Victoria Sims co-authors amicus brief supporting the District of Columbia’s appeal in its monopoly case against Amazon.
Victoria Sims, Vice Chair of COSAL’s Amicus Committee, co-authored an amicus brief filed on January 30, 2023 in the DC Court of Appeals supporting the District of Columbia’s appeal in its monopoly case against Amazon. Other writers on the brief were Jessica Kahn, at Fine Kaplan and Black, and Kristen Marttila, at Lockridge Grindal Nauen and the amicus committee chair.
COSAL argued that the District of Columbia Superior Court misapplied Twombly and the Rule 8 standard when it held that, because the District had not specifically identified the first-party or third-party sellers who were Amazon’s counterparts in its scheme to eliminate competition in the online sales market through the use of Most-Favored Nations clauses, the complaint was not sufficiently plausible to survive a motion to dismiss. The brief explained that, if allowed to stand, the D.C Superior Court’s ruling will jeopardize both public and private enforcement efforts against powerful monopolists like Amazon, whose sellers avoid confrontations with Amazon at all costs, out of fear for their livelihoods. The brief drew on COSAL members’ expertise representing plaintiffs in private antitrust actions to elaborate on the fear of retaliation that can deter those affected by anticompetitive conduct from coming forward, and discussed evidence in a recent report by the House Judiciary Committee that such fears were particularly well-founded and well-documented with respect to Amazon. The Amazon section of the report was written by CGL partner Amanda Lewis. See Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, 117th Congress, Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations, 213 (Comm. Print 2022).
COSAL’s amicus brief was written up in a January 31, 2023 Law 360 article describing the amicus briefs supporting reversal of the Superior Court’s dismissal of the District of Columbia’s case.
2023.01.31 Groups Back DC AG Bid To Revive Amazon Antitrust Suit – Law360
DC v Amazon amicus brief (1.30)
Charles Tiefer article on Forbes.com
Charles Tiefer explains the “kamikaze” move that Speaker Kevin McCarthy may need to make in order to avoid a debt default on Forbes.com:
Amanda Lewis Named to the AAI Advisory Board
Amanda Lewis has been named to the American Antitrust Institute’s Advisory Board, a group of outstanding experts in the fields of antitrust law, economics, and business in the United States and abroad.
Missouri Corrections Officer $117M Settlement Receives Final Approval; Initial Distribution to 20,000 Class Members Imminent.
CGL are pleased to announce that, after a decade-long fight to secure fair pay for Corrections Officers working at Missouri state prisons, the Circuit Court of Cole County, Missouri has given final approval to a Settlement valued at $117M. These workers, among the lowest paid in the nation, were denied pay for critical work they perform before and after every shift. During the course of the hard-fought litigation, CGL attorneys, lead by Michael Flannery, and their co-counsel won a $113 million jury verdict at trial in August of 2018. After the Missouri Supreme Court largely upheld the State’s liability, and preparations were being made for a second trial, the case was settled during pretrial mediation.
More than 20,000 hard-working members of the Settlement Class will receive back pay and damages as a result of the Settlement, with checks being mailed in the next several weeks. The Settlement also provides Corrections Officers with increased pay going forward for at least eight years. The Settlement and the benefits to these Corrections Officers reflect CGL’s commitment to pursue justice for their clients, however long that takes.
For more information, see the Settlement website:
Pamela Gilbert comments on Law.com
Pamela Gilbert comments on the role of organizations such as the Committee to Support the Antitrust Laws in providing a forum for plaintiff’s attorneys to work together on issues of mutual concern in this Law.com article.
Jonathan W. Cuneo inducted into the Private Antitrust Enforcement Hall of Fame
The American Antitrust Institute (AAI) has chosen Jonathan W. Cuneo as the 2022 inductee to the Private Antitrust Enforcement Hall of Fame. He will be honored at AAI’s Awards Night on November 9, 2022 in Washington, DC. AAI President Diana Moss noted, “Jon Cuneo is an iconic member of the antitrust community and has been at the vanguard of the movement for stronger enforcement of the antitrust laws for decades. We are delighted to induct him into the AAI Hall of Fame.”
The Hall of Fame recognizes practitioners for three major contributions:
– Distinguished service to the private antitrust enforcement community;
– Commitment to the enforcement of the antitrust laws; and
– Success in fighting for competition, consumers, and workers.
Mr. Cuneo joins AAI Private Antitrust Enforcement Hall of Fame inductees Joseph Goldberg, Roberta D. Liebenberg, H. Laddie Montague Jr., Ellen Meriwether, and Michael Freed.
