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Antitrust Law

Antitrust and Distribution Law Blog Antitrust and Distribution Law Blog

Following legal developments in the areas of antitrust, distribution, franchising, advertising, unfair competition, and other types of trade regulation.
By Jason Hicks, Esq.

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Last Entry: April 21, 2015 at 16:25:00

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Supreme Court Declines to Hear Antitrust Case Leaving Uncertainty Regarding Customer Loyalty Programs

Posted on June 18, 2013
On April 29, 2013, the Supreme Court declined to review a decision that had created uncertainty as to when a manufacturer?s customer loyalty program may violate antitrust laws. Most circuits considering the issue have found that companies can use loyalty programs or long-term agreements, as long as the rebates do not price the product below cost...

FTC v. Actavis, Inc.: Supreme Court Rules That Reverse Patent Settlements May Violate Antitrust Laws

Posted on June 17, 2013
On June 17, 2013, in FTC v. Actavis, Inc., the Supreme Court ruled that "reverse patent settlements" may violate the Sherman Act even though the anticompetitive effects of the settlement fall within the potential scope of the patent.  The Court's 5-to-3 ruling resolved a circuit split between the Third Circuit, which had held reverse patent settlements presumptively unlawful under the "quick look" approach, and the Eleventh Circuit, which had held reverse patent settlements immune from antitrust scrutiny so long as the anticompetitive effects of the settlement was within the potential scope of the patent...

Response to the WSJ's Editorial Questioning My Ability To Purchase And Consume Beer

Posted on February 27, 2013
"Do antitrust lawyers drink beer, or for that matter grocery shop?"  So began a recent editorial in the Wall Street Journal.  The point of the editorial was that the DOJ should not stop Budweiser's maker, Anheuser-Busch, from purchasing Grupo Model, the manufacturer of Corona...

State Law Resale Price Maintenance: We're not in Kansas anymore

Posted on February 27, 2013
I recently participated in a roundtable discussion on state law resale price maintenance actions presented by the ABA Section of Antitrust Law.  The discussion focused on the Kansas Supreme Court's decision in O'Brien v. Leegin, in which the court determined that vertical price fixing was still per se illegal under Kansas antitrust laws despite the fact that such conduct is analyzed under the rule of reasons under federal antitrust law...

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FTC Releases 2012 Green Guides

Posted on December 21, 2012
The Federal Trade Commission has released the final version of its revised Guides for the Use of Environmental Marketing Claims, commonly known as the Green Guides.  The first Green Guides were issued in 1992, and the updated 2012 Green Guides were finalized in October, nearly two years after they were first proposed by the FTC...

NC Supreme Court Upholds Law Banning Video Sweepstakes

Posted on December 14, 2012
On December 14, 2012, the North Carolina Supreme Court issued an opinion upholding a North Carolina law outlawing video sweepstakes games, thus reversing prior rulings from the North Carolina Court of Appeals and Superior Court that had held the law violated the First Amendment...

Supreme Court to Decide "Pay for Delay" Antitrust Case Involving Generic Drugs

Posted on December 12, 2012
What is the connection between a turducken and generic prescription testosterone replacement drugs?  Antitrust law, of course!  At least according to Judge Carnes' opinion in  FTC v. Watson Pharmaceuticals, 677 F.3d 1298 (11th Cir...

Jason Hicks to speak on Antitrust Risks in E-Commerce Distribution CLE

Posted on October 24, 2012
On Tuesday, November 13, 2012, Jason C. Hicks from Womble Carlyle will participate in a CLE webinar entitled Antitrust Risks in E-Commerce Distribution: Avoiding RPM, MPA and other Antitrust Pitfalls in Online Sales and Pricing.  Visit this website to register for the CLE webinar: http://www...

North Carolina Revamps Beer Franchising Laws

Posted on May 25, 2012
On Thursday, May 24, 2012, the North Carolina Senate ratified S 745, a controversial beer distributorship bill that has been debated for over a year in the North Carolina Legislature.  The bill, which would alter the decades-old beer distribution regulatory scheme in North Carolina, prohibits suppliers from engaging in price discrimination between wholesalers, except in very limited circumstances...

