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EU Judgment Confirms Potential of High Cartel Fines for Vertically Integrated Multinational Companies

On 9 July 2015, the Court of Justice of the European Union (“ECJ”) issued an important judgment[1] concerning the basis on which cartel fines by the European Commission should be calculated for vertically integrated companies.

The judgment endorses the power of the European Commission to impose large fines on multinational companies operating at various levels of the manufacturing and supply chain. It confirms that, for the purposes of cartel fine calculation, the Commission may take into account non-EEA sales of cartelized inputs if these inputs have been built into finished products and subsequently sold to a third party in the EEA by a vertically integrated company.

The judgment stand [...]

Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers

UPDATE: The bi-partisan “Criminal Antitrust Anti-Retaliation Act of 2015” passed the Senate by unanimous consent on July 22.

A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The proposed “Criminal Antitrust Anti-Retaliation Act of 2015” (S. 1599) was reported out of the Senate Judiciary Committee on June 16.

A similar bill was passed unanimously by the Senate in the last Congress; however, the measure was not taken up by the House at that time. With the current bill moving through the Senate, it’s up to House lawmakers to act on the bill [...]

Dawn Raids – EU’s Highest Court Prevents Circumvention of the Ban on Using Dawn Raids for Fishing Expeditions

The Court of Justice of the European Union has now delivered its judgment in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission dawn raids (on-the-spot surprise inspections used to investigate possible infringements of the EU competition rules). In particular, the case focusses on what inspectors can do with documents that that they have found during an inspection which do not relate to the subject matter of their inspection, but indicate separate unrelated anti-competitive behaviour.

Business should review their dawn raid procedures to ensure that they reflect the best practice established by this judgment, in particula [...]

The Roberts Court, Enforcement Agencies and “The Limits of Antitrust”

Finding a unifying theory to explain (almost) all the decisions of the Supreme Court in a substantive area can be a difficult task. Alden Abbott and Thom Lambert’s new article accomplishes it for the antitrust decisions of the Roberts Court.[1] They contend that these opinions can be seen as the Court implementing Professor (now Judge) Easterbrook’s seminal 1984 article The Limits of Antitrust.[2] By comparison, the authors believe that the enforcement agencies in the same time period have shown less deference to any such limits. While that conflict might portend future difficulties for the agencies in front of the Court, the one acknowledged exception to the theory was a big win for the [...]

High Court Considering Fate of Three Antitrust Petitions

UPDATE: On June 15, the Court denied review in Hsiung v. U.S., Dkt. 14-1121,  and Motorola Mobility LLC v. AU Optronics Corp., Dkt. 14-1122. Apparently, Dow Chemical Co. v. Industrial Polymers, Inc., Dkt. 14-1091, remains pending. The parties filed a joint motion to hold the petition in abeyance before release of the Supreme Court Order List, and the motion was subsequently withdrawn.

On June 11, the U.S. Supreme Court is scheduled to consider whether to grant review in three antitrust cases. We could know as early as next Monday the fate of the petitions for certiorari.

Two of the petitions question the application of the Foreign Trade Antitrust Improvements Act to an international cart [...]

DOJ Issues Business Review Letter Pertaining to SSO Policy on Standard-Essential Patents and RAND Commitments

The Antitrust Division of the U.S. Department of Justice (DOJ) recently issued a business review letter stating that it would not challenge the Institute of Electrical and Electronics Engineers, Inc.’s (IEEE) proposed revisions to its patent policy. These patent policy revisions seek to address the “wide divergence” in expectations between holders of patents essential to an IEEE standard and the market participants seeking to implement such standards.

The DOJ’s response to the revisions continues the current trend in U.S. law limiting the rights of patent holders that make reasonable and non-discriminatory (RAND) rate commitments as part of the standard-setting process. The DOJ emphasized th [...]

Divided Supreme Court Allows State Law Antitrust Claims to Proceed Against Pipelines, Rejects Field Preemption Argument

In a decision that’s received relatively little attention, a divided U.S. Supreme Court earlier this week held that the Natural Gas Act (NGA) did not “field” preempt state law antitrust claims raised by large retail buyers of natural gas seeking damages from pipelines for their purported price manipulation. Rejected was the pipelines’ argument that the claims fell within the field preempted by the NGA—“the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.” The decision could encourage antitrust lawsuits in areas where preemption concerns might have made antitrust plaintiffs otherwise reluctant.

While the Court’s seven-to-two de [...]

RPM and Strong Inter-Brand Competition – Tooltechnic Coming to Europe?

On 20 April 2015, the Dutch competition authority ACM published Guidelines on its enforcement priorities with respect to vertical restraints.  The document contains a number of case studies intended to illustrate the types of cases that the ACM would or would not consider priorities for its enforcement.  One case study is closely modelled on the Australian Tooltechnic case, in which the ACCC authorised the use of RPM.  The Dutch authority implicitly endorses the ACCC’s evaluation of this case.

In the Tooltechnic case, decided in December 2014, Australia’s Competition and Consumer Commission (“the ACCC”) granted authorisation, subject to some monitoring requirements, to Tooltechnic [...]

Phoebe Putney, NC Board: Winning Legal Battles, Not Hearts and Minds

The FTC has notched two Supreme Court wins in recent years to narrow the state action exemption.  But elements of those two cases might best be seen as evidence that the FTC is losing the broader fight: increasing antitrust compliance by convincing non-experts of the wisdom of antitrust’s principles.

Here’s a quick refresher on the two cases in question:

  • In Phoebe Putney, the FTC challenged a hospital merger in Georgia. It lost that challenge on state action immunity grounds at the district court and 11th Circuit and the merger closed while awaiting Supreme Court action.  In February 2013, the Court agreed with the FTC that the lower courts had misread the “clear articulation” pro [...]
European Commission’s Damages Litigation Illustrates Challenges in Domestic Regimes Pre-Implementation of the Damages Directive

In January 2