Corporate & Securities Law

41 State Attorneys General Ask Congress to Prohibit Resale Price Maintenance

Posted on October 29, 2009
In letters dated October 27, 2009 (State AG Letter re HR 3190; State AG Letter re S 148), 41 state attorneys general wrote to Congress asking them to overrule Leegin Creative Leather Product, Inc. v. PSKS, Inc., 551 U.S. 877 (2007).  In Leegin, the Supreme Court held that resale price maintenance — the practice in [...

Three Former Marsh Executives Acquitted of Donnelly Act Violations

Posted on October 26, 2009
Joseph Peiser, Greg Doherty and Kathleen Drake, former Marsh executives, were acquitted after an 11-month bench trial before Justice James Yates of violating New York’s antitrust law — the Donnelly Act.  They were acquitted of bid-rigging in connection with the sale of insurance policies...

Packaged Ice Indirect Purchasers Assert Their Rights As Victims in the Prosecution of Arctic Glacier and Its Executives

Posted on October 16, 2009
Levitt & Kaizer, on behalf of the class of indirect purchasers in In re Packaged Ice Antitrust Litig., MDL No. 1952 and the individual class representatives, asserted today the class’ rights as victims under the Crime Victims Rights Act (18 U...

Arctic Glacier and Three Former Executives Plead Guilty in the Packaged Ice Cartel

Posted on October 14, 2009
The Antitrust Division’s press release:

To access blog feed reader register for free. (You will also learn about new ways to read and access the freshest law blogs.)

The Remaining Apple/Google Common Director Resigns from Google’s Board

Posted on October 13, 2009
Google announced today that Arthur D. Levinson resigned from its board of directors.  However, Mr. Levinson remains on Apple’s board of directors.  Mr. Levinson was the remaining common director on the Google and Apple boards.  As reported in the June 3, 2009 Post, Eric D...

FTC and DOJ Urge Reversal in American Needle v. NFL

Posted on September 30, 2009
As noted in the June 29, 2009 Post, the Supreme Court granted certiorari to review the Seventh Circuit’s decision in American Needle v. Nat’l Football League.  As explained in the September 4, 2008 Post, American Needle applied the Copperweld doctrine to a sports league’s joint licensing scheme for the first time...

LEVITT & KAIZER Files Amended Class Action Complaint on Behalf of Indirect Purchasers in In Re Packaged Ice Antitrust Litigation

Posted on September 17, 2009
On September 15, 2009, LEVITT & KAIZER and THE LAW OFFICES OF MAX WILD (interim lead counsel for the class) and THE PERRIN LAW FIRM (liaison counsel) filed an amended class action complaint seeking recovery on behalf of packaged ice consumers in 47 states and the District of Columbia...

MLB Grants Exclusive License for Baseball Cards to Topps

Posted on August 12, 2009
On August 6, 2009, the New York Times reported that Major League Baseball granted an exclusive license to Topps for baseball cards.  To justify its legality under the antitrust laws, the MLB Executive Vice President is quoted as having relied on the recent Seventh Circuit decision in American Needle v...

Google Director Resigns from Apple Board Because of Competition Concerns

Posted on August 03, 2009
Eric Schmidt, Google’s CEO, resigned today from Apple’s board of directors because the increased competition between Google and Apple raised conflicts for him that precluded his participation in many of Apple’s business decisions.  It is unclear whether his resignation was in response to an inquiry by the FTC into Google’s and Apple’s interlocking directorates first [...

Scrap Metal Dealers Acquitted of Price-Fixing

Posted on June 30, 2009
In another blow to the Antitrust Division’s criminal section, two scrap metal dealers were acquitted of price-fixing on June 25, 2009.  The jury returned its verdict in less than four hours.  As reported in the November 16 and March 15, 2008 Posts, the Antitrust Division has lost a number of high profile price-fixing trials including [...

Supreme Grants Certiorari to Review NFL’s Licensing Program in American Needle

Posted on June 29, 2009
The Supreme Court granted certiorari to review American Needle Inc. v. Nat’l Football League, No. 07-4006, 2008 WL 3822782 (7th Cir. Aug. 18, 2008). As explained in the September 4, 2008 Post, that case applied the Copperweld doctrine to a sports league for the first time...

