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Corporate & Securities Law

Antitrust Blog Review

Provides legal updates in the antitrust and white collar legal arenas.
By Sheppard Mullin Richter Hampton, LLP

Post Frequency: 1.8/day

Last Entry: March 29, 2011 at 20:21:38

Senate Antitrust Subcommittee Discusses BCS Legality

Posted on August 12, 2009
On November 16, 2008, just after President Barack Obama's election, the president-elect stated in an interview with CBS's 60 Minutes that the Bowl Championship Series' (BCS's) current system should be dismantled and replaced with a playoff system: I think any sensible person would say that, if you've got a bunch of teams who play throughout the season and many of them have one loss or two losses, there's no clear, decisive winner, that we should be creating a playoff system...

The FTC's Latest Remarks In Opposition To Reverse Payment Settlements: Banning Them Would Save Consumers $35 Billion

Posted on July 09, 2009
The Federal Trade Commission's Chairman, Jon Leibowitz, continued the FTC's aggressive campaign against reverse payment settlements (also called "pay-for-delay" or "exclusion" settlements) by delivering a speech at the Center for American Progress entitled "'Pay-for Delay' Settlements in the Pharmaceutical Industry: How Congress Can Stop Anticompetitive Conduct, Protect Consumers' Wallets, and Help Pay for Health Care Reform (The $35 Billion Solution)" (June 23, 2009)...

California Enacts New E-Discovery Rules

Posted on July 09, 2009
On June 29, 2009, Governor Schwarzenegger signed into law California's Electronic Discovery Act, which is effective immediately. These amendments to California's discovery rules are very similar to the recent revisions to the Federal Rules of Civil Procedure, and generally bring California in line with federal e-discovery standards...

Allegations That Domestic Steel Producers Violated Section 1 Of The Sherman Act Through Reciprocal Calls For "Production Discipline" And Output Reduction Constitute "Plus Factors", And Survive Twombly Attack

Posted on July 09, 2009
Standard Iron Works v. Arcelormittal, N.D. ILL., No. 08 C 5214, June 12, 2009 Plaintiff Standard Iron Works ("Standard") commenced a class action against domestic steel producers, as a direct purchaser of steel products. Standard alleged a multi-year antitrust conspiracy to enhance price levels by the coordinated reduction of industry output of steel products in the United States...

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Obama Signs Legislation Extending Limitations On Civil Liability For Amnesty Applicants

Posted on July 09, 2009
On June 19, President Barack Obama signed legislation extending provisions of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 ("ACPERA") that allow successful amnesty applicants under the Department of Justice Antitrust Division's corporate leniency program who provide "satisfactory cooperation" to private plaintiffs to avoid the treble damages and joint and several liability typically available in private antitrust suits...

ICN Adopts Recommended Practices To Improve Merger Analysis

Posted on July 09, 2009
At the eighth annual International Competition Network (ICN) conference in Zurich, Switzerland, the ICN adopted new Recommended Practices for substantive merger analysis. The ICN conference, hosted by the Swiss Competition Commission, was held on June 3-5, 2009...

Twombly Pleading Standards Extend Beyond Antitrust Suits To All Federal Cases

Posted on July 09, 2009
In a recent decision in Ashcroft v. Iqbal, 556 U.S. ____, Slip Op., issued on May 18, 2009, the Supreme Court extended the reach of its decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to a non-antitrust case and expressly affirmed that because Twombly construed Rule 8 of the Federal Rules of Civil Procedure, rather than any antitrust rules, its reasoning was applicable to all civil actions in the federal courts...

Antitrust Enforcement in the Obama Era: Back to Basics -- Vigorously

Posted on June 12, 2009
In her first speech as Assistant Attorney General in charge of the Antitrust Division, Christine Varney called for a return to vigorous antitrust enforcement and repudiated the Bush Administration's eight month old report on how the Antitrust Division would evaluate single firm conduct under Section 2 of the Sherman Act, Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act, United States Department of Justice (2008) ("Report")...

Eighth Circuit Affirms Dismissal of Antitrust Claims Against Amway

Posted on June 12, 2009
The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a 'horizontal conspiracy.' Nitro Distributing, Inc...

Voter-Approved Standing Requirements For California's UCL Apply Only To Class Representatives, Not Class Members, State Supreme Court Rules

Posted on June 12, 2009
In 2004, California voters imposed limits on the state's famously broad Unfair Competition Law. More than four years later, the California Supreme Court has announced exactly where those limits lie.The court's long-awaited decision in In re Tobacco II Cases, S147345, interprets two fundamental, voter-approved amendments to the UCL...

