Corporate & Securities Law

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...

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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...

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