LEVITT & KAIZER Group Appointed Lead Counsel for Indirect Purchaser Class in the Packaged Ice Antitrust Litigation

Posted on June 02, 2009
Yesterday, the United States District Court for the Eastern District of Michigan appointed the LEVITT & KAIZER group interim lead counsel, in particular Matthew S. Wild, Richard Levitt, Max Wild and John M. Perrin, for the indirect purchaser class in In re Packaged Ice Antitrust Litigation, MDL 1952...

A Robinson-Patman Act Claim Succeeds at Trial

Posted on May 15, 2009
On April 27, 2009, a district judge ruled in favor of a Robinson-Patman Act plaintiff and granted injunctive relief.  Feesers, Inc. v. Michael Foods, Inc., 2009 WL 1138126 (M.D. Penn. Apr. 27, 2009).  On remand after the Third Circuit (498 F.3d 206 (3d Cir...

Maryland Enacts the First Leegin Repealer Statute

Posted on May 04, 2009
Maryland has amended its antitrust law to make resale price maintenance agreements per se illegal, thus overruling Leegin Creative Leather Products v. PSKS, 127 S.Ct. 2705 (2007).  In Leegin, the Supreme Court overruled Dr. Miles Medical Co. v. John D...

Sham Litigation Allegations Held Sufficient to Avoid Dismissal under Noerr-Pennington Doctrine

Posted on March 08, 2009
As examined in the February 17, 2009 Post, there have been a number of recent appeallte decisions reviewing successful Noerr-Pennington immunity defense assertions.   Alternative Electrodes, LLC v. EPMI, Inc., No. 08-CV-1247 (JFB)(ETB), 2009 WL 250474 (E...

FTC Settles Challenge to Whole Foods’ Acquisition of Wild Oats

Posted on March 06, 2009
Today the FTC announced a settlement with Whole Foods that requires Whole Foods to divest 32 supermarkets in 17 geographic markets.  The FTC also required to Whole Foods to transfer Wild Oats’ intellectual property, including the “Wild Oats” name...

The Supreme Court Unanimously Rejects Price Squeeze Claim

Posted on February 26, 2009
Yesterday, the Supreme Court in Pacific Bell Telephone Co. v. Linkline Communications, Inc., No. 07-512 (Feb. 25, 2009) (LinkLine decision  here) unanimously rejected a price squeeze claim alleged under Section 2 of the Sherman Act.  Pac Bell is a DSL transport service and retail service provided...

The Supreme Court Seeks Solicitor General’s View of Whether to Grant Certiorari in a Case that Shielded the NFL’s Licensing Arrangement from Antitrust Scrutiny

Posted on February 24, 2009
The September 4, 2008 Post examined a recent Seventh Circuit decision that held that the NFL’s was immune under the antitrust laws for its licensing of team logos on headwear to Reebok.  American Needle Inc. v. Nat?l Football League, No. 07-4006, 2008 WL 3822782 (7th Cir...

The Tenth Circuit Rejects Deer Valley Ski Rental Store’s Claims for Monopolization and Attempted Monopolization against Ski Resort

Posted on February 23, 2009
On February 18, 2009, the United States Court of Appeals for the Tenth Circuit affirmed dismissal of a complaint filed by a ski rental store against the Deer Valley, Utah ski resort operator with its own ski rental operation alleging monopolization and attempted monopolization in violation of Section 2 of the Sherman Act...

The Second and Ninth Circuits Uphold Antitrust Immunity in Three Recent Cases

Posted on February 17, 2009
In January 2009, the United States Court of Appeals for the Second Circuit affirmed a district decision granting a motion to dismiss an action alleging that defendants “conspired to influence the FCC.”  The Court held that such activity cannot give rise to antitrust liability under the Noerr-Pennington doctrine...

The Second Circuit Refuses to Enforce Bar to Collective Action Provision in Arbitration Agreements

Posted on February 06, 2009
In a significant victory to antitrust victims, the United States Court of Appeals for the Second Circuit refused to enforce a bar in arbitration contracts that prohibited collective actions.  In re American Express Merchants? Litigation, No. 06-1871-cv (2d Cir...

