Corporate & Securities Law

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...

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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...

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