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Mulcahy LLP Newsletter

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.


Published October 12, 2015
What You See Isn't What You Get: How the Colgate Doctrine May Apply to the Disposable Contact Lens Antitrust Litigation

james-mulcahyCurrently, a Florida federal judge is overseeing multidistrict litigation alleging that four contact lens manufacturers have violated state and federal antitrust laws by implementing supra-competitive vertical pricing policies. In response, the four largest disposable contact lens manufacturers, which together allegedly control 97% of the contact lens relevant product market, are testing the continued viability of the Colgate doctrine. Each manufacturer contends that, because it unilaterally implemented it's ostensibly correlative minimum retail pricing policy in tandem with the other manufactures - i.e., that the firms in this concentrated market have engaged in no more than "conscious parallelism" - their pricing policies are not subject to antitrust scrutiny under Section 1 of the Sherman Act.

The manufactures argue that because the policies were implemented unilaterally, they are immune from antitrust liability despite the fact that collectively their resale price maintenance policies may very well be manifestly anticompetitive and lack any procompetitive justification or redeeming value. This article suggests that, as implausible as it may sound, if the dominant manufacturers in a highly concentrated industry do in fact unilaterally implement vertical price fixing policies that collectively have purely anticompetitive effects, Colgate nevertheless will shield their vertical price restrictions from liability under Section 1 of the Sherman Act and Section 16720 of California's Cartwright Act. At present, there are 56 putative class action lawsuits against these four contact lens manufactures that well may test that conclusion.

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Published August 17, 2015
Restaurant Franchisees Materially Breached Their Franchise Agreements By Refusing To Offer Discount Menu Items

kevin adamsA recent opinion by the U.S. District Court for the District of Colorado in Steak N Shake Enters. v. Globex Co., LLC, 2015 U.S. Dist. LEXIS 81303 (D. Colo. June 23, 2015), illustrates how two Colorado Steak 'n Shake franchisees lost their franchised businesses for refusing to offer patrons the "4 Meals Under $4" promotion required by the franchisor.

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Published September 12, 2015
The Recourse Available to a Prospective Beer Distributor when the Manufacturer Withholds Consent to the Transfer of the Distributorship

Doug LutherCourts continue to debate to what extent a manufacturer can withhold consent to the transfer of a beer distributorship. The answer often varies by jurisdiction and can depend on what the basis was for withholding consent. Most jurisdictions have statutes that to some degree regulate the transfer of a beer distributorship. However, these statutes typically concern the relationship between the manufacturer and current distributor, leaving the prospective distributor with little recourse when a sale is not approved.

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In This Issue

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What You See Isn’t What You Get: How the Colgate Doctrine May Apply to the Disposable Contact Lens Antitrust Litigation: By James Mulcahy

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Restaurant Franchisees Materially Breached Their Franchise Agreements By Refusing To Offer Discount Menu Items: By Kevin Adams

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The Recourse Available to a Prospective Beer Distributor when the Manufacturer Withholds Consent to the Transfer of the Distributorship: By Doug Luther

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Who We Are

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Practice Areas


Mulcahy LLP Consultation

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.

Practice Areas

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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