AT&T Settles Civil Contempt Claim with the DOJ for $2 Million

Posted on January 14, 2009
AT&T settled a civil contempt claim with the DOJ in connection with its failure to comply with the divestiture requirements in a consent decree governing its acquisition of Dobson Communications Corporation.  In particular, AT&T failed to keep confidential customer information relating to the businesses that had to be divested...

FTC Seeks Hold Separate Order on Remand Against Whole Foods

Posted on January 13, 2009
On January 12, 2009, the FTC sought a hold separate order against Whole Foods on remand from the D.C. Circuit’s reversal of the lower court’s denial of a preliminary injunction.  During the pendency of its administrative proceeding, the FTC seeks an order that enjoins Whole Foods from further integration of Wild Oats’ assets, rebranding of [...

Investment Funds Fined for Violating HSR Pre-Merger Notification Requirements

Posted on December 22, 2008
Antitrust Division’s press release: “WASHINGTON ? Two related investment funds will pay civil penalties totaling $800,000 to settle charges that they violated premerger reporting requirements, the Department of Justice announced today. The Department’s Antitrust Division, at the request of the Federal Trade Commission, filed a civil lawsuit today in U...

Whole Food’s Sues FTC to Enjoin Administrative Proceedings

Posted on December 11, 2008
On December 8, 2008, Whole Foods brought an action in federal court claiming that the FTC’s administrative process is unconstitutional as applied to it.  (Whole Foods Complaint)  Whole Foods claims that the FTC has prejudged the FTC’s challenge to its merger with Wild Oats...

Second New York Criminal Trial Begins Against Marsh Executives

Posted on December 08, 2008
On December 2, 2008, three Marsh executives went on trial in the Supreme Court of the State of New York (New York County) on charges of violating the Donnelly Act in connection with bid rigging of insurance policies.  As you may recall (and discussed on the February 22, 2008 Post), two Marsh executives were convicted [...

Whole Food’s Denied Rehearing But D.C. Circuit Amends Its Earlier Decision

Posted on December 01, 2008
On November 21, 2008, the United States Court of Appeals for the D.C. Circuit denied rehearing and rehearing en banc in FTC v. Whole Foods with Judge Kavanaugh dissenting.  Judge Kavanaugh had dissenting in the original decision.  The original opinion is linked to the July 29, 2008 Post, which also analyzes it...

FTC Challenges Proposed Merger Between Firms that Provide Electronic Systems to Estmate the Cost of Collision Repairs

Posted on November 30, 2008
On November 25, 2008, the FTC issued an administrative complaint challenging the proposed merger between CCC Information Services and Mitchell International.  The FTC alleges that “the merger would hinder competition in the market for electronic systems used to estimate the cost of collision repairs, known as ?estimatics,? and the market for software systems used to [...

Court Rejects DOJ’s Request for Prison Time for Two Defense Contractors

Posted on November 30, 2008
In November 2008, the United States District Court for the District of Maryland sentenced two defense contractors to probation who had pleaded guilty in connection with a conspiracy to steal confidential bidding information from a competitor.  The conspiracy concerned contracts to supply the Department of Defense with jet fuel abroad...

DOJ Loses Another Criminal Price Fixing Trial

Posted on November 16, 2008
On November 10, 2008, the DOJ Antitrust Division’s criminal section lost another high profile criminal price fixing trial. This time the individual defendant was acquitted of alleged participation in the highly publicized marine hose cartel that had resulted in numerous guilty pleas...

Google Abandons Deal with Yahoo in Response to Antitrust Concerns

Posted on November 05, 2008
On July 2, 2008, this blawg reported that the Antitrust Division issued civil investigative demands to investigate the potential competitive effects from an agreement between Google and Yahoo that would allow Google to post advertisements on Yahoo in exchange for part of the revenue...

DOJ Uses Familiar Delay Tactics to Try to Gain an Unfair Advantage in the Beef Packing Merger Litigation

Posted on November 02, 2008
It appears that in United States v. JBS, S.A., the government is using the same tactics that it did in United States v. UPM-Kymmene Oyj — both of which were brought in the United States District Court for the Northern District of Illinois.   The government is hoping to kill the deal by trying to [...