EC Imposes $1.45 billion Antitrust Fine on Intel

Posted on June 12, 2009
On May 13, the European Commission (EC) imposed a fine of €1.06 billion (approximately $1.45 billion) on Intel Corporation for allegedly violating EC Treaty antitrust rules on the abuse of a dominant market position (Article 82) by engaging in anticompetitive practices to exclude competitors from the market for computer chips called x86 central processing units (CPUs), which are considered to be "the main hardware of a computer...

Antitrust Division's Top Economist Addresses Congress On The Newspaper Industry

Posted on June 12, 2009
Carl Shapiro, Deputy Assistant Attorney General for Economics, Antitrust Division, U.S. Department of Justice, provided a Statement, entitled "A New Age for Newspapers: Diversity of Voices, Competition and the Internet" (April 21, 2009), to the Subcommittee of Courts and Competition Policy, Committee of the Judiciary, United States House of Representatives...

The Latest Advance in the Debate Over Reverse Payment Settlements: Will the Supreme Court Punt, Again?

Posted on June 12, 2009
On April 24, 2009, a group of professors of law, economics and business, together with the American Antitrust Institute, the Public Patent Foundation, and AARP (collectively "amici") filed an amicus brief urging the Supreme Court to grant certiorari and reverse the decision of the Federal Circuit Court of Appeals in In re Cirpoflaxacin Hydrochloride Antitrust Litigation, 544 F...

PMPA Franchise Agreement Disavowing Plaintiff's Claim to an Exclusive Market and Geographic Territory Trumps Alleged Oral Commitment

Posted on June 12, 2009
Partner v. ExxonMobil Oil Corp., 08-1590 (6th Cir. May 4, 2009) In 2000, plaintiff Partner & Partner, Inc. entered into a lease/franchise agreement with ExxonMobil to operate a Mobil-branded gasoline station. The lease was pursuant to an ExxonMobil Petroleum Marketing Practices Act (PMPA) franchise agreement, 15 USC Sections 2801-2806...

Ninth Circuit Revives Sherman Act Claim Against Oil Companies, Recasting Conspiracy Under Rule of Reason

Posted on May 13, 2009
Despite the California Supreme Court's conclusion that gasoline purchasers failed even to imply a price-fixing conspiracy among major oil companies, the Ninth Circuit U.S. Court of Appeals has allowed wholesale gasoline purchasers to proceed with similar claims against the same defendants, repackaged under the rule of reason...

PSKS Knocked Out of Court But Not Giving Up the Fight Against Leegin - This and Other Recent Developments in Resale Price Maintenance

Posted on May 13, 2009
Two years ago, PSKS, Inc., dba Kay's Kloset ("PSKS"), lost its antitrust contest with Leegin Creative Leather Products, Inc. at the Supreme Court. Leegin Creative Leather Products, Inc. v. PSKS, Inc. 127 S. Ct. 2705 (2007). PSKS argued to the Court that the 99 year old rule that makes minimum resale price maintenance agreements ("RPM") illegal per se should be upheld...

Sherman Act Claims Against Credit Reporting Agency Equifax Tossed Out of Court for Lack of Antitrust Injury

Posted on May 13, 2009
On April 2, 2009, the Sixth Circuit affirmed the lower court's 12(b)(6) dismissal of an antitrust complaint against national credit reporting agency, Equifax, for lack of antitrust injury. CBC Companies, Inc. v. Equifax, Inc., --- F.3d ----, 2009 WL 860225 (6th Cir...

Agency Relationship Between Pesticide Manufacturers and Distributors Exterminated Allegations of Resale Price Maintenance

Posted on May 13, 2009
On March 24, 2009, the Fourth Circuit Court of Appeals affirmed summary judgment for defendant pesticide manufacturers, dismissing allegations that the manufacturers conspired with their distributors to set minimum resale prices. The Court affirmed a finding that a genuine agency relationship existed between the manufacturers and their distributors, which precluded the existence of an agreement under the Sherman Act...

English High Court Strikes Out "Class Action" Against British Airways

Posted on May 13, 2009
On April 8, 2009, the Chancellor of the High Court (who is the head of the Chancery Division of the High Court of Justice of England and Wales) granted an application by British Airways (BA) to strike out the representative element of a claim for damages arising from its alleged participation in an air cargo cartel...

Chinese Authorities Reject Coke-HuiYuan Acquisition Deal

Posted on May 13, 2009
On March 18, 2009, the Chinese Anti-monopoly Bureau of Ministry of Commerce ('AMB') issued its first rejection in the history of pre-merger filing under the Anti-monopoly Law ('AML'). Two days before the reviewing period deadline of 120 days, Coke-Cola ('Coke') received the official decision issued by AMB rejecting its acquisition proposal of one of the biggest fruit juice manufacturers in China, HuiYuan Juice Group Co...

Is An Exclusive Dealing Contract An Unlawful Covenant Not To Compete?

