The other
team members were Kellogg Hansen Todd Figel &
Frederick PLLC, McKool Smith PC, Susman Godfrey
LLP, and Kramer Levin Naftalis & Frankel LLP.
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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
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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.
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Southeast Georgia Health Systems Sues Becton on
Behalf of Hospitals Overcharged by Becton
Syringes and IV Catheters |
July 2015
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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.
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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.
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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.
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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.
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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)
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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.
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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.
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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
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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
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Morelock Verdict Ranked As One of Top 100 in
2008 |
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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.
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Weyerhaeuser Company Hit with Jury Verdict
Resulting in $84 Million in Damages in
Monopolization Matter Brought on by Business
Class |
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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.
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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.
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Classes
Largely Comprised of Businesses to Receive $1.1
Billion from Microsoft in the Largest Settlement
in California History |
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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.
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Businesses to Receive Approximately $40 Million
in Overcharges From 3M |
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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.
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