Generic Drugs Price-Fixing
CGL continues to represent independent pharmacies and hospitals against manufacturers of generic drugs that engaged in a price-fixing conspiracy. In July 2022, CGL filed an amended complaint with additional evidence that major drug wholesalers participated in the scheme to divide the market for dozens of generic drugs in order to keep prices illegally inflated.
FTC Watch reports that Amanda Lewis has joined CGL
“Amanda Lewis joined Cuneo Gilbert & LaDuca after serving at the Federal Trade Commission as a competition attorney and detailee to the House Judiciary Committee.”
Ninth Circuit Affirms Certification of Commercial Food Preparer Class Led By CGL
Sitting en banc, the Ninth Circuit Court of Appeals affirmed district court certification of a class of Commercial Food Preparers, including restaurants, that purchased packaged tuna products in Olean Wholesale Grocery v. Bumble Bee Foods, — F.4th —, 2022 WL 1053459 (9th Cir. Apr. 8, 2022) (en banc). CGL serves as lead counsel for the Commercial Food Preparer class, and the Ninth Circuit’s opinion upholds a first-of-its-kind contested certification of a class of commercial indirect purchasers in antitrust litigation.
Senate Passes Open App Markets Act (OAMA)
On February 3rd 2022, the Senate Judiciary Committee approved the Open App Markets Act (OAMA) by a strong bipartisan vote of 20-2. OAMA would prevent Apple and Google from using their market power to require app developers to use a specific in-app payment system or from unfairly promoting their own apps above those of competing app developers. This will mean app developers will be able to stop paying huge fees to Big Tech and app users will be able to pay less for apps. OAMA includes a private right of action, modeled after the treble damage remedy in the Clayton Act, for app developers to enforce the law.
The Committee to Support the Antitrust Laws, represented by CGL, worked with the bill’s sponsors on the private right of action provision.
House Passes the Forced Arbitration Injustice Repeal Act (FAIR Act)
On March 17th, the U.S. House of Representatives passed the Forced Arbitration Injustice Repeal Act (FAIR Act) by a vote of 222-209. The FAIR Act would prohibit the enforcement of forced arbitration clauses in consumer, employment and civil rights disputes and in antitrust class actions. If it becomes law, the FAIR Act will open the courthouse doors to millions of individuals and small businesses who cannot effectively vindicate their rights in secretive, individual arbitration proceedings.
On behalf of the Committee to Support the Antitrust Laws and the American Association for Justice, CGL plays a leading role in the coalition supporting the legislation.
CGL wins D.C. Circuit appeal, denying immunity to Pan American Health Organization for human trafficking of Cuban doctors.
The 3-0 decision marks the first time a federal appellate court has ever held that an international organization’s immunity in U.S. Courts cannot not cover commercial acts related to forced labor. The panel upheld CGL’s position that knowingly benefitting from participation in a forced labor venture is itself a wrongful act.
The doctors’ claims under the Trafficking Victims Protection Act will now proceed. They allege that from 2013 to 2018, PAHO kept $75 million of their wages and served as a financial intermediary to enable Cuba to traffic thousands of medical personnel to forced work programs in Brazil.
For more information, contact Peter Gil-Montllor at 202-789-3960 or pgil-montllor@cuneolaw.com
Victoria Sims co-authors amicus brief supporting the District of Columbia’s appeal in its monopoly case against Amazon.
Victoria Sims, Vice Chair of COSAL’s Amicus Committee, co-authored an amicus brief filed on January 30, 2023 in the DC Court of Appeals supporting the District of Columbia’s appeal in its monopoly case against Amazon. Other writers on the brief were Jessica Kahn, at Fine Kaplan and Black, and Kristen Marttila, at Lockridge Grindal Nauen and the amicus committee chair.
COSAL argued that the District of Columbia Superior Court misapplied Twombly and the Rule 8 standard when it held that, because the District had not specifically identified the first-party or third-party sellers who were Amazon’s counterparts in its scheme to eliminate competition in the online sales market through the use of Most-Favored Nations clauses, the complaint was not sufficiently plausible to survive a motion to dismiss. The brief explained that, if allowed to stand, the D.C Superior Court’s ruling will jeopardize both public and private enforcement efforts against powerful monopolists like Amazon, whose sellers avoid confrontations with Amazon at all costs, out of fear for their livelihoods. The brief drew on COSAL members’ expertise representing plaintiffs in private antitrust actions to elaborate on the fear of retaliation that can deter those affected by anticompetitive conduct from coming forward, and discussed evidence in a recent report by the House Judiciary Committee that such fears were particularly well-founded and well-documented with respect to Amazon. The Amazon section of the report was written by CGL partner Amanda Lewis. See Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, 117th Congress, Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations, 213 (Comm. Print 2022).