Reminder from State AGs: Resale Price Maintenance May Still Be Per Se Illegal Under State Law

Posted on April 19, 2012
One of the reoccurring themes at the 2012 Antitrust Spring Meeting was the emphasis placed on resale price maintenance (RPM) by state assistant attorneys general.  On more than one occasion, I was reminded that despite the Supreme Court's 2007 ruling that vertical price fixing is not per se illegal under federal antitrust law, see Leegin Creative Leather Products, Inc...

Womble Carlyle Sponsors Premier High-Growth Conference: MAVA Capital Connection 2012

Posted on April 18, 2012
Supporting a vibrant investment ecosystem in the Mid-Atlantic region is vital to the American economy. Presented by the Mid-Atlantic Venture Association (MAVA), Capital Connection is one of the nation?s most respected industry conferences. The event brings together high-growth and innovative technology companies with the largest gathering of private financing sources and private equity investors in the country...

DOJ's E-Book Antitrust Suit Raises Interesting Issues

Posted on April 12, 2012
This CBS article about how the DOJ may lose the e-book antitrust suit against Apple raises some interesting issues about the government's case.The basic facts, as I understand it, are as follows: Amazon was selling e-books at a deep discount compared to hardcover books given the lower marginal cost associated with an e-book...

DOJ Sues to Stop AT&T and T-Mobile Merger

Posted on August 31, 2011
The Department of Justice has filed a civil antitrust suit to block AT&T's proposed $39 billion takeover of T-Mobile USA on the grounds that the deal would "substantially lessen competition." The deal would combine the second and fourth largest carriers to create a new market leader in the United States, ahead of current leader Verizon Wireless...

Jay Rogers Writes on Brazil?s New Positive Credit Registry

Posted on August 11, 2011
GREENVILLE, S.C.?Brazil?s new ?Positive Credit Registry? law appears to be an important, and promising, development in the Brazilian credit market. For the first time, the world?s fifth-largest country is allowing the collection and maintenance of positive credit histories of consumers and businesses...

Reckless Abandon and the Mongol Rally

Posted on July 22, 2011
Womble Carlyle is a proud sponsor of Team Reckless Abandon in the Mongol Rally. The Mongol Rally is a diminutive-car road rally that begins in Europe and ends in Ulan Bator, Mongolia. Our support of Team Reckless Abandon benefits Water.Org, a U.S.-based nonprofit organization committed to providing safe drinking water and sanitation to people in developing countries...

California Court Relies on ?Common Sense? in Rejecting Twombley Challenge

Posted on July 21, 2011
Perhaps there is life for conclusory antitrust claims after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). On May 24, the United States District Court for the Central District of California denied a motion to dismiss allegations that Duro Bag Manufacturing Company (?Duro?) put one of its primary competitors?plaintiff Western Pacific Kraft, Inc...

Google Investigation

Posted on July 21, 2011
After months of a rumors about government action against Google, there are reports that government agencies are begining to take action. On June 24, the Wall Street Journal reported that the FTC is primed to serve subpoenas on the internet giant.A July 19, 2011 Bloomberg article states that DOJ and FTC (the two federal agencies charged with enforcing antitrust law) have agreed to divide responsibilities related to Google...

FTC Announces Major Changes to Disclosure Requirements under HSR Antitrust Improvements Act

Posted on July 21, 2011
On July 7, the Federal Trade Commission (?FTC?) announced major changes to disclosure requirements under the Hart-Scott-Rodino Antitrust Improvements Act (?HSR?). Although intended to reduce the burden on the filing parties by eliminating certain disclosure requirements, the updated rules are likely to increase drastically the expense of HSR filings for most companies...

$35 Million Settlement For Baby Products Antitrust Litigation

Posted on April 20, 2011
So much for Leegin... As we have mentioned previously in the blog, companies still face real risks with respect to resale price maintenance despite the Supreme Court's 2007 ruling that such policies are not per se illegal. See Leegin Creative Leather Products, Inc...

Black Friday For Online Poker?

Posted on April 19, 2011
American Lawyer reports that federal prosectures have inducted 11 people linked to some of the world's largest Web-based poker operations, such as PokerStars, Full Tilt Poker, and Absolute Poker. Forbes reports that the online poker industry generated $30 billion in betting per year with $1...

