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Antitrust

Thursday, April 23, 2009

By Elai Katz

"Elai Katz, a partner in Cahill Gordon & Reindel, discusses recent decisions of interest, including a district court's blocking the proposed combination of two of the three major providers of estimation tools for the automotive repair and insurance industry after the FTC raised questions "so serious, substantial, difficult and doubtful" to warrant an administrative trial on the legality of the merger; the Ninth Circuit's decision that a lower court should not have dismissed claims that numerous bilateral exchange agreements between California oil companies unlawfully restrained trade because the agreements' effects on competition should have been examined in the aggregate rather than individually; and the Fourth Circuit's holding that resale price maintenance agreements between pesticide makers and their agents did not constitute concerted action for purposes of a Sherman Act §1 claim".

Franchising

Thursday, April 23, 2009

By David J. Kaufmann

"David J. Kaufmann, senior partner at Kaufmann Gildin Robbins & Oppenheim, writes that in a critical policy shift, the FTC's Revised Franchise Rule contemplates that franchisors may negotiate franchise agreement changes with prospective franchisees that result in terms less favorable for those franchisees than those disclosed in the franchisor's disclosure document. Whether those states featuring franchise registration/disclosure statutes will migrate to the Revised Rule's approach to negotiations is entirely unclear as of this writing. Not a single state has evidenced any intent to do so".

OUTSIDE COUNSEL:

Failed 'Stevens' Prosecution Reveals Need for New DOJ Policy

Thursday, April 23, 2009

By Steven R. Peikin and Jordan T. Razza

"Steven R. Peikin, a partner of Sullivan & Cromwell, and Jordan T. Razza, an associate at the firm, write: The collapse of the case against Alaska Senator Ted Stevens was astonishing, but it was not the first time that DOJ has stumbled badly from its own failure to disclose handwritten notes of witness interviews. So long as the notes are consistent with the related formal interview memoranda, they need not be disclosed, and seldom are - perhaps from the concern that such notes are by their very nature incomplete, unpolished, and more likely to contain errors, which may be a source of defense mischief at trial. Inconsistencies can be subtle, however, and in making determinations as to whether handwritten notes contain inconsistencies, the prosecution plays with fire."

CORPORATE UPDATE: 

Fate of 'Orphan' Works Stirs Opposition To Proposed Google Books Settlement

Thursday, April 23, 2009

By Zusha Elinson

"San Francisco's Internet Archive says the Google books settlement needs an intervention. The digital library wants to intervene in the $125 million settlement with authors and publishers that gives Google the rights to scan and sell books on the Internet. In a Friday letter to the Southern District Judge Denny Chin, the Internet Archive claims that if the settlement is approved, it would give Google a monopoly on so-called orphan works - out-of-print books whose copyright owner cannot be found or is not known."