COSAL’s amicus brief was written up in a January 31, 2023 Law 360 article describing the amicus briefs supporting reversal of the Superior Court’s dismissal of the District of Columbia’s case.
2023.01.31 Groups Back DC AG Bid To Revive Amazon Antitrust Suit – Law360
DC v Amazon amicus brief (1.30)
Charles Tiefer article on Forbes.com
Charles Tiefer explains the “kamikaze” move that Speaker Kevin McCarthy may need to make in order to avoid a debt default on Forbes.com:
Amanda Lewis Named to the AAI Advisory Board
Amanda Lewis has been named to the American Antitrust Institute’s Advisory Board, a group of outstanding experts in the fields of antitrust law, economics, and business in the United States and abroad.
Missouri Corrections Officer $117M Settlement Receives Final Approval; Initial Distribution to 20,000 Class Members Imminent.
CGL are pleased to announce that, after a decade-long fight to secure fair pay for Corrections Officers working at Missouri state prisons, the Circuit Court of Cole County, Missouri has given final approval to a Settlement valued at $117M. These workers, among the lowest paid in the nation, were denied pay for critical work they perform before and after every shift. During the course of the hard-fought litigation, CGL attorneys, lead by Michael Flannery, and their co-counsel won a $113 million jury verdict at trial in August of 2018. After the Missouri Supreme Court largely upheld the State’s liability, and preparations were being made for a second trial, the case was settled during pretrial mediation.
More than 20,000 hard-working members of the Settlement Class will receive back pay and damages as a result of the Settlement, with checks being mailed in the next several weeks. The Settlement also provides Corrections Officers with increased pay going forward for at least eight years. The Settlement and the benefits to these Corrections Officers reflect CGL’s commitment to pursue justice for their clients, however long that takes.
For more information, see the Settlement website:
Pamela Gilbert comments on Law.com
Pamela Gilbert comments on the role of organizations such as the Committee to Support the Antitrust Laws in providing a forum for plaintiff’s attorneys to work together on issues of mutual concern in this Law.com article.
Jonathan W. Cuneo inducted into the Private Antitrust Enforcement Hall of Fame
The American Antitrust Institute (AAI) has chosen Jonathan W. Cuneo as the 2022 inductee to the Private Antitrust Enforcement Hall of Fame. He will be honored at AAI’s Awards Night on November 9, 2022 in Washington, DC. AAI President Diana Moss noted, “Jon Cuneo is an iconic member of the antitrust community and has been at the vanguard of the movement for stronger enforcement of the antitrust laws for decades. We are delighted to induct him into the AAI Hall of Fame.”
The Hall of Fame recognizes practitioners for three major contributions:
– Distinguished service to the private antitrust enforcement community;
– Commitment to the enforcement of the antitrust laws; and
– Success in fighting for competition, consumers, and workers.
Mr. Cuneo joins AAI Private Antitrust Enforcement Hall of Fame inductees Joseph Goldberg, Roberta D. Liebenberg, H. Laddie Montague Jr., Ellen Meriwether, and Michael Freed.
Generic Drugs Price-Fixing
CGL continues to represent independent pharmacies and hospitals against manufacturers of generic drugs that engaged in a price-fixing conspiracy. In July 2022, CGL filed an amended complaint with additional evidence that major drug wholesalers participated in the scheme to divide the market for dozens of generic drugs in order to keep prices illegally inflated.
FTC Watch reports that Amanda Lewis has joined CGL
“Amanda Lewis joined Cuneo Gilbert & LaDuca after serving at the Federal Trade Commission as a competition attorney and detailee to the House Judiciary Committee.”
Ninth Circuit Affirms Certification of Commercial Food Preparer Class Led By CGL
Sitting en banc, the Ninth Circuit Court of Appeals affirmed district court certification of a class of Commercial Food Preparers, including restaurants, that purchased packaged tuna products in Olean Wholesale Grocery v. Bumble Bee Foods, — F.4th —, 2022 WL 1053459 (9th Cir. Apr. 8, 2022) (en banc). CGL serves as lead counsel for the Commercial Food Preparer class, and the Ninth Circuit’s opinion upholds a first-of-its-kind contested certification of a class of commercial indirect purchasers in antitrust litigation.
