Corporate & Securities Law

"Per Se" or Not "Per Se" - An Historical "Quick Look" at Minimum RPM Under California Law

Posted on November 10, 2009
On June 28, 2007, in Leegin Creative Leather Products, Inc. v. PSKS, Inc.,[1] the United States Supreme Court decided in a 5-4 vote to overrule the long-lived rule in Dr. Miles Medical Co. v. John D. Park & Sons Co.[2]The decision in Dr. Miles, issued in 1911, had a long but checkered life...

Supreme Court's Linkline and Trinko Decisions Result in Tenth Circuit Dismissal of Section 2 Monopolization Case

Posted on November 10, 2009
The Tenth Circuit's recent dismissal of Section 2 monopolization and attempted monopolization claims in Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, -- F.3d ---, 2009 WL 3085882 (10th Cir. Sep. 29, 2009), relied extensively on the Supreme Court's Linkline and Trinko decisions to hold that: (1) a hospital's refusal to allow a physician access to its nephrology facilities does not constitute anticompetitive conduct under Section 2 of the Sherman Act; and (2) the refusal does not constitute an injury of the type the antitrust laws were intended to prevent...

Technology Sector Comes Under Increased Antitrust Scrutiny

Posted on November 10, 2009
Earlier this year, in her first speech as Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, Christine Varney referred to Americans' growing reliance on high-tech solutions in the home and workplace, and stated that her Department 'planned to devote attention to understanding the unique competition-related issues posed by these markets'...

Sixth Circuit Affirms Dismissal of Travel Agent Commission Antitrust Claims

Posted on November 10, 2009
On October 2, 2009, the United States Court of Appeals for the Sixth Circuit ruled in favor of defendant airline carriers[1] accused of conspiring to reduce, cap and ultimately eliminate the base commissions paid to travel agents selling defendants' airline services in In re Travel Agent Commission Antitrust Litigation...

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Debate on Resale Price Maintenance Heats Up

Posted on November 10, 2009
DOJ Antitrust Division Head Christine Varney Offers Guidance on Leegin and Proposes "Structured Rule of Reason Test" For Evaluating RPM Under State Laws When the Supreme Court modified the prohibition against resale price maintenance agreements ("RPM") more than two years ago in Leegin Creative Leather Products v...

A Window into Washington: Report on Hearings for S. 1681 and H.R. 3596, Proposed Legislation to End Health Insurers' Antitrust Exemption

Posted on October 23, 2009
Overview Congress recently conducted hearings on proposed legislation that would repeal the insurance exemption from the federal antitrust laws, the McCarran-Ferguson Act of 1945, as it relates to the health insurance industry.   Witnesses at the hearings articulated different perspectives on the potential repeal...

EC Declines to Follow DOJ's Lead, Opens In-Depth Investigation of Oracle-Sun Deal

Posted on October 12, 2009
On September 3, 2009, the European Commission ("EC") announced that it was opening an in-depth investigation under the EU Merger Regulation of Oracle Corporation's proposed acquisition of Sun Microsystems. This announcement came despite the Department of Justice's ("DOJ") extended review and approval of the same deal without conditions in late August, in addition to DOJ's recent signaling of tougher merger review standards and closer cooperation with European competition authorities...

Court Dismisses Claims Against Shippers Under Twombly And The Filed Rate Doctrine

Posted on October 12, 2009
On August 18, 2009, the District Court for the Western District of Washington dismissed with leave to amend an MDL action against shippers for violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, based on allegations that the shippers colluded to simultaneously increase fuel surcharges, illegally shared vessel capacity, and conspired not to enter into extra-tariff rate agreements with customers...

Air Cargo Class Action to Proceed -- District Court Overrules Twombly Dismissal Recommendation

Posted on October 12, 2009
On August 21, 2009, Judge John Gleeson of the United States District Court for the Eastern District of New York overruled a magistrate judge's recommendation to dismiss antitrust and other claims asserted in a multi-district putative class action against domestic and foreign airlines that provide airfreight-shipping services...

EC Launches Consultation on Distribution Rules

Posted on September 03, 2009
I. Summary On July 28, 2009, the European Commission (EC) launched a formal consultation on the EU rules applicable to distribution agreements. The current key legislation expires on May 31, 2010, and the intention appears to be to adopt the new rules before the end of this year...