DOJ Clears the Merger of Northwest and Delta Airlines

Posted on October 29, 2008
 Excerpt of the Antitrust Division’s press release: WASHINGTON ? The Department of Justice’s Antitrust Division issued the following statement today after the Division announced the closing of its investigation of the proposed merger of Delta Air Lines Inc...

DOJ and 13 States Sue to Protect Cattle Suppliers and Beef Consumers

Posted on October 24, 2008
On October 20, 2008, the Antitrust Division, Colorado, Iowa, Kansas, Minnesota, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas and Wyoming sued to enjoin JBS Beef?s acquisition of National Beef Packing in the United States District Court for the Northern District of Illinois...

Class Action Complaint States Claims for Section 2 Violations Against Apple and AT&TM Over IPhone

Posted on October 20, 2008
In In re Apple & AT&TM Antitrust Litigation, No. 07-CV-05152-JW (N.D. Cal. Oct. 1, 2008), plaintiffs alleged that the arrangement in which the Apple IPhone worked exclusively with AT&TM not only for the initial two-year contract period but also for three additional years after their contracts expired with AT&TM violated Section 2 of the Sherman [...

After Excluding an Economist’s Expert Report, the Second Circuit Upholds Major League Baseball’s Licensing of Team Logos

Posted on October 06, 2008
The United States Court of Appeals for the Second Circuit recently held that Major League Baseball?s licensing of team logos was subject to rule of reason review under Section 1 of the Sherman Act.  The court affirmed summary judgment in favor of MLB because the appellant did not challenge the licensing program under that rule...

The Ninth Circuit Affirms Dismissal of Foreigners’ Claim Against DRAM Manufacturers for Price Fixing

Posted on September 18, 2008
The Ninth Circuit affirmed dismissal of foreigner purchasers’ Section 1 claims against DRAM manufacturers for price-fixing.  In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. 06-15636, 2008 WL 3522419 (9th Cir. Aug. 14, 2008).  The plaintiffs alleged that they purchased DRAM abroad at supra-competitive prices due to defendants’ price fixing activities...

Nine State Attorneys General File Amicus Curiae Brief that Supports the DOJ’s Position (and Reject’s the FTC’s Position) in

Posted on September 11, 2008
The attorneys general of Virginia, Alabama, Colorado, Florida, Kansas, Nebraska, Oklahoma, Utah and Washington filed an amicus curiae brief in favor of petitioner in Pacific Bell Telephone Co. v. Linkline, No. 07-512, which is pending before the Supreme Court...

The Copperweld Doctrine Shields the NFL from Antitrust Liaibility for Its Exclusive Licensing Arrangements

Posted on September 04, 2008
The United States Court of Appeals for the Seventh Circuit applied the Copperweld doctrine to a sports league for the first time. In so doing, it recently affirmed summary judgment in favor of the NFL, its teams and Reebok in an antitrust challenge to an exclusive license of team names and logos to Reebok [...

FTC Clears EA’s Acquisition of Take-Two

Posted on August 20, 2008
The Wall Street Journal reported today that the FTC has informed Electronic Arts and Take-Two Interactive Software that is has no objection to the combination of the companies. As you may recall, on June 4, 2008 the parties agreed to give the FTC an additional 45-days to review the transaction under the HSR Act...

FTC Approves Final Consent Order Against Talx With Minor Modifications

Posted on August 12, 2008
On August 8, 2008, the FTC approved its preliminary consent order (with minor, immaterial modifications) from April 28, 2008 against Talx Corporation that remedied Talx’ anticompetitive acquisitions of competitor.  See April 30, 2008 Post.   As explained it that Post, this FTC action was of interest to practitioners because of the nature of Talx’ conduct and [...

D.C. Circuit Affirms Dismissal of Class Action Against Biovail

Posted on August 11, 2008
The United States Court for the District of Columbia affirmed summary judgment dismissing a class action brought by wholesalers of brand name drugs, which alleged that Biovail misused its patent for Tiazac ? a hypertension drug ? to keep a generic version from the market...

The First Circuit Denies Antitrust Imunity to Labor Union

Posted on August 05, 2008
The First Circuit recently denied antitrust immunity to a labor union and certain contractors in an action by non-union shops alleging that the defendants forced them from the market in violation of Sections 1 and 2 of the Sherman Act. American Steel Erectors, Inc...

