EcommerceBytes-NewsFlash, Number 2540 - May 11, 2011     1 of 4

eBay Sellers Lose Appeal in Antitrust Lawsuit

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eBay sellers whose class action antitrust lawsuit against eBay was dismissed last year have lost their appeal. Court documents on show the Ninth Circuit Court of Appeals were satisfied that the district court "did not err in ruling on eBay's motion for summary judgment without delay for further discovery."

The case began when Michael Malone filed a lawsuit in 2007 alleging that eBay "utilizes its nationwide monopoly of the on-line auction market to monopolize the available forms of payment that sellers can use on eBay."

Plaintiffs alleged they suffered antitrust injury through eBay's charging of "supracompetitive" fees for its online auction platform. eBay's counsel, however, said it was "the essence of an overcharge case."

Judge Jeremy Fogel of the U.S. District Court for the Northern District of California granted eBay's motion for summary judgment in March 2010, finding the sellers did not provide him with enough evidence to deny eBay's motion for summary judgment.

In a ruling filed on May 9, 2011, the Appeals Court wrote in part:

"When eBay sought to delay the hearing on its motion for summary judgment and Plaintiffs' motion for class certification, Plaintiffs told the district court in its opposition that they were "confident that the Court has all the evidence and argument it needs to conduct a rigorous analysis of the issues" and criticized eBay for attempting to "avoid the merits phase of this litigation." About one month before the district court's ruling on summary judgment, Plaintiffs received a substantial amount of the "granular" transactional data they had requested from eBay and referenced in their Rule 56(f) declaration, but they did not alert the district court of that development, attempt to supplement their summary judgment evidence, or otherwise seek a delay in the disposition of the motion. And after the district court issued its order granting summary judgment, Plaintiffs did not move the district court for reconsideration. Plaintiffs' communications and conduct may reasonably have led the district court to believe that eBay's motion was ripe for adjudication, and we conclude that plaintiffs cannot now prevail on appeal by arguing that the district court's summary judgment ruling was premature. Under these circumstances, the implicit denial of Plaintiffs' Rule 56(f) motion was not reversible error."

About the author:

Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. She's a widely cited authority on marketplace selling and is author of "Turn eBay Data Into Dollars" (McGraw-Hill 2006). Her blog was featured in the book, "Blogging Heroes" (Wiley 2008). Follow her on Twitter at @ecommercebytes and send news tips to

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