What a Babies "R" Us' Class Action Lawsuit Can Teach Us About Successful Distribution Strategies for the Current Legal and Economic Climate

Posted on September 03, 2009
Despite two 2007 Supreme Court decisions that make it more difficult to sue under federal antitrust laws for vertical price restraints, on July 15, 2009, a federal judge in Philadelphia granted class certification to a complaint alleging that Babies "R" Us ("BRU") coerced manufacturers of high-end baby products into preventing Internet dealers from discounting their products...

Ninth Circuit Finds That New Home Buyer Plaintiffs Fail To Satisfy Per Se Tying Element That Amount Of Commerce Not Be "Insubstantial""Zero Foreclosure" Is Less Than "Di Minimus."

Posted on September 03, 2009
Buyers of newly constructed homes in the Boise, Idaho, area filed a federal antitrust class action, alleging that realtors representing owners of undeveloped property tied the sale of the undeveloped lots to realtors' services and commissions that included the new homes constructed on the lots by contractors, as well at the value of the lot...

Plaintiffs' Allegations of Plywood Price-Fixing Conspiracy Found Insufficient to State a Claim Under Twombly

Posted on September 03, 2009
On August 10, 2009, a federal district court in Mississippi granted defendants' motion to dismiss plaintiffs' claims alleging that defendants conspired to fix the prices of plywood in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1...

Ninth Circuit Finds That New Home Buyer Plaintiffs Fail To Satisfy Per Se Tying Element That Amount Of Commerce Not Be "Insubstantial""Zero Foreclosure" Is Less Than "De Minimus."

Posted on September 03, 2009
Buyers of newly constructed homes in the Boise, Idaho, area filed a federal antitrust class action, alleging that realtors representing owners of undeveloped property tied the sale of the undeveloped lots to realtors' services and commissions that included the new homes constructed on the lots by contractors, as well at the value of the lot...

Blue Skies For Continental Airlines In Bid To Join Star Alliance

Posted on August 12, 2009
On July 10, 2009, the U.S. Department of Transportation ("DOT") granted antitrust immunity to Continental Airlines for its planned participation in the Star Alliance, allowing Continental to coordinate international air services with other Star Alliance members without being subject to antitrust liability...

DOJ Formally Aligns Itself With FTC In Opposition To Reverse Payment Settlements

Posted on August 12, 2009
The new Department of Justice, with Christine Varney at the helm of its antitrust division, has changed course to finally (and formally) align itself with the Federal Trade Commission in opposition to reverse payment settlements in the pharmaceutical industry...

Top EU Court Rules That Single Meeting Between Competitors Can Be Breach Of European Antitrust Laws

Posted on August 12, 2009
On June 4, 2009, the European Court of Justice (ECJ) gave judgment on a reference from the Dutch courts on the interpretation of Article 81 of the EC Treaty and ruled that a single meeting between five Dutch mobile phone operators in which the companies had discussed the reduction of commission payments made to dealers for the sale of mobile phone contracts to consumers was sufficient to establish a breach of the EU's competition rules...

Discovery Executive Fined $1.4 Million For HSR Act Violations

Posted on August 12, 2009
In June 2009, media executive John Malone agreed to pay $1.4 million for violating the pre-merger reporting and waiting requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 as amended (HSR Act). The payment settles a complaint for civil penalties that alleges Malone violated the HSR Act in August 2005, when he acquired voting securities of Discovery Holding Co...

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...

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...

FTC and California AG Join in Challenging Reverse Payment Settlements in the Pharmaceutical Industry

Posted on March 06, 2009
On January 29, 2009, the Federal Trade Commission ("FTC"), in conjunction with California's Attorney General, launched its latest challenge to reverse payment settlements in the pharmaceutical industry, Fed. Trade Comm'n et al. v. Watson Pharm...

New Filing Thresholds for HSR Act Premerger Notifications

Posted on February 10, 2009
On January 6, 2009, the Federal Trade Commission announced revised thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.  They will be effective Thursday, February 12, 2009.  Acquisitions that have not closed by the effective date will be subject to the new thresholds...

Ninth Circuit Finds Genuine Issues Relating to Possible Walker Process Fraud Arising from Counsel's Omissions in Patent Application Process

Posted on February 10, 2009
The Ninth Circuit recently affirmed in part and reversed in part the entry of summary judgment for defendant Abbott Laboratories, Inc. ("Abbott") on claims brought under Section 2 of the Sherman Act.  The Ninth Circuit found that genuine issues of material fact existed as to whether Abbot committed Walker Process fraud, one possible "sham" exception to Noerr-Pennington immunity...