D.C. Circuit Reverses Decision Denying Preliminary Injunction in Whole Foods/Wild Oats Merger

Posted on July 29, 2008
Today, the D.C. Circuit reversed the district court?s decision that denied a preliminary injunction in the Whole Foods/Wild Oats merger. FTC v. Whole Foods Markets, Inc., No. 07-5276 (D.C. Cir. July 29, 2008) (Whole Foods decision). Crucial to the decision was the D...

DOJ’s Antitrust Division’s Amnesty Agreements in Jeopardy of Public Revelation

Posted on July 29, 2008
On July 25, 2008, the D.C. Circuit reversed summary judgment in favor of the government that denied appellant?s Freedom of Information Act request. Stolt-Nielsen Transportation Group Ltd. v. United States, Nos. 07-5191, 07-5192 2008 WL 2853214 (D.C. Cir...

The FTC Protects Vodka Drinkers

Posted on July 25, 2008
It appears that the antitrust agencies are more vigilant to protect the interests of vodka drinkers than beer drinkers. As explained in the June 6, 2008 Post, the Antitrust Division was not concerned that there would be negative effects on competition if Coors and Molson formed a joint venture...

DOJ Antitrust Division (Criminal Section) Loses Another Trial — Its Fifth Defeat in the Last Year

Posted on June 15, 2008
On June 2, 2008, in United States v. Keitt, 07-CR-041, the defendant was acquitted after a four-day jury trial. Defendant was accused of paying a former associate director of the TSA in exchange for favorable treatment in overseeing and administering his company’s contract...

Hospitals Abandon Merger During Pendency of FTC’s Motion for a Preliminary Injunction

Posted on June 09, 2008
On June 6, 2008, Inova Health System announced that it is has abandoned its merger plans with Prince William Health Systems. The FTC had commenced an action in the United States District for the Eastern District of Virginia on May 12, 2008, in which it sought a preliminary injunction to block the merger during [...

DOJ Refuses to Protect Beer Drinkers from Miller/Coors Joint Venture

Posted on June 06, 2008
On June 5, 2008, the Antitrust Division issued a press release advising that it was closing its investigation into the potential anticompetitve effects from a joint venture between SABMiller plc (Miller) and Molson Coors Brewing Company to combine their operations in the United States...

EA Grants FTC an Extension to Review Its Proposed Acquisition of Take-Two

Posted on June 04, 2008
On June 4, 2008, Electronic Arts (video game maker) gave the FTC an extension of time under the HSR Act to review the potential competitive effects of its $2 billion proposed acquisition of Take-Two (maker of Grand Theft Auto).  Under the agreement, EA must give the FTC 45 days’ notice of its intention to close...

FTC Refuses to Join DOJ’s Amicus Curiae Brief Seeking Certiorari of Price Squeeze Claim

Posted on June 03, 2008
On May 23, 2008, the FTC issued a statement explaining its reasons for its decision not to join the DOJ’s brief that seeks Supreme Court review of linkLine Comm’n v. Pacific Bell Telephone Co., 503 F.3d 876 (9th Cir. 2007). The FTC “disagree[d] with DOJ’s analysis, and … [believed that] this case does not [...

District Court Unseals Antitrust Settlement

Posted on June 03, 2008
On May 29, 2008, in Floral Accounting Systems, Inc. v. Florists Transworld Delivery, Inc., No. 06-1098, 2008 WL 2224416 (W.D. La. May 29, 2008), the district court unsealed an antitrust settlement holding that antitrust settlements were entitled to less protection than typical disputes between private parties because antitrust cases by the very nature implicate [...

Ninth Circuit Finds No Article 3 Standing in Customer’s Antitrust Suit against Amazon and Borders

Posted on May 30, 2008
On May 27, 2008, the Ninth Circuit in Gerlinger v. Amazon.com, Inc., No. 05-178328, 2008 WL 2169401 (9th Cir. May 27, 2008), affirmed dismissal of a customer’s challenge to the arrangement between Amazon and Borders whereby Amazon took over operation of Borders’ internet bookstore...