Senate Passes Open App Markets Act (OAMA)
On February 3rd 2022, the Senate Judiciary Committee approved the Open App Markets Act (OAMA) by a strong bipartisan vote of 20-2. OAMA would prevent Apple and Google from using their market power to require app developers to use a specific in-app payment system or from unfairly promoting their own apps above those of competing app developers. This will mean app developers will be able to stop paying huge fees to Big Tech and app users will be able to pay less for apps. OAMA includes a private right of action, modeled after the treble damage remedy in the Clayton Act, for app developers to enforce the law.
The Committee to Support the Antitrust Laws, represented by CGL, worked with the bill’s sponsors on the private right of action provision.
House Passes the Forced Arbitration Injustice Repeal Act (FAIR Act)
On March 17th, the U.S. House of Representatives passed the Forced Arbitration Injustice Repeal Act (FAIR Act) by a vote of 222-209. The FAIR Act would prohibit the enforcement of forced arbitration clauses in consumer, employment and civil rights disputes and in antitrust class actions. If it becomes law, the FAIR Act will open the courthouse doors to millions of individuals and small businesses who cannot effectively vindicate their rights in secretive, individual arbitration proceedings.
On behalf of the Committee to Support the Antitrust Laws and the American Association for Justice, CGL plays a leading role in the coalition supporting the legislation.
CGL wins D.C. Circuit appeal, denying immunity to Pan American Health Organization for human trafficking of Cuban doctors.
The 3-0 decision marks the first time a federal appellate court has ever held that an international organization’s immunity in U.S. Courts cannot not cover commercial acts related to forced labor. The panel upheld CGL’s position that knowingly benefitting from participation in a forced labor venture is itself a wrongful act.
The doctors’ claims under the Trafficking Victims Protection Act will now proceed. They allege that from 2013 to 2018, PAHO kept $75 million of their wages and served as a financial intermediary to enable Cuba to traffic thousands of medical personnel to forced work programs in Brazil.
For more information, contact Peter Gil-Montllor at 202-789-3960 or pgil-montllor@cuneolaw.com
Forced Labor of Cuban Doctors – Trafficking Victims Protection Act
CGL continues to represent Cuban doctors who were forced to “volunteer” for missions abroad where their movements and communications were monitored and restricted and their wages were confiscated, in violation of the Trafficking Victims Protection Act. In March 2022, CGL won an appeal in the US Court of Appeals for the District of Columbia. In a 3-0 decision, the panel ruled that an international organization cannot invoke immunity if it acts as financial intermediary that receives benefits from forced labor, because such activity is essentially commercial. This is the first such ruling in the history of the Foreign Sovereign Immunities Act.
CGL filed a lawsuit against Bank of America, N.A. in DC Superior Court on behalf of Andrea S. Paterson, alleging the Bank made repeated errors that resulted in missing and terminated Social Security benefits owed to Ms. Paterson’s minor son. The lawsuit alleges that the Bank first refused to process one Social Security payment, then sent erroneous information about Ms. Paterson’s family to the Social Security Administration. Relying on this information, SSA stopped making payments owed to Ms. Paterson’s son from his late father, resulting in almost $10,000 in missed payments since August 2020. The lawsuit alleges that throughout this ordeal, the Bank has acted in a manner that is cynically indifferent to Ms. Paterson’s needs and has failed to correct its errors.
CGL partner Victoria Sims co-authored the cover article in the inaugural issue of a major new legal publication, the Class Action Monthly, with highly respected Philadelphia attorney and COSAL President Robert Kitchenoff. The article, titled “Running Up Against the Illinois Brick Wall,” discusses the pressing need for states without statutes permitting indirect purchaser recoveries under their antitrust laws to seriously consider passing such legislation.
Ms. Sims was awarded the American Antitrust Institute’s Outstanding Litigation Achievement by a Junior Lawyer Award (2017) for her work in the Automotive Parts Antitrust Litigation, 12-md-02311 (E.D. Mich), where she successfully represented automobile dealerships in thirty jurisdictions and recovered approximately $400 million on their behalf. Ms. Sims is currently Interim Co-Lead counsel for Reseller Plaintiffs in the Hard Disk Drive Suspension Assemblies Antitrust Litigation, 3:19-md-02918-MMC (N.D. Cal.) and also represents independent pharmacies and hospitals in Generic Pharmaceuticals Pricing Antitrust Litigation, MDL No. 2724 (E.D. Pa.).
Ms. Sims is also the co-author of “Proposals for Reform” a chapter in Private Enforcement of the Antitrust Law in the United States (edited by Albert A. Foer and Randy M. Stutz) (2012) as well as Remediation and Deterrence: The Real Requirements of the Vindication Doctrine (2013) (George Washington Law Review).