Massachusetts District Court Finds That Billing Implied Immunity Does Not Apply To Private Equity Leveraged Buyouts

Posted on February 10, 2009
The U.S. District Court for the District of Massachusetts denied a Rule 12(b)(6) motion brought by defendant private equity firms (“PE Firms”) challenging a putative class action complaint brought by a trust, a public retirement trust fund and five individuals...

The Third Circuit Clarifies the "Rigorous Analysis" Courts Must Apply In Class Certification

Posted on February 10, 2009
On December 30, 2008 the Third Circuit Court of Appeals clarified the standard that district courts in that circuit must apply before permitting a class action to proceed.  See In re Hydrogen Peroxide Antitrust Litigation, No. 07-1680, 2008 U.S. App...

Dual Distribution and Resale Price Maintenance - Rule of Reason or Per Se Analysis?

Posted on February 10, 2009
On August 20, 2008 the US District Court in the Eastern District of Tennessee issued an opinion further defining the legal requirements necessary to plead a vertical resale price maintenance cause of action in Spahr v. Leegin Creative Leather Products, Inc...

EC Imposes Fines of $172m on Marine Hose Companies

Posted on February 10, 2009
On January 28, the European Commission (EC) imposed fines of approximately $172m on five companies for their alleged participation in a cartel for marine hoses between 1986 and 2007 in violation of the ban on anticompetitive agreements in the EC Treaty (Article 81)...

Whole Foods' and FTC's Litigation Far From Checkout

Posted on January 08, 2009
With two cases proceeding and one just getting started concerning Whole Foods' merger with Wild Oats, Whole Foods and the Federal Trade Commission are in for a whole lot of litigation.  First, there is the FTC's Section 7 action on the merits of the merger, which will be heard in an administrative hearing in February 2009...

What Part of "No" Don't You Understand? Unequivocal Refusal to Deal Triggers Statute of Limitations

Posted on January 08, 2009
Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008). Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing medicine in Little Rock, Arkansas.  LRCC brought an action under Sections 1 and 2 of the Sherman Act against Baptist Health, a non-profit corporation that operates five hospitals in Arkansas, including Little Rock...

"Citizen Petition" To FDA Raised Genuine Issues On Sham Exception To Noerr-Pennington Doctrine

Posted on January 08, 2009
On October 14, 2008, a federal district court in New York denied defendant pharmaceutical companies' motion for summary judgment after finding genuine issues of fact existed as to whether 1) the sham exception to antitrust immunity under the Noerr-Penington doctrine applied to defendants' filing of a Citizen-Petition to the FDA to block the approval of generic drug manufacturers' applications; and 2) defendants' Petition in fact delayed the generic manufacturers' applications...

Twombly Meets Leegin. Failure of Plaintiff to Allege "Plausible" Entitlement to Relief Constitutes Failure to Allege "Antitrust Injury."

Posted on January 08, 2009
In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts dismissed a national class action antitrust complaint, borrowing from the recent United States Supreme Court decisions in Bell Atlantic Corp...

The Cartwright Act At 100 - A History Of Complementary Antitrust Enforcement - A Celebration

Posted on January 08, 2009
Please click here to read an article that was published in the Fall 2008 special edition of "Competition," published by the State Bar Antitrust and Unfair Competition Law Section. The article commemorates the 100th anniversary of the enactment of the Cartwright Act, California's analogue to Section 1 of the federal Sherman Act, and maintains that the symmetry between the two acts is essential to promote consumer welfare and allocative efficiency...

Braintree Labs v. Schwarz Pharma, Inc., __ F.Supp.2d __, No. 03-477-SLR, 2008 WL 2944655 (D. Del. July 31, 2008)

Posted on September 12, 2008
In a July 31, 2008 decision, the District Court of Delaware rejected antitrust and unjust enrichment claims by a generic drug manufacturer for failing to satisfy the “sham litigation” exception to the Noerr-Pennington Doctrine. Braintree Labs v...