DOJ Reaches Settlement with National Association of Realtors Requiring Internet-Based Realtors to Receive Equal Treatment by the MLS

Posted on May 28, 2008
On May 27, 2008, the Antitrust Division settled its litigation against the National Association of Realtors (”NAR”) pending in the United States District Court for the Northern District of Illinois. The Antitrust Division explained the nature of challenge as follows: “[t]he first rule challenged by the Department required MLSs to permit traditional brokers to [...

35 State Attorneys General Ask Congress to Make Resale Price Maintenance a Per Se Violation of the Sherman Act

Posted on May 23, 2008
The state attorneys general continue to be hostile to the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007), which overruled Dr. Miles Medical Co. v. John D. Parke & Sons. Co., 220 U.S. 373 (1911), and made resale price maintenance subject to the rule of reason under [...

District Court Grants Class Certification in In Re Wellbutrin SR Direct Purchaser Litigation

Posted on May 20, 2008
On May 2, 2008, the Eastern District of Pennsylvania granted class certification in In re Wellbutrin SR Direct Purchaser Antitrust Litig., No. 04-5525, 2008 WL 1946858 (E.D. Penn. May 2, 2008).  Plaintiffs claim that GlaxoSmithKline unlawfully extended its monopoly over Wellbutrin SR through fraud on the patent office and sham litigation against potential generic entrants...

Second Circuit Finds Article 3 Standing in Antitrust Challenge to Credit Card Arbitration Provisions

Posted on May 16, 2008
In Ross v. Bank of Am., N.A., No. 06-4755, 2008 WL 1836640 (2d Cir. Apr. 25, 2008), plaintiffs had alleged that the standard arbitration clauses  in their credit card agreements with several issuers was the product of a conspiracy in violation of the Section 1 of the Sherman Act...

Fifth Circuit Rejects North Texas Specialty Physicians’ Petition for Review

Posted on May 16, 2008
On May 14, 2008, the Fifth Circuit rejected North Texas Specialty Physicians’ petition for review of an order that found certain of activities constituted price-fixing and therefore violated Section 1 of the Sherman Act and Section 5 of the FTC Act...

Sixth Circuit Rejects Daubert Challenge and Affirms Class Certification

Posted on May 16, 2008
In In re Scrap Metal Antitrust Litig., No. 06-4511, 2008 WL 2050820 (6th Cir. May 15, 2008), the Sixth Circuit affirmed the $20 million jury verdict.  The Sixth Circuit rejected defendants’ Daubert challenge premised on the claim that plaintiffs’ expert relied on unreliable data...

FTC Conditions Its Approval of Retail Farm Store Merger on Divestitures in Michigan and Maryland

Posted on May 11, 2008
On May 5, 2008, the FTC conditioned its approval of Agrium’s $2.65 billion proposed acquisition of UAP Holding on divestitures on divestitures. The parties provide one-shopping for farms and farmers rely on these type of local stores for bulk fertilizer...

FTC Modifies Nine West’s Consent Decree to Allow Resale Price Maintenance

Posted on May 08, 2008
On May 6, 2008, the FTC granted Nine West’s petition to modify its consent decree to allow Nine West to engage in resale price maintenance with its dealers. In 2000, Nine West — a footwear manufacturer — had entered into a consent decree with the FTC and several state attorneys general to resolve allegations [...

FTC Obtains Conduct Consent Decree To Remedy Harm to Competition from Talx’ Acquisitions of Nearly All Competitors

Posted on May 06, 2008
On April 30, 2008, the FTC obtained a consent decree against Talx Corporation for violating Section 7 of the Clayton Act. With $270 million in revenue last year, Talx Corporation is the leading provider of outsourced unemployment compensation management (”UCM”) and outsourced verification of income and employment services (”VOIE”)...

DOJ Protects North Carolina Moviegoers

Posted on May 05, 2008
On April 30, 2008, the Antitrust Division conditioned its approval of an acquisition by Regal Cinemas, Inc. of Consolidated Theater Holdings GP on divestitures in Southern Charlotte, Northern and Southern Raleigh and Asheville. On January 14, 2008, Regal — with $2...

