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The Mulcahy LLP Newsletter is a publication providing news, updates and analysis on Ninth Circuit and California law as it pertains to antitrust, unfair competition, distribution and franchising.


California Courts begin to Reexamine their Outdated Decisions Addressing Vertical Price and other Distribution Restraints under the Cartwright Act.

James MulcahyThirty-five years ago, the California Supreme Court held that vertical price fixing is per se unlawful under California’s antitrust statute. Since then, however, modern economic analysis and federal antitrust jurisprudence have evolved dramatically away from the antiquated common law “restraints on alienation” approach to per se condemnation. For the past thirty years, the California Supreme Court has not had the opportunity to re-evaluate the ancient – and now repudiated – mechanical labeling of private conduct affecting prices as “price fixing,” in per se violation of state antitrust law, even though the actors’ conduct may have “no [established] invidious purpose or harmful economic consequences, and even though the economic results of the conduct may be of net benefit to consumers.”

This article suggests that the time has come for California courts to re-evaluate and modernize their prior judicial precedents, particularly in the areas of (a) both minimum and maximum vertical resale price maintenance; and (b) dual distribution. But, this is not an original thought: within the past four months, two California federal district courts, and the Los Angeles County Superior Court have addressed these issues and the stare decisis effect of prior judicial decisions under California antitrust law.

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Can Franchisors Recover Their Attorney’s Fees For Successfully Compelling Franchisees’ Claims To Arbitration?

kevin adamsCalifornia Courts Appear To Answer This Question In The Negative. Over the summer, the California Second District Court of Appeal (in Roberts v. Packard, Packard & Johnson) and the California First District Court of Appeal (in the unpublished opinion of Abbey v. Fortune Drive Assocs.) rejected requests for attorney’s fees – finding that attorney’s fee provisions only allow fee awards at the conclusion of the underlying dispute, not when a petition to compel arbitration is decided.

This issue of a party’s right to an interim attorney’s fees – i.e., before the underlying merits of the case have been decided – has been debated by the California courts for over 30 years. The California appellate courts have had difficulty reaching a consensus while the California Supreme Court has remained silent.

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California Federal District Court Decision Allows Plaintiff to Aggregate Competitive Effects of Separate Vertical Agreements to Show Antitrust Injury

james-mulcahyIn the antitrust context, a “rimless wheel” – or “hub-and-spoke” – conspiracy is not a general conspiracy but instead amounts to multiple conspiracies between the common defendant – e.g., a distributor – and each of the other defendants – e.g., multiple suppliers.

This means that, absent allegations establishing a “rim” between the spokes, a hub-and-spoke conspiracy is not a single conspiracy, but rather consists of separate conspiracies for each spoke. Nevertheless, in a case of first impression, the United States District Court for the Northern District of California recently held that it is appropriate to aggregate the cumulative anticompetitive effects of multiple independent vertical agreements for the purpose of showing that a common distributor’s conduct was anticompetitive in violation of both Section 1 of the Sherman Act1 and California’s antitrust statute (the Cartwright Act).

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In This Issue

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Competition Law Specialists

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California Courts begin to Reexamine their Outdated Decisions Addressing Vertical Price and other Distribution Restraints under the Cartwright Act: By James M. Mulcahy

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Can Franchisors Recover Their Fees for Compelling Abritration? By Kevin A. Adams

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AT&T Mobility v. AU Optronics Extends The California Cartwright Act’s Expansive Geographical Scope : By James Mulcahy

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Who We Are

Mulcahy LLP is a boutique litigation firm that provides legal services to franchisors, manufacturers and other companies in the areas of antitrust, trademark, copyright, trade secret, unfair competition, and franchise and distribution laws. Our years of hands-on experience as former General Counsels and seasoned litigators provide us with the expertise to achieve our clients' business goals.

Our primary objective is to provide our clients with the highest quality legal services with a small firm touch to efficiently and cost-effectively aid them in achieving their business goals. A true competition, franchise and distribution firm like Mulcahy LLP is a recognized expert in the industry. Our lawyers understand the relationship between litigation strategy and business needs to craft innovative solutions for our clients.

We are committed to providing every client with industry-leading legal services along with the personal attention and efficiency only available from a boutique law firm.

Based in Southern California, the firm serves clients nationally.

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Mulcahy LLP specializes in providing legal services to franchisors, manufacturers, distributors, and other businesses in the following areas:

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Antitrust & Trade Regulation

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Franchise Law

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Trademark, Trade Secret & Copyright Litigation

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Distribution & Manufacturer Litigation

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Unfair Competition

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Corporate Advice/Counseling


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