Ninth Circuit Affirms Dismissal Of Foreign DRAM Purchaser's Price-Fixing Claim For Lack Of Subject-Matter Jurisdiction Under The Foreign Trade Antitrust Improvement Act

Posted on September 12, 2008
On August 14, 2008, the United States Court of Appeals for the Ninth Circuit affirmed a district court's dismissal for lack of subject-matter jurisdiction of a foreign DRAM purchaser's claim of price fixing against defendant DRAM manufacturers.  In re Dynamnic Random Access Memory (DRAM) Antitrust Litig...

International Highlights for August 2008

Posted on August 15, 2008
According to press reports, three agencies and a governing Anti-Monopoly Commission will comprise China's competition enforcement regime when the country's long-awaited Anti-Monopoly Law takes effect on 1 August.  It has been reported that enforcement duties will be split between the Ministry of Commerce, the National Development and Reform Commission and the State Administration for Industry and Commerce...

Franchisee Fails In Tying and Conspiracy Case Against Shell Oil Products

Posted on August 15, 2008
The Ninth Circuit recently affirmed the dismissal of a franchisee's tying and price fixing conspiracy claims against its franchisor, Equilon Enterprises LLC, which does business as Shell Oil Products.  Rick-Mik Enterprises, Inc. v. Equilon Enterprises LLC, __ F...

China's New Merger Rules

Posted on August 15, 2008
Since the 2003 issuance of the Provisions on the Takeover of Domestic Enterprises by Foreign Investor ("Old Rule"), the Ministry of Commerce ("MOFCOM") has handled more than 500 pre-merger filings.  Among those filings, 85% to 95% of mergers were passed after initial review, while the rest triggered expanded review, and in some cases, hearings...

International Highlights for August 2008

Posted on August 15, 2008
According to press reports, three agencies and a governing Anti-Monopoly Commission will comprise China's competition enforcement regime when the country's long-awaited Anti-Monopoly Law takes effect on 1 August.  It has been reported that enforcement duties will be split between the Ministry of Commerce, the National Development and Reform Commission and the State Administration for Industry and Commerce...

California Court of Appeal Drops The Other Shoe: Pass-on Defense Viable

Posted on August 15, 2008
On July 25, 2008, in a case that presented an issue of first impression in California antitrust law, California’s Court of Appeal of the First Appellate District ruled that the pass-on defense is available to defendants accused of price-fixing.  See Clayworth v...

China's New Merger Rules

Posted on August 13, 2008
Since the 2003 issuance of the Provisions on the Takeover of Domestic Enterprises by Foreign Investor ("Old Rule"), the Ministry of Commerce ("MOFCOM") has handled more than 500 pre-merger filings.  Among those filings, 85% to 95% of mergers were passed after initial review, while the rest triggered expanded review, and in some cases, hearings...

Franchisee Fails In Tying and Conspiracy Case Against Shell Oil Products

Posted on August 08, 2008
The Ninth Circuit recently affirmed the dismissal of a franchisee's tying and price fixing conspiracy claims against its franchisor, Equilon Enterprises LLC, which does business as Shell Oil Products.  Rick-Mik Enterprises, Inc. v. Equilon Enterprises LLC, __ F...

California Court of Appeal Drops The Other Shoe: Pass-on Defense Viable

Posted on August 08, 2008
On July 25, 2008, in a case that presented an issue of first impression in California antitrust law, California’s Court of Appeal of the First Appellate District ruled that the pass-on defense is available to defendants accused of price-fixing.  See Clayworth v...

Online Purchaser Lacks Injury-in-Fact Required By Article III

Posted on July 08, 2008
The Ninth Circuit recently affirmed the dismissal of the claims of an antitrust plaintiff on the ground that he lacked the injury-in-fact required for Article III standing.  Gerlinger v. Amazon.com Inc. and Borders Group, Inc., 526 F.3d 1253 (9th Cir...

International Highlights

Posted on July 08, 2008
On June 30, the European Commission ("EC") introduced a settlement procedure for cartels which will allow the EC to settle cartel cases through a simplified procedure.  Under this procedure, alleged cartels participant having seen the evidence in the EC's file can "choose to acknowledge their alleged involvement in the cartel and their liability for it"...

Online Purchaser Lacks Injury-in-Fact Required By Article III

Posted on July 07, 2008
The Ninth Circuit recently affirmed the dismissal of the claims of an antitrust plaintiff on the ground that he lacked the injury-in-fact required for Article III standing.  Gerlinger v. Amazon.com Inc. and Borders Group, Inc., 526 F.3d 1253 (9th Cir...

