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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

District Court Breathes New Life Into Predatory Pricing and Refusal to Deal Claims After Linkline and Trinko

Posted on February 17, 2010
In Safeway Inc. v. Abbott Laboratories, 2010 WL 147988 (N.D. Cal. Jan. 12, 2010), Judge Wilkins of the United States District Court for the Northern District of California denied defendant Abbott Laboratories motion to dismiss predatory pricing and refusal to deal claims set forth in the second amended complaints filed by Direct Purchasers and Abbott's competitor, SmithKline Beecham Corp...

Come Together: DOJ Approves Merger of Concert-Industry Giants

Posted on February 17, 2010
The U.S. Department of Justice has approved the merger of the world's biggest concert promoter and the world's biggest ticket-seller. The DOJ's review of the proposed merger between Live Nation Inc. and Ticketmaster Entertainment Inc. was closely watched as a potential bellwether of the Obama administration's antitrust enforcement policies...

Delay Caused by Court Injunction Is Not "Antitrust Injury"

Posted on February 17, 2010
Plaintiff flunks Twombly-Sprewell "two-step," as the court's judicial notice of admissions adduced during preliminary injunction discovery discloses facts the court found to be inconsistent with plaintiff's theory of the case. RealNetworks, Inc...

FTC Chair Calls for Ban to Pay-For-Delay Settlements

Posted on January 25, 2010
On January 13, 2010, the Federal Trade Commission released a study critical of 'pay-for-delay' patent litigation settlements by which brand-name drug companies pay generic competitors to keep generic drugs off the market. The same day, the Chairman of the FTC, Jon Leibowitz, and Representatives Chris Van Hollen (D-Md...

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Lower Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

Posted on January 25, 2010
1. Lower Thresholds For HSR Filings On January 19, 2010, the Federal Trade Commission announced revised, lower thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product...

Spirit of Twombly Exorcises Specter of Revived Aguilar Claims

Posted on January 25, 2010
The Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. 06-056059 (9th Cir...

Second Circuit Affirms Dismissal Of Antitrust Class Action Due To Implied Preclusion By The Securities Laws

Posted on December 22, 2009
In Electronic Trading Group, LLC v. Banc of America Securities LLC (In re Short Sale Antitrust Litigation), 2009 WL 4350035 (2d Cir. Dec. 3, 2009), the United States Court of Appeals for the Second Circuit affirmed the dismissal of a putative antitrust class action against certain financial institutions that serve as 'prime brokers' in connection with short sale transactions, on the ground that the federal securities laws precluded application of antitrust law to the matters at hand...

EC Objects to Oracle-Sun Deal

Posted on December 16, 2009
On November 9, 2009, the European Commission ("EC") issued a Statement of Objections ("SO") regarding Oracle Corporation's ("Oracle") proposed acquisition of Sun Microsystems, Inc., ("Sun"). The EC opened an in-depth investigation of the deal in September, shortly after the US Department of Justice's Antitrust Division ("DOJ") cleared the proposed transaction...

Schering-Plough's $41 Billion Acquisition of Merck Clears Antitrust Hurdles With Consent Order

Posted on December 16, 2009
The Federal Trade Commission announced in October 2009 that it will allow Schering-Plough Corporation's proposed $41.1 billion acquisition of Merck & Co., Inc. to proceed, subject to a consent order requiring the parties to each divest certain interests and assets in businesses where the FTC was concerned the transaction would have substantially reduced competition...

U.S. Court Grounds Europe-Japan Air Travel Price-Fixing Case

Posted on December 16, 2009
On October 16, 2009, Judge Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania ruled that the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a ("FTAIA") mandated dismissal of a putative class action brought against foreign airlines Lufthansa, Air France, KLM, and Alitalia under the Sherman Act for allegedly conspiring to fix the price of Europe-to-Japan and Japan-to-Europe passenger air transportation...

Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market

Posted on December 16, 2009
Rather than being "plus factors", allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with collusion. In re California Title Insurance Antitrust Litigation, 2009 U...

European Commission Objects to Oracle-Sun Deal

"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...

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."

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...

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