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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: March 27, 2014 at 10:58:00

Recent Entries: 73

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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...

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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...

Supreme Court Rules Second Amendment Applies Against States In McDonald v. City of Chicago

Posted on June 29, 2010
On Monday June 28, 2010, the Supreme Court issued its ruling in McDonald v. City of Chicago.The issue in the case was whether the Second Amendment private right to bear arms, recognized in Heller, was applicable against States and localities. In Heller, the Court addressed the scope of the Second Amendment as it applies against the federal government (i...

DOJ/FTC Workshop on Updating the Horizontal Merger Guidelines

Posted on December 04, 2009
On December 3, 2009, the Department of Justice and Federal Trade Commission held a joint public workshop to explore the possibility of updating the Horizontal Merger Guidelines used by both agencies to evaluate potential competitive effects of mergers and acquisitions...

US Antitrust Policy Enters a New Phase

Posted on November 05, 2009
Financier Worldwide published an article that I co-authored on recent developments in US antitrust law. You can read the article here.

Senate Bill Limiting Reverse Payment Settlements

Posted on October 16, 2009
Reverse payment settlements occur when a brand-name drug manufacturer makes a "reverse" payment to settle a patent dispute with a generic drug manufacturer. In exchange for this payment, the generic drug manufacture agrees to delay its entry into the drug market...

DOJ Proposes Structured Rule of Reason Analysis for RPM

Posted on October 14, 2009
Christine A. Varney, the Assistant Attorney General of the U.S. Department of Justice, gave a speech in which she proposed a ?structured rule of reason analysis? for analyzing resale price maintenance. See Christine A. Varney, ?Antitrust Federalism: Enhancing Federal/State Cooperation,? Remarks as Prepared for the National Association of Attorneys General (October 7, 2009)...

House Acts To Restore Per Se Rule Against Resale Price Maintenance Overruling Recent Supreme Court Decision

Posted on August 25, 2009
On Tuesday, July 30, 2009, the House Judiciary Courts and Competition Policy Subcommittee approved the Discount Pricing Consumer Protection Act of 2009 (HR 3190). The bill would make all resale price maintenance agreements per se illegal under the Sherman Act, thus overruling the Supreme Court?s decision in Leegin Creative Leather Products v...

Constructive Termination Actionable Under New Jersey Franchise Practices Act

Posted on August 25, 2009
The New Jersey Appellate Division has ruled that constructive termination is actionable under the New Jersey Franchise Practices Act. See Maintainco, Inc. v. Mitsubishi Caterpillar Forklift America, Inc., 975 A.2d 510 (N.J. App. 2009). The Act prohibits a franchisor from "terminating" a francisee without "good cause" and also prohibits the franchisor from imposing "unreasonable standards of performance" on a franchisee...

House Introduces Bill To Reinstall Per Se Rule Against Resale Price Maintenance

Posted on July 16, 2009
On Monday, July 13, 2009, the Discount Pricing Consumer Protection Act of 2009, H.R. 3190, was introduced in the House of Representatives. The bill would essentially overturn the Supreme Court's 2007 decision in Leegin Creative Leather Products v. PSKS, Inc...

Maryland Daily Record Article About Leegin Repealer

Posted on June 18, 2009
The Maryland Daily Record published this article about resale price maintenance under Maryland's recently revised Antitrust Laws. The article was written by David Hamilton and Jason Hicks, antitrust and business litigation attorneys at Womble Carlyle...

Feds Freeze Accounts of On-Line Poker Players

Posted on June 10, 2009
The Wall Street Journal reports that the US Attorney for the Southern District of New York has frozen or seized $34 million in bank accounts belonging to 27,000 on-line poker players. The accounts are managed by Allied Systems, Inc. and Account Services, which handle transactions for several popular online poker sites...

Google Investigation Reflects Increased Antitrust Enforcement By Government Regulators

Posted on June 10, 2009
The Wall Street Journal and New York Times have reported that the Justice Department has set formal demands, known as civil investigative demands or CIDs, to Google and book publishers regarding a deal that would allow Google to post millions of books online...

