This post reviews the antirust appeals before the Sixth Circuit during the last two years.  Despite the de novoreview that applies to appeals from dismissals and summary judgment decisions, the Sixth Circuit affirmed in almost all of the eight cases we reviewed.  The vast majority of those cases involved a party’s failure (usually the plaintiff’s) to specifically allege or prove facts material to the antitrust claims; only one case was dismissed on statute of limitations grounds.  The only reversal was in a summary judgment decision where the court noted a trend toward a broad application of the rule of reason, but reversed the district court for excluding evidence from the plaintiffs’ expert because he did not meet the Tampa Electric standard for determining the correct geographic market.  Food Lion, LLC v. Dean Foods Co. (In re Southeastern Milk Antitrust Litig.), 739 F.3d 262 (6th Cir. 2014).  The Court explained that the size of a geographic market is a “question better left for a jury to decide.” 

In another interesting case, the Sixth Circuit also affirmed an appeal from a preliminary injunction of a tying arrangement based on its conclusion that a strong likelihood of coercion, combined with sufficient market power, had reduced the tied product’s value below the seller’s cost.  Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264 (6th Cir. 2015).  There were no post-trial appeals in any antitrust case.

Perhaps more significantly, the Sixth Circuit also denied all three petitions to appeal from a district court’s certification of an antitrust class action.  This perhaps reflects the court’s internalization of the abuse of discretion standard of review in Rule 23(f) petitions.  In re Carpenter Co., 2014 U.S. App. LEXIS 24707, *6 (2014) (citing Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007)).  While Comcast Corp. v. Behrend has had a real impact on antitrust class action decisions, the Sixth Circuit generally trusts that district courts are getting it right.  The Court’s reluctance to intervene in class certification appeals really highlights the significance of the district court decision, and underscores how critical it is to carefully frame the Rule 23(f) petition. Looking at which cases get granted and which are denied can help mold a petition that may be better received at the Court.   

THis post was written by Carroll Bible.