Hospital Lacks Antitrust Standing To Pursue Claims Against Johnson & Johnson Where, Pursuant To An Agreement With J&J, Hospital Purchased Products From A Distributor

Posted on June 09, 2008
On April 30, 2008, the Ninth Circuit Court of Appeals ruled that Bamberg County Memorial Hospital and Nursing Center ("Bamberg") lacked standing to pursue its antitrust claims against Johnson & Johnson, Inc. ("J & J").  See Delaware Valley Surgical Supply, Inc...

California District Court Finds Joint Venture Parties' Price Setting Not Per Se

Posted on June 09, 2008
Delving into "one of the darkest corners of antitrust law," the federal District Court for the Northern District of California recently determined what standard – the per se rule or the rule of reason – should apply to judge the setting of prices by members of a joint venture...

Hospital Lacks Antitrust Standing To Pursue Claims Against Johnson & Johnson Where, Pursuant To An Agreement With J&J, Hospital Purchased Products From A Distributor

Posted on June 09, 2008
On April 30, 2008, the Ninth Circuit Court of Appeals ruled that Bamberg County Memorial Hospital and Nursing Center ("Bamberg") lacked standing to pursue its antitrust claims against Johnson & Johnson, Inc. ("J & J").  See Delaware Valley Surgical Supply, Inc...

Grocery Store Can Sell Below-Cost Discounts On Gas With Grocery Purchases After Tenth Circuit Reverses Jury Verdict For Competitors

Posted on June 09, 2008
On April 25, 2008, the Tenth Circuit of the United States Court of Appeals reversed a jury's judgment in favor of competitors who challenged a grocery store's practice of offering below-cost discounts on gasoline conditioned on the purchase of a qualifying amount of groceries sold in the store...

FTC Grants Petition To Permit Resale Price Maintenance

Posted on June 09, 2008
The willingness of federal enforcement agencies to lift resale price maintenance ("RPM") prohibitions in light of the Supreme Court's decision holding RPM was no longer per se illegal was demonstrated recently by the FTC.  In re Nine West Group, Inc...

California District Court Finds Joint Venture Parties' Price Setting Not Per Se

Posted on June 05, 2008
Delving into "one of the darkest corners of antitrust law," the federal District Court for the Northern District of California recently determined what standard – the per se rule or the rule of reason – should apply to judge the setting of prices by members of a joint venture...

Grocery Store Can Sell Below-Cost Discounts On Gas With Grocery Purchases After Tenth Circuit Reverses Jury Verdict For Competitors

Posted on June 05, 2008
On April 25, 2008, the Tenth Circuit of the United States Court of Appeals reversed a jury's judgment in favor of competitors who challenged a grocery store's practice of offering below-cost discounts on gasoline conditioned on the purchase of a qualifying amount of groceries sold in the store...

FTC Grants Petition To Permit Resale Price Maintenance

Posted on June 05, 2008
The willingness of federal enforcement agencies to lift resale price maintenance ("RPM") prohibitions in light of the Supreme Court's decision holding RPM was no longer per se illegal was demonstrated recently by the FTC.  In re Nine West Group, Inc...

D.C. Circuit Overturns FTC Rambus Decision

Posted on May 07, 2008
The antitrust litigation against Rambus for failing to disclose patents to JEDEC, a standard setting body (SSO), took another twist last week.  In Rambus v. FTC, No. 07-1086 (D.C. Cir. 2008), the court unanimously set aside the FTC decision holding that Rambus' conduct constituted monopolization under Section 2 of the Sherman Act...

Defendant Sleep Mask Manufacturer Can Sleep Well After Court Puts Exclusive Dealing Claims To Bed

Posted on May 07, 2008
On March 31, 2008, a federal district court in Ohio granted summary judgment after finding insufficient evidence to support a claim that Respironics, Inc., a manufacturer of positive airway pressure devices ("PAPs") and masks used to treat obstructive sleep apnea ("OSA"), entered into exclusive deals with sleep labs and durable medical equipment suppliers ("DMEs") to prescribe Respironics' products to the exclusion of others...