D.C. Circuit Grants Rambus’ FTC Petition For Review

Posted on April 23, 2008
Yesterday, the United States Court of Appeals for the D.C. Circuit granted Rambus’ petition for review. This decision was much awaited among antitrust counselors because it represented an attempt by the FTC to extend the antitrust laws to cover deceptive practices directed at standard-setting organizations...

DOJ Indicts Another Defense Contractor

Posted on April 22, 2008
The Antitrust Division (Criminal Section) has been busy lately. On April 19, the Criminal Section obtained plea agreements in two separate investigations. Today, the Criminal Section announced the unsealing of an indictment in the United States District Court for the Northern District of California...

DOJ Obtains Two Guilty Pleas in Different Investigations

Posted on April 18, 2008
Today, an Italian executive agreed to plead guilty for his involvement in the Marine Hose Cartel. His plea agreement includes incarceration of one year and one day and a $20,000 fine. In addition, a Long Island defense contractor agreed to plead guilty to bid rigging and a conspiracy to commit wire fraud for [...

Connecticut Attorney General May Pursue Damages to the General Economy of the State

Posted on April 14, 2008
The Connecticut Supreme Court recently held that the Connecticut Attorney General may pursue ?damages to its general economy caused by violations of the Connecticut Antitrust Act.?  State of Connecticut v. Marsh and Mclennan Companies, Inc., SC 17861 (Ct...

National Hockey League Defeats the Rangers’ Challenge to Its Internet Policy

Posted on April 10, 2008
In Madison Square Garden, L.P. v. Nat’l Hockey League, No. 07-4927-CV, 2008 WL 746524 (2d Cir. Mar. 19, 2008), the Second Circuit denied Madison Square Garden — owner of the Rangers — a preliminary injunction against threatened fines for non-compliance with the NHL’s internet policy...

District Court Applies Rule of Reason to Star ATM Network’s Fixed Interchange Fees

Posted on April 08, 2008
On March 24, 2008, the United States District Court for the Northern District of California granted partial summary judgment and dismissed plaintiffs’ challenge to the Star Network’s fixed interchanges fees that was based on a per se violation of Section 1 of the Sherman Act...

Class Certification Reversed in In re New Motor Vehicles Canadian Export Antitrust Litigation

Posted on April 03, 2008
On March 28, 2008, the United States Court of Appeals for the First Circuit reversed the grant of class certification in In re New Motor Vehicles Canadian Export Antitrust Litigation, Nos. 07-2257, 07-2258, 07-2259, 2008 WL (1st Cir. Mar. 28, 2008).  In that case, plaintiffs alleged a conspiracy among car manufacturers — a violation of [...

Three State Attorneys General Obtain Consent Decree Against Herman Miller for Resale Price Maintenance

Posted on March 31, 2008
On March 21, 2008, Herman Miller, Inc. entered into a consent decree with the attorneys general for New York, Michigan and Illinois to resolve allegations of resale price maintenance over its Aeron chair — an ergonomic desk chair.  Filed in the United States District Court for the Southern District of New York, the Complaint alleged [...

The United States Court of Appeals for the Second Circuit Dismisses Robinson-Patman Act Claim on Summary Judgment for Failure to Prove Injury to Competition

Posted on March 30, 2008
In United Magazine Co., Inc. v. Curtis Circulation Co., 06-3212 (2d Cir., Mar. 25, 2008), the Court affirmed summary judgment dismissing plaintiffs’ Robinson-Patman Act claims against certain defendants.  This decision is significant in that it shows the difficulty for Robinson-Patman Act plaintiffs to meet the injury-to-competition requirement under Volvo Trucks N...

DOJ Clears Merger Between XM Satellite and Sirius Radio

Posted on March 25, 2008
March 24, 2008.  The Antitrust Division cleared the merger between XM Satellite Holdings and Sirius Satellite Radio — the only satellite radio providers.  In its closing statement, the Antitrust Division concluded that it would be unlikely that the parties could raise prices post-merger...

Cautionary Tales to the Merger Review Process

Posted on March 23, 2008
Three recent developments serve as cautionary tales to parties to prospective transactions.  These actions serve to remind practitioners that there is a genuine possibility of agency action even in cases where the buyer has only a minority ownership interest in a company that competes with the target; the value of the overlapping assets represent less [...

