Antitrust Law

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...

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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...

LEGISLATION PROPOSED TO CURTAIL "ANTICOMPETITIVE" ISP PRACTICES

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...

State AGs Continue To Prosecute Resale Price Maintenance After Leegin

Posted on May 13, 2008
On March 27, 2008, the U.S. District Court for the Southern District of New York entered a Consent Decree in a case brought by the Attorneys General of New York, Illinois and Michigan against Herman Miller, a seller of high-end office chairs. The Complaint alleged that Herman Miller's suggested retail price policy ("SRP policy") was unlawful price fixing under state and federal antitrust laws...

FTC Modifies Price-Fixing Consent Order After Leegin

Posted on May 13, 2008
On Tuesday, May 6, 2008, the FTC announced that it had modified a 2000 consent order that settled retail price-fixing charges against shoe seller Nine West. Under the conset order, Nine West was prohibited from penalizing its dealers for selling its goods below retail prices set by Nine West...

Supreme Court Denies Cert In Challenge To Tobacco Master Settlement Agreement

Posted on May 13, 2008
On May 12, 2008, the Supreme Court denied cert. in an antitrust case challenging the tobacco Master Settlement Agreement ("MSA") and its implementing statutes. See Sanders v. Brown, --- S.Ct. ---, No. 07-995 (May 12, 2008). The Ninth Circuit had held (1) that the MSA implementing statutes were not pre-empted by the Sherman Act, (2) that the Noer Pennington immunity doctrine protects a private party from liability for the act of negotiating a settlement with a state entity and any injuries that result directly from valid government action taken on the petitioner's behalf, and (3) that the Parker state-action immunity doctrine protects a state from liability for entering into the MSA and for enacting the implementing statutes...

FTC Announces Revised Proposal For Business Opportunities Rule

Posted on March 20, 2008
In April 2006, the FTC sought comment on a proposed trade regulation rule governing business opportunities that was separate from and more expansive than the FTC franchise disclosure rule. For example, the FTC's franchise disclosure rule applies to opportunities that require a buyer to make a payment of at least $500 within the first six months, but under the inventory exception, voluntary purchases of reasonable amounts of inventory at bona fide wholesale prices do not count toward the $500 threshold...

"Preemption, Preemption, Preemption" Says The Supreme Court

Posted on February 21, 2008
As previously mentioned in this blog, there are several high profile preemption cases pending before the Supreme Court this term. Yesterday, the Supreme Court decided three of them -- all in favor of federal preemption of state laws.In Rowe v. New Hampshire Motor Transport Association, the Court held that Maine's Tobacco Delivery Law (which required carriers to verify that the recipients of tobacco shipments were not minors) was preempted by the Federal Aviation Administration Authorization Act (which prohibits states from regulating prices, routes or services of shipping companies)...

Unintended Consequences Of Leegin: No Antitrust Exemption For Baseball?

Posted on February 12, 2008
FTC Commissioner Pamela Jones Harbour wrote an interesting article about the collateral fallout of the Supreme Court's decision in Leegin. As explained here and (in more depth) here, the Leegin Court held that minimum vertical price fixing is not per se illegal, thus reversing the long-standing decision in Dr...

Regulatory Preemption And The Supreme Court

Posted on February 07, 2008
There was an interesting article (State, Federal Powers Collide) in the Wall Street Journal last week about federal agencies enacting new rules that preempt state law. The article explained: "These new initiatives, largely applauded by business interests, affect products including drugs, autos and passenger railcars...

Do Not Call Improvement Act

Posted on February 06, 2008
Identical versions of the Do Not Call Improvement Act have passed both the House (H.R. 3541) and Senate (S. 2096). The Act eliminates the need for consumers to re-register their numbers on the Do Not Call registry. When the Do Not Call program was first established in 2003, consumers could list their phone numbers for a five-year period after which they were required to re-register...

Antitrust Claim Against Wintergreen Allowed To Proceed

Posted on January 31, 2008
The Wintergreen Resort is a ski resort and conference center in Nelson County, Virginia (between Lynchburg and Charlottesville). According to the allegations in Plaintiff's complaint, Wintergreen entered into an agreement with Wintergreen Resort Premier Properties (WRPP), a local real estate company, which granted WRPP the exclusive right to operate a real estate office in Wintergreen's Mountain Inn...

Tricky Preemption Issue Re: Established Business Relationship Under TCPA and Do Not Call Registry

Posted on January 15, 2008
In 2003, the Federal Trade Commission and the Federal Communications Commission jointly established a national do-not-call registry pursuant to the Telephone Consumer Protection Act (TCPA). Even when a number is listed on the do-not-call registry, solicitation calls can be placed to persons with whom the caller has an "established business relationship...

Happy New Year: An Explanation For My Absence

Posted on January 01, 2008
As some readers may (or not) have noticed, I was not able to post as often in 2007 as I did in 2006. I have two excuses.First, I was working on a very complicated and interesting antitrust/IP case which went to trial in the Spring/Summer of 2007. Although the case is not over, you can read about it here...

In-Depth Analysis Of Leegin

Posted on August 01, 2007
This powerpoint presentation contains an in-depth analysis of the Supreme Court's decision in Leegin and what the new era of resale price maintenance under the rule of reason means for manufacturers, distributors and retailers.

Supreme Court Overrules Dr. Miles: Minimum Resale Price Fixing Subject To The Rule Of Reason

Posted on June 28, 2007
On the last day of the 2006-2007 term of court, the Supreme Court issued its long-awaited opinion in Leegin Creative Leather Products, Inc. v. PSKS, Inc. By a vote of 5-4, the Court held that minimum vertical price fixing is no longer per se unlawful under the Sherman Act, but rather should be analyzed under the rule of reason...