Not Its Beer of Choice: Canada's Competition Commissioner Cannot Stop the Tap on Beer Merger and Must Swallow Own Production Subpoenas

Posted on May 07, 2008
Over the last several months, Canada's head federal antitrust enforcer, the Commissioner of Competition, has lost three rounds of disputes with Labatt Brewing Company Limited.  Labatt is the second largest brewery in Canada.  The first two losses relate to the Commissioner's attempt to temporarily block Labatt from completing its merger with Lakeport Brewing Limited Partnership in order to give the Commissioner more time to review the deal...

D.C. Circuit Overturns FTC Rambus Decision

Posted on May 07, 2008
The antitrust litigation against Rambus for failing to disclose patents to JEDEC, a standard setting body (SSO), took another twist last week.  In Rambus v. FTC, No. 07-1086 (D.C. Cir. 2008), the court unanimously set aside the FTC decision holding that Rambus' conduct constituted monopolization under Section 2 of the Sherman Act...

Competitors of Copier Equipment Provider Entitled to a "Kodak Moment" in Alleging a Single Provider Relevant "Aftermarket" in Avoiding a Motion to Dismiss

Posted on May 07, 2008
Competitors of a copier equipment provider, IKON Office Solution ("IKON") alleged that defendant IKON used "fraudulent practices" to secure and lengthen its customer contracts, and thus reducing the ability of competing copier equipment providers to contest for "aftermarket" business...

Defendant Sleep Mask Manufacturer Can Sleep Well After Court Puts Exclusive Dealing Claims To Bed

Posted on May 07, 2008
On March 31, 2008, a federal district court in Ohio granted summary judgment after finding insufficient evidence to support a claim that Respironics, Inc., a manufacturer of positive airway pressure devices ("PAPs") and masks used to treat obstructive sleep apnea ("OSA"), entered into exclusive deals with sleep labs and durable medical equipment suppliers ("DMEs") to prescribe Respironics' products to the exclusion of others...

Not Its Beer of Choice: Canada's Competition Commissioner Cannot Stop the Tap on Beer Merger and Must Swallow Own Production Subpoenas

Posted on May 07, 2008
Over the last several months, Canada's head federal antitrust enforcer, the Commissioner of Competition, has lost three rounds of disputes with Labatt Brewing Company Limited.  Labatt is the second largest brewery in Canada.  The first two losses relate to the Commissioner's attempt to temporarily block Labatt from completing its merger with Lakeport Brewing Limited Partnership in order to give the Commissioner more time to review the deal...

International Highlights

Posted on May 06, 2008
On May 5, the European Commission announced that it had sent a statement of objections to a number of suppliers of marine hoses.  Marine hoses are used by customers in the oil and defense industries to transport oil and petroleum products between tankers and storage facilities...

European Commission Publishes Proposals to Encourage Private Antitrust Litigation in the EU

Posted on April 07, 2008
On April 3, the European Commission ("EC") published its long-awaited "White Paper" or policy proposals to increase the number of private antitrust damages actions in the EU.  The White Paper sets out suggestions for concrete measures "to help victims of EU competition law infringements to get compensation for the harm they have suffered"...

DOJ Statement On Satellite Radio Merger Provides Guidance For Future Mergers

Posted on April 07, 2008
Satellite radio is a fairly recent phenomena.  Unlike the usual AM/FM radio, satellite radio offers hundreds of commercial free channels.  It includes niche music formats (e.g. 60s music), out of market sporting events, and exclusive programming such as Howard Stern or Oprah & Friends...

Private Civil Lawsuits Under China Anti-Monopoly Law

Posted on April 07, 2008
The Anti-monopoly Law of China (“AML”) will come into effect soon and accompany the approaching Beijing Olympics.  As preparation for this highly significant law , the Implementation Rules of AML (“Implementing Rule”) have been extensively discussed within the anti-monopoly authorities...

Antitrust Class Action Monopolization Claims Against eBay Will Proceed; Tying Arrangement Claims Dismissed

Posted on April 07, 2008
On March 4, 2008, a federal district court in San Jose, CA, refused to dismiss an antitrust class action complaint against eBay, the online auction company, brought by online auction participants seeking to represent a class of all eBay auction sellers and a subclass of all auction sellers on eBay who accept PayPal as the method of online payment...

European Commission Publishes Proposals to Encourage Private Antitrust Litigation in the EU

Posted on April 07, 2008
On April 3, the European Commission ("EC") published its long-awaited "White Paper" or policy proposals to increase the number of private antitrust damages actions in the EU.  The White Paper sets out suggestions for concrete measures "to help victims of EU competition law infringements to get compensation for the harm they have suffered"...