Websites Report FTC Crack Down On Advertisements That Look Like Fake News Stories While Linking To Advertisements That Look Like Fake News Stories

Posted on April 19, 2011
Fox News reports that the FTC is cracking down on websites falsely advertising acai berry weight-loss pills. The FTC says the websites are deceiving consumers by emulating real news organizations.If you have not seen these ads, they look like investigative reporting and often contain tantalizing headlines such as "The HCA Diet Exposed: Miracle Diet or Scam" or "Acai Berry Diet UNCOVERED...

Event! Join NC Attorney General Roy Cooper & Womble Carlyle for the CLE Symposium for Top NC Legal Counsel on May 5

Posted on April 12, 2011
Womble Carlyle CLE Symposium for Top NC Legal CounselA full-day CLE event for in-house counselMay 5, 2011 -- 8:30-4:30 p.m.10 CLE Sessions, Lunch and Keynote Address by North Carolina Attorney General Roy CooperOn May 5, Womble Carlyle will offer CLE sessions on such topics as:political contributions/lobbying data managementeconomic developmentcrisis/catastrophic event planningemployee defection/personnel departuresoutsourcing agreementsintellectual property minefieldslegal project managementthe China market?green? strategies Event informationLocation: Proximity Hotel704 Green Valley RoadGreensboro, NC 27408(800) 379-8200http://www...

Resale Price Maintenance Remains Per Se Illegal In California

Posted on January 14, 2011
The California Attorney General announced a settlement agreement that prohibits a cosmetics company from agreeing with its retailers not to sell its products online at prices below the MSRP. In a stipulated court judgment, Bioelements agreed to permanently refrain from fixing resale prices and pay $51,000 in penalties and attorney fees...

Twombly Plus Leegin Equals Dismissal of Price Fixing Claims By Eleventh Circuit

Posted on January 02, 2011
On December 2, 2010, the Eleventh Circuit affirmed the dismissal of vertical and horizontal price fixing claims against Tempur-Pedic Intern., Inc. based on plaintiff's failure to allege a plausible relevant product market or horizontal conspiracy. See Jacobs v...

FTC Releases Proposed Updates To "Green Guides"

Posted on October 09, 2010
On October 6, 2010, the Federal Trade Commission released proposed revisions to the guidance it gives marketers to help them avoid making misleading environmental claims -- called the "Green Guides." The original Green Guides were introduced in 1998 and have not been updated since...

Antitrust and Credit Card Steering

Posted on October 06, 2010
The Department of Justice filed a civil antitrust suit against Visa, Master Card and American Express challenging their policies that prohibit merchants from steering customers to other forms of payment. Credit card companies earn fees from credit card transactions, and these transaction fees are higher on some types of cards than others...

Juiced Advertising or Persecution of the Pomegranate?

Posted on September 29, 2010
On Monday, September 27, 2010, the FTC brought charges against Pom Wonderful for making false and unsubstantiated claims about the health benefits of their pomegranate juice. The New York Times explains: "Pom Wonderful, the pricey and popular pomegranate juice sold in the distinctly curvaceous bottle, is advertised as helping to reduce the risk of heart disease, prostate cancer and impotence...

Obama's Antitrust Policy: Speak Loudly and Carry A Big Stick

Posted on September 09, 2010
Obama's antitrust enforcement (or percieved lack thereof) is the subject of a frontpage story in today's Washington Post. The story begins: "When President Obama took office, he promised to undo eight years of what he called the weakest antitrust enforcement in half a century...

Scope of Patent Misuse Doctrine Sparks Debate In Federal Circuit

Posted on September 02, 2010
On August 30, 2010, the Federal Circuit issued an en banc decision in Princo Corporation v. International Trade Commission --- F.3d ---, 2010 WL 3385953 (C.A. Fed. 2010). As described in the concurring opinion, "[t]his case arises at the uneasy intersection of antitrust and patent law, in essence posing the novel question of whether (and if so, to what extent) patentee competitors may enter an agreement regarding the licensing of their patents...

New Horizontal Merger Guidelines

Posted on September 01, 2010
On August 19, 2010, the DOJ and FTC issued new Horizontal Merger Guidelines. The Guidelines were updated to reflect current agency practice. One of the changes in the new Guidelines is less reliance on market shares/concentration and more emphasis on the likely competitive effects of a transaction...

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