Posted on April 13, 2009
California has a strict code section that declares that covenants not to compete are unlawful except in limited circumstances.California Business and Professions Code Section 16600: 'Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void...

Plaintiffs Granted Leave to Amend Complaint Alleging Monopolization of Grapes Under Walker Process Theory

Posted on April 13, 2009
Judge Oliver W. Wanger of the Eastern District of California granted plaintiff grape growers leave to amend their antitrust and declaratory relief claims against the California Table Grape Commission (CTGC) based on an allegedly anticompetitive and fraudulent "patent and licensing" scheme by the CTGC and US Department of Agriculture (USDA) in connection with three new varieties of table grapes...

Consumers Lack Standing to Sue Patent Owner for Alleged Anticompetitive Licensing Practices Directed to Its Licensees that Purportedly Resulted in Higher Prices to Consumers

Posted on April 13, 2009
Meyer v. Qualcomm, Inc., Case No. 08cv655 WQH (LSP) (S.D. Cal., March 9, 2009) On March 3, 2009, the District Court for the Southern District of California granted for lack of standing Qualcomm's motion to dismiss federal and state antitrust and unfair competition law claims brought against Qualcomm by an end consumer alleging that Qualcomm's anticompetitive licensing practices resulted in higher prices of a particular type of GSM-based cellular device technology that plaintiff purchased...

Korea Passes Foreign Legal Consultant Act, Opening the Country's Legal Service Market to Law Firms in Foreign Countries that are Parties to Effective Free Trade Agreements with Korea

Posted on April 13, 2009
On March 2, 2009, the Korean National Assembly passed new legislation, the Foreign Legal Consultant Act ("FLCA"), permitting foreign lawyers to register as "foreign legal consultants ("FLCs")" and foreign law firms to open offices in Korea, which are called "foreign legal consulting offices ("FLCOs")" under the Act, provided that the countries of jurisdiction where they are licensed have signed and ratified free trade agreements ("FTAs") with Korea, including liberalization of the legal services market...

Make Me a Supermodel: Canada's Antitrust Laws Get a Whole New Look

Posted on April 13, 2009
Canada has given its competition and foreign investment laws its first major makeover in more than twenty years. On March 12, 2009, Canada's Parliament gave Royal Assent to Bill C-10, the Budget Implementation Act, 2009, and thereby adopted fundamental, significant amendments to the Competition Act and Investment Canada Act...

The Food Fight is Over: Whole Foods and FTC Settle Dispute Over Merger of Organic Markets

Posted on April 02, 2009
After nearly two years of vigorously disputing the competitive impact of Whole Foods Market Inc.'s acquisition of Wild Oats Market, Inc., on March 6, 2009 the Federal Trade Commission announced a settlement with Whole Foods that will substantially restore competition allegedly eliminated by Whole Foods' 2007 acquisition of Wild Oats and resolves the antitrust regulator's charges that the acquisition violated federal antitrust laws...

Supreme Court Restricts "Price-Squeeze" Claims Under Section 2 of the Sherman Act to Situations Where the Defendant has an Antitrust Duty to Deal

Posted on March 11, 2009
In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. Supreme Court, mostly following its decision in Verizon Communications, Inc. v. Law Offices of Curtis V...

Complaint Alleging Conspiracy to Fix LTL Freight Fuel Surcharges Dismissed

Posted on March 06, 2009
Judge William S. Duffey, Jr. of the Northern District of Georgia recently dismissed a complaint brought by direct purchasers of less-than-truckload ("LTL") freight services alleging that defendants, LTL carriers, conspired to fix fuel surcharges from 2003 to 2007...

California Supreme Court Clarifies the Meaning of "Any Damage" as a Standing Requirement Under California's Consumers Legal Remedies Act

Posted on March 06, 2009
California Supreme Court's Kagan analysis is clarified by Proposition 64 spill-over. Meyer v. Sprint Spectrum LP, ___ Cal. __, 2009 WL197560 (January 29, 2009). In Meyer, the plaintiffs filed a class action alleging violations of the California Unfair Competition Law ('UCL'), the California Consumers Legal Remedies Act ('CLRA'), and for declaratory relief...

Chinese Pre-Merger Notifications: Anti-monopoly Bureau of MOFCOM Plans to Launch Series of New Rules

Posted on March 06, 2009
The website of the Anti-monopoly Bureau of the Ministry of Commerce ('Anti-monopoly Bureau') has become 'the must-see site' for antitrust lawyers practicing in China. See http://fldj.mofcom.gov.cn/. Since the beginning of 2009, the Anti-monopoly Bureau has used the site to announce six drafts of various provisions and guidelines, and two transitional guidelines regarding implementation of a new pre-merger filing system under the Anti-monopoly Law...

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