Federal Court Approves Hospital Complaint on Opioids
MDL Judge Dan Aaron Polster issued an order on April 3, 2020, upholding in principal part, hospital claims against manufacturers, distributors and large retail pharmacies who, the complaint allege, were responsible for the national opioid crisis. Judge Polster’s opinion is the third opinion upholding hospitals’ claims. State courts in Tucson, Arizona and in West Virginia have upheld hospitals’ claims. No court has dismissed them.
Pamela Gilbert is the 2019 recipient of the Public Interest Network’s Alumni Achievement Award, which is designed to recognize outstanding contributions to the public interest.
January 7, 2020: Pamela Gilbert is quoted in Consumer Reports magazine about the settlement of a lawsuit involving the death of a two-year-old killed by the tip-over of an Ikea dresser that did not meet voluntary industry safety standards.
https://www.consumerreports.org/furniture/ikea-settlement-furniture-tip-over-death/
CGL on path to prove industry-wide conspiracy rigged prices of generic drugs
August 15, 2019: CGL sustained claims of an overarching conspiracy in the generic drug market against a motion to dismiss filed by 29 generic drugmakers. CGL defeated the drugmakers’ motion by showing that their price-fixing scheme was an overlapping, interdependent conspiracy (an illegal agreement) with a common goal: to make billions of dollars by overcharging pharmacies and patients for basic generic drugs. Price fixing is a federal crime. The federal court in Philadelphia ruled that CGL had discovered enough evidence of an overarching conspiracy to sustain the theory that all the defendant drugmakers should be held jointly liable for their scheme to divvy up drug markets and increase prices.
On April 29, 2019, CGL, working with other law firms around the country, filed a lawsuit on behalf of thirty-seven hospitals in West Virginia and Kentucky against opioid manufacturers, distributors, and their co-conspirators. The case was filed in Marshall County, West Virginia. The Complaint charges that the Defendants committed a variety of illegal acts in marketing and distributing opioids throughout the Appalachian region. The Complaint also seeks damages and injunctive relief on behalf of the hospitals that incurred millions of dollars of increased and unreimbursed costs as a direct result of the opioid epidemic created and engineered by Defendants. This epidemic has taxed the hospitals’ resources and threatened their ability to provide quality health care to all in need. Ron Pellegrino, chief operating officer at West Virginia University Hospitals, which joined the lawsuit, said that the lawsuit was “a big step toward asking the responsible parties be held accountable for the role they played in this crisis.”
http:// https://www.nytimes.com/aponline/2019/04/30/us/ap-us-opioid-lawsuit-hospitals.html
Pamela Gilbert is quoted in a New York Times article about lobbying efforts by Juul regarding e-cigarette regulations.
https://www.nytimes.com/2019/04/28/health/juul-lobbying-states-ecigarettes.html
Pamela Gilbert is quoted in the New York Times about the need to recall an infant product that has led to multiple deaths.
Breaking News:
On March 13, 2019, United States District Judge Vince Chhabria, certified a Nationwide Class of hotels in Cuneo Gilbert & LaDuca’s (“CGL”) case against Expedia under the Lanham Act.
CGL represents a group of hotels challenging Expedia’s misleading advertising tactics, which direct consumers away from hotels that cannot be booked through Expedia or will not pay commissions to it, and toward hotels where Expedia can earn a commission.
“Expedia misleads consumers by publishing fake telephone numbers for hotels and making false statements that they are sold out when, in fact, they have rooms available,” said Joel Davidow from CGL. In so doing, Expedia re-directs consumers to hotels that Expedia is able to book and earn a commission.
The US District Court for the Northern District of California’s ruling granted CGL’s motion to certify a class of hotel owners who are seeking an injunction and will help to put a stop to this practice.
Pamela Gilbert comments on the impact of the federal shutdown on product safety.
“FIGHTING FOR FAIR PAY”
CGL and its Missouri co-counsel fought for a decade to secure fair pay for corrections officers working at Missouri state prisons. These workers, among the lowest paid in the nation, were denied pay for critical work they performed before and after every shift. CGL and its co-counsel won a $113 million jury verdict at trial in 2018. After the Missouri Supreme Court largely upheld the State’s liability, CGL and its co-counsel settled the case for more than the original verdict.
For more information, contact Michael Flannery mflannery@cuneolaw.com.
Provide Or Update Your Information For Hootselle v. MDOC
LET’S WORK TOGETHER
CGL is currently engaged in dozens of cases from product defect class actions to antitrust litigation to civil rights advocacy.
If you feel we could represent you in any of our current cases or in a new case, we would love to hear from you.