DOJ Statement On Satellite Radio Merger Provides Guidance For Future Mergers

Posted on April 07, 2008
Satellite radio is a fairly recent phenomena.  Unlike the usual AM/FM radio, satellite radio offers hundreds of commercial free channels.  It includes niche music formats (e.g. 60s music), out of market sporting events, and exclusive programming such as Howard Stern or Oprah & Friends...

Private Civil Lawsuits Under China Anti-Monopoly Law

Posted on April 07, 2008
The Anti-monopoly Law of China (“AML”) will come into effect soon and accompany the approaching Beijing Olympics.  As preparation for this highly significant law , the Implementation Rules of AML (“Implementing Rule”) have been extensively discussed within the anti-monopoly authorities...

Antitrust Class Action Monopolization Claims Against eBay Will Proceed; Tying Arrangement Claims Dismissed

Posted on April 07, 2008
On March 4, 2008, a federal district court in San Jose, CA, refused to dismiss an antitrust class action complaint against eBay, the online auction company, brought by online auction participants seeking to represent a class of all eBay auction sellers and a subclass of all auction sellers on eBay who accept PayPal as the method of online payment...

International Highlights

Posted on April 07, 2008
On March 12, the UK's House of Lords (HoL) allowed an appeal by Ian Norris, former chief executive of the Morgan Crucible Group, against a decision of the High Court which had held that dishonest price-fixing is capable of amounting to the English common law offence of conspiracy to defraud and so is an extradition offence...

Competitors of Copier Equipment Provider Entitled to a "Kodak Moment" in Alleging a Single Provider Relevant "Aftermarket" in Avoiding a Motion to Dismiss

Posted on March 12, 2008
Competitors of a copier equipment provider, IKON Office Solution ("IKON") alleged that defendant IKON used "fraudulent practices" to secure and lengthen its customer contracts, and thus reducing the ability of competing copier equipment providers to contest for "aftermarket" business...

FDA Citizen Petition Found To Be Objectively Baseless

Posted on March 12, 2008
FDA regulations provide that anyone can file a "Citizen Petition" to request that the FDA take, or refrain from taking, administrative action based on genuine safety, scientific, or legal concerns.  In recent years, owners of branded drugs approved by the FDA have sometimes filed Citizen Petitions on the eve of FDA approval of generic equivalents...

The Fourth Circuit Court of Appeals Upholds Most of the State of Washington's Regulations on the Sales of Alcoholic Beverages

Posted on March 12, 2008
On January 28, 2008, the Fourth Circuit Court of Appeals reversed a federal district court decision that had struck down most of the regulations on the sales of alcoholic beverages imposed by the State of Washington in Costco Wholesale Corp. v. Maleng et al...

FTC Finds Patent Holder's Refusal to Honor Licensing Agreements on Technology Adopted by Standard Setting Organization Unlawful

Posted on February 08, 2008
Businesses that participate in Standard Setting Organizations ("SSOs") and seek adoption of their technologies in standards now arguably face additional exposures.  Extending a line of previous SSO patent "hold-up" cases, including Dell, Unocal, and Rambus, the Federal Trade Commission has used its most recent SSO case to define a broader potential scope for liability under Section 5 of the FTC Act, 15 U...

Court Dismisses Short Sellers' Price-Fixing Claims

Posted on February 08, 2008
In one of the first cases to apply the U.S. Supreme Court's opinion in Credit Suisse Securities (USA) v. Billing, 127 S.Ct. 2383 (2007), a New York District Court found  "clear incompatibility" between federal securities and antitrust laws and dismissed allegations that brokerage firms fixed prices charged to short sellers...

In a Case Alleging an Illegal Tie "Zero Foreclosure" Means "Zero Case" Duh

Posted on February 07, 2008
Dudley v. Aspen Realty, Inc., D. Idaho, Case No. CV-04-121-S-BLW, 11/30/07Defendants were realtors in Boise, Idaho.  The realtors based their commission charges on the price of both an undeveloped lot, and the price of the home to be built on the lot at a subsequent time...

Two Recent Circuit Court of Appeals Decisions Addressing Standing Under The Antitrust Laws

Posted on February 07, 2008
In a Fourth Circuit opinion, the court upheld the standing to sue of a plaintiff (former owner of WordPerfect) assertedly injured by defendant as a means to inflict harm to competition in the defendant's market (operating systems) even though plaintiff did not participate in defendant's market...

