“A apparent contravention clothing is not necessarily an antitrust injury. In fact, the Noerr-Pennington article provides amnesty from antitrust claims to apparent holders.” – Judge John Robert Blakey
On September 20, 2021, Judge John Robert Blakey in the Northern Commune of Illinois issued an assessment in a Walker Process apparent artifice antitrust case abstinent defendants’ motion for arbitrary acumen on their statute of limitations defense. TCS John Huxley America, Inc. v. Scientific Games Corp., No. 1:19-cv-1846, 2021 WL 4264403 (N.D. Ill. Sept. 20, 2021). The assessment accustomed important attempt apropos appliance of the statute of limitations to the “discovery rule” in a Walker Process antitrust case. The author’s firm, Freeborn & Peters, was one of the firms apery the plaintiffs.
The plaintiffs had sued Scientific Games Corp. alleging a abuse of Section 2 of the Sherman Act. The complaint declared that Scientific Games, through its acquired entity, SHFL Entertainment, brought apparent contravention activity in 2009 and 2012 based on fraudulently acquired patents for automated agenda shufflers acclimated in accountant casinos.
In an beforehand agnate case, both Scientific Games and SHFL had been sued in federal commune cloister in Chicago by Shuffle Tech International, additionally alleging antitrust violations for bringing an contravention activity based on fraudulently acquired patents. That case went to balloon in the summer of 2018 afore a jury, which alternate a adjudication for Shuffle Tech in the bulk of $105 million. Beneath the antitrust laws, this board accolade was automatically tripled by the balloon cloister to $315 million. Shuffle Tech was additionally advantaged to its attorneys’ fees and costs. The case ultimately acclimatized for $151 million. Freeborn & Peters had additionally been allotment of the aggregation apery the plaintiffs in the beforehand case.
Having apparent this verdict, which was the tenth better federal board adjudication in the United States in 2018, plaintiffs TCS John Huxley and Taiwan Fulgent accomplished out to apparent admonition on the Shuffle Tech case, affair with them on March 8, 2019. The antitrust case was filed anon thereafter, on March 15, 2019.
The defendants in TCS John Huxley confused to abolish on the area that the case was barred, in part, by the statute of limitations. The cloister denied the motion to abolish in March 2020, but angled analysis on the statute of limitations from analysis on the merits. After plaintiffs produced over 750,000 pages of abstracts and defendants took seven depositions, defendants confused for arbitrary judgment.
The statute of limitations for a complaint brought beneath Section 2 of the Sherman Act is four years from the time of injury. 15 U.S.C. § 15(b). But in the Seventh Circuit, the time that the statute of limitations for antitrust cases begins to run is choleric by the declared analysis rule. There are two prongs to the analysis rule: ability of the abrasion or whether the plaintiff should accept apparent the abrasion in the exercise of due diligence. Beneath the aboriginal prong, accretion occurs “when the plaintiff discovers that ‘he has been afflicted and who acquired the injury.’” In re Copper Antitrust Litigation, 436 F.3d 782, 789 (7th Cir. 2000) (quoting Barry Aviation, Inc. v. Land O’Lakes Municipal Airport Commission, 377 F.3d 682, 688 (7th Cir. 2004)); see additionally Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990).
Judge Blakey acclaimed in his assessment abstinent defendants’ motion to abolish that defendants had argued that the statute of limitations began to accumulate back SHFL sued plaintiffs in 2009 and 2012. See TCS John Huxley America, Inc. v. Scientific Games Corp., No. 1:19-cv-1848, 2020 WL 1678258 **4-7 (N.D. Ill. March 20, 2020). But the cloister acclaimed that a apparent contravention case is different. Although a apparent contravention case causes an anticompetitive abrasion in that it excludes the plaintiff from the market, it does not account “antitrust injury.” Id. at 4. Such exclusion by a apparent contravention activity is acceptable by law. Such an contravention activity is accustomed from antitrust accountability beneath the Noerr-Pennington doctrine, which upholds the appropriate of a affair to address the government, including the courts. See, about Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657 (1969). Judge Blakey acclaimed that the affirmation of apparent rights “implicates the antitrust laws alone if the apparent holder knows the apparent is invalid and contrarily unenforceable and nonetheless uses it to accretion or advance a monopoly.” 2020 WL 1678258at *4. The cloister captivated that, for a Walker Process apparent artifice antitrust case, the “antitrust abrasion stemming from a Walker Process affirmation occurs . . . alone if the declared infringer knows (or has acumen to know) the asserted patents were acquired by artifice or contrarily invalid and unenforceable ….” Id.
In abstinent arbitrary judgment, Judge Blakey went added to focus on the Supreme Court’s affirmation to band abroad antitrust amnesty for a apparent holder bringing an contravention case. In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1969), the Supreme Cloister acclaimed that amnesty from antitrust accountability for a affair bringing a apparent contravention affirmation could be bare abroad alone if the patentee carefully defrauded the apparent appointment to access the patent. Justice Harlan in a acknowledging assessment abundant on this requirement. He acclaimed that the affirmation that there be advised artifice on the apparent appointment was all-important to antithesis the altered behavior of the apparent laws and the antitrust laws. He assured that, if any bygone infringer were accustomed to accompany an antitrust affirmation for some added claiming to the patent, such as accuracy or what he declared as “technical” fraud, such an activity would “impinge” on the action of the apparent laws to animate apparatus and the acknowledgment of that apparatus appropriate by the apparent laws. Alone by acute a award of advised artifice on the apparent appointment to band abroad the amnesty would the adverse attempt of the apparent laws and the antitrust laws be accommodated. Id. at 179-80 (Harlan J. concurring).
Judge Blakey accustomed this affirmation in abstinent defendants’ motion for arbitrary judgment. His key acknowledged award in his assessment was as follows:
A apparent contravention clothing is not necessarily an antitrust injury. In fact, the Noerr-Pennington article provides amnesty from antitrust claims to apparent holders. Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1067-68 (Fed. Cir. 1998). To affected such immunity, a plaintiff charge appearance the apparent holder acquired the apparent through advised artifice or brought the case in bad faith, with ability that the asserted apparent was invalid, unenforceable, or not infringed. See Professional Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993); Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965). Thus, to apperceive they had suffered an antitrust injury, Plaintiffs bare to know, or accept acumen to know, Defendants had carefully affianced in artifice to access the asserted apparent or brought adulterated activity to accumulate [Plaintiff Taiwan Fulgent] TF from aggressive in the market.
2021 WL 4264403 at *3 (emphasis in original).
Undertaking a absolute analysis of the affirmation adduced by the defendants during angled discovery, Judge Blakey assured that “the almanac [did] not acquiesce the Cloister to definitively aphorism that Plaintiffs knew they had suffered an antitrust abrasion afore [the alpha of the four-year statute of limitations period].” 2021 WL 4264403 at *5.
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Jeffery M. Cross is a accomplice with Freeborn & Peters LLP in Chicago and a affiliate of the Activity Practice Group and of the Antitrust and Complex Activity Team.
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