Fourth Circuit Says Leegin Did Not Implicity Overrule Colgate

Posted on June 02, 2009
On March 24, 2009, the Fourth Circuit issued a ruling in Valuepest.com v. Bayer Corp, Case No. 07-1760 ("Valuepest"), in which the Court affirmed the District Court's grant of summary judgment to defendants. Plaintiffs, who provide pest control services to individual customers, brought a price fixing claim under Section 1 of the Sherman Act against a manufacturer of pesticies for allegedly illegally conspiring with its distributors to set a minimum resale price for certain pesticide products...

Bye Bye Bargains? Congressional Hearings On Repealing Leegin

Posted on May 26, 2009
The House Judiciary Committee recently held a hearing entitled "Bye Bye Bargains? Retail Price Fixing, the Leegin Decision, and Its Impact on Consumer Prices." The committee heard testimony from several antitrust lawyers, including FTC Commissioner Pamela Jones Harbour, about whether Congress should overrule the Supreme Court's 2007 Leegin decision and reinstate the per se rule against resale price maintenance ("RPM")...

DOJ Signals More Aggressive Antitrust Enforcement By Withdrawing September 2008 Report On Monopolization

Posted on May 26, 2009
On May 11, 2009, Assistant Attorney General Christine A. Varney, Chief of the DOJ's Antitrust Division announced a policy shift in the Department of Justice regarding single-firm conduct under Section 2 of the Sherman Act. In her speech, Varney announced that the DOJ was withdrawing its report Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act, which had been unveiled during the last few months of the Bush Administration...

Judicial Empathy

Posted on May 26, 2009
I wrote an op-ed column that was recently published by the Daily Progress, the newspaper in my hometown of Charlottesville, Virginia. Given that President Obama nominated Sonia Sotomayor as his first Supreme Court justice today, I am re-printing my op-ed column here...

Maryland's Leegin Repealer

Posted on May 26, 2009
On April 14, 2009, Maryland enacted a law designed to counter a recent United States Supreme Court decision that made it easier for manufacturers to require their retailers to charge a minimum price for their goods. Unlike the current federal law, the new Maryland law treats any agreement that establishes a minimum resale price for goods or services as a per se antitrust violation of the Maryland Antitrust Act (MD...

Mack Trucks: Third Circuit Reverses Summary Judgment In Price Fixing Claim Under Rule Of Reason, Applying Leegin

Posted on June 20, 2008
On June 17, 2008, the Third Circuit issued a precedential decision applying the rule of reason to an alleged price fixing conspiracy between a manufacturer of heavy duty trucks and its dealers. See Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc...

The Reshaping of Antitrust

Posted on May 28, 2008
Randy Picker of the University of Chicago Law School has posted a paper entitled "Twombly, Leegin and the Reshaping of Antitrust" on the SSRN website. The article looks at four antiturst cases from the Supreme Court's 2006 Term (Weyerhaeuser, Twombly, Leegin, and Credit Suisse), all of which have been discussed in this blog...

New Law Review Article On The Relationship Between Patent Law And Antitrust Law

Posted on May 28, 2008
The Spring 2008 volume of the Virginia Journal of Law & Technology will contain an interesting article entitled Patent and Antitrust: Differing Shades of Meaning by Robin Feldman, Professor of Law at U.C. Hastings College of Law. The introductory paragraph asks: "Can a body of case law that grants monopoly opportunities be reconciled with a body of case law that curtails monopolization?" In her conclusion, Professor Feldman states:The intersection of patent and antitrust has frustrated courts and scholars since the inception of antitrust law more than a century ago...


Posted on May 28, 2008
On May 6, 2008 the U.S. House of Representatives' Subcommittee on Telecommunications and the Internet held a hearing regarding proposed bill H.R.5353, the Internet Freedom Preservation Act of 2008 ("Act"). At the hearing, public witnesses close to the broadband telecommunications industry presented testimony both favoring and opposing the Act...

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