New Filing Thresholds for HSR Act Premerger Notifications

Posted on February 07, 2008
The Hart-Scott-Rodino Antitrust Improvements Act of 1976 imposes premerger notification and waiting period obligations on transactions over a certain size, where the parties are over a certain size, before those transactions may be completed.  Each "person" who is a party to an HSR-reportable deal must file an HSR notification with the DOJ and the Federal Trade Commission...

AdBriefs

Posted on January 10, 2008

Advertising & Promotions Law

Posted on January 10, 2008

Yes, We Really Do Have Amnesty

Posted on January 09, 2008
District Court Enforces DOJ Corporate Leniency Agreement, Dismisses Indictment Against Stolt-Nielsen And Company ExecutivesOn November 29, 2007, a federal district court in Philadelphia dismissed an indictment charging Stolt-Nielsen, S.A., two of its subsidiaries and two of its executives with violations of Section 1 of the Sherman Act in the parcel tanker shipping industry...

Quizno's Franchisees Do Not "Get It Their Way"

Posted on January 09, 2008
Antitrust, Fraud And RICO Claims Are Dismissed Westerfield v. The Quizno's Franchise Company, LLC (E. D. Wis., November 5, 2007).Quizno's operates a chain of fast food restaurants known for their toasted submarine sandwiches.  Plaintiffs, twelve Wisconsin franchisees brought an action under the Sherman Act, RICO, the Wisconsin Anti-Trust Act, and other Wisconsin consumer protection laws in the United States District Court for the Eastern District of Wisconsin, alleging, inter alia, that Quizno's "fraudulently induced plaintiffs and the Class to purchase franchises and thereafter exploited their control and economic power in order to extract exorbitant and unjustifiable payments...

International Highlights

Posted on January 09, 2008
On 19 December 2007, the UK's Office of Fair Trading ("OFT") announced that it had charged three UK businessmen with cartel offences under the Enterprise Act 2002.  The three individuals were charged with dishonestly participating in a cartel to allocate markets and customers, restrict supplies, fix prices and rig bids for the supply of marine hose and ancillary equipment in the UK...

Bankruptcy and Restructuring Law

Posted on January 09, 2008

Corporate & Securities Law

Posted on January 08, 2008

ESOP Law

Posted on January 07, 2008

Fashion & Apparel Law

Posted on December 24, 2007

FCC Law

Posted on December 15, 2007

Financial Institution Law

Posted on December 07, 2007

Court Dismisses Indictment Against Stolt-Nielsen

Posted on December 06, 2007
On November 29, 2007 a federal court in Philadelphia issued a decision granting the motion of Stolt-Nielsen (Stolt), a Luxembourg tanker shipping company, to dismiss a grand jury indictment against it for violations of Section 1 of the Sherman Act alleging it conspired with its competitors to allocate customers among them...

Ninth Circuit Holds Price Squeeze Claims Survive Trinko

Posted on December 06, 2007
A price squeeze occurs when a vertically integrated company with a monopoly in the upstream market sets its wholesale prices to its customers so high that they cannot compete effectively with it at the downstream level.  In some circumstances, price squeezes may constitute exclusionary conduct under Section 2 of the Sherman Act...

The Rules are the Rules: DOJ Obtains Fine for Insubstantial Noncompliance with HSR Act

Posted on December 06, 2007
In October, the Department of Justice obtained a half a million dollar penalty against Iconix Brand Group for omitting "4(c)" documents in its Hart-Scott-Rodino Act premerger notification.  For lawyers and companies involved in mergers, acquisitions and joint ventures, the DOJ's actions make clear that HSR filings, including their more technical aspects, are no minor matter and call for diligence...

The Current Anti-monopoly System of China and Impact of New Anti-monopoly Law

Posted on November 14, 2007
The new Anti-monopoly Law of China (“AML”) was issued on August 30, 2007, although it will not come into effect until August 2008.  During the one year time window, there is no doubt that the existing enforcement system of anti-monopoly will be greatly impacted and amended by this AML...

Monopoly Money

Posted on November 14, 2007
Bundled discounts, the practice of selling multiple products for a single price, are ubiquitous in America, ranging from Happy Meals at your local McDonald's to a single price for telephone, Internet and television service from your local cable or satellite provider...