DOJ’s Antitrust Division (Criminal Section) Suffers Third Major Loss Within the Last Year

Posted on March 14, 2008
March 12, 2008.  The U.K. House of Lords declined to extradite Ian Norris, the former CEO of Morgan Crucible who the Antitrust Division (Criminal Section) had indicted for price-fixing in connection with electrical carbon cartel.  Price-fixing was not a crime in the U...

EU Clears Google’s $3.1 billion Acquisition of DoubleClick

Posted on March 11, 2008
Dismissing complaints from Microsoft and Yahoo, the EU Competition Commission cleared Google’s acquisition of DoubleClick.  The Antitrust Division (U.S. Department of Justice) had done so after completing its Hart-Scott-Rodino Act review in December 2007...

FTC Enforces Novel Interpretation of Section 5 of the FTC Act

Posted on March 10, 2008
January 23, 2008.  The FTC challenged anticompetitive behavior under Section 5 of the FTC Act that was not a violation of Section 1 or 2 of the Sherman Act.  The FTC alleged that Negotiated Data (”N-Data”) reneged on its commitment to license its Ethernet technology to a standard-setting body on specificed terms...

DOJ Conditions Approval of the $1.75 billion Altivity and Graphic Packaging Merger on Divestitures

Posted on March 10, 2008
March 4, 2008.  On July 10, 2007, Altivity Packaging LLC (”Altivity”) and Graphic Packaging International, Inc. (”Graphic”) announced their plans to merge in a transaction valued at $1.75 billion.  Altivity and Graphic are the first and fourth largest manufacturers (respectively) of coated recycled boxboard (”CRB”) in the United States and Canada...

DOJ Conditions Approval of Cookson’s Acquisition Foseco on Divestitures

Posted on March 05, 2008
March 4, 2008.  On October 11, 2007, Cookson Group plc — a U.K. company — entered into an agreement to purchase Foseco plc - a U.K. company — for about $1 billion.  Both companies manufacture isotstatically press carbon ceramic products (”CBCs”) in North America and sell them throughout the United States...

FTC Sues Cephalon for Blocking Entry of Generic Provigil

Posted on March 03, 2008
February 13, 2008.   The FTC sued Cephalon for exclusionary conduct that is preventing generic competition with its branded drug Provigil.  The FTC alleged that Cephalon settled with four different generic manufacturers.  These generic manufacturers dropped their patent challenges to Provigil in exchange for cash payments...

DOJ Conditions Approval of Private Equity Groups? Acquisition of Interest in Competing Portfolio Company on Divestitures

Posted on February 28, 2008
February 13, 2008.  On November 16, 2006, Bain Capital and Thomas H. Lee Partners (?THL?) entered into an agreement to purchase a 70% interest in Clear Channel Communications for $28 billion.  By the time that the transaction closed, Bain and THL also would have private equity interests in two competing radio operators ? Cumulus Media Partners (?CMP?) and Univision Communications...

EU Fines Microsoft ? 899 milllion

Posted on February 27, 2008
February 27, 2008.   Microsoft became the first company that the EU Competition Commission has fined (in its 50 year history) for non-compliance with an antitrust decree. The decree was based on the determination that Microsoft abused its dominant position...

District Court Dismisses Claims Because of Insufficient Proof of Market Definition

Posted on February 25, 2008
January 7, 2008.  In Kentucky Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc., Civil Action No. 05-138 (WOB), 2008 WL 113987 (E.D.K.y. Jan. 7, 2008), the district court granted summary judgment dismissing plaintiff’s Section 1 and 2 claims...

Marsh Executives Convicted of Bid Rigging

Posted on February 22, 2008
February 22, 2008.  Two former Marsh executives (William Gilman and Edward McNenney) were convicted after a 10-month bench trial of bid rigging in violation of New York’s Donnolly Act.  They were acquitted of grand larceny and engaging in schemes to defraud...

DOJ Conditions Approval of the Thomson/Reuters Transaction on Divestitures

Posted on February 21, 2008
February 19, 2008.  The Antitrust Division conditioned approval of Thomson Corporation’s $17 billion acquisition of Reuters Group PLC on divestitures of financial datasets and licensing of related intellectual property.  Thomson and Reuters compete head-to-head in providing three types of financial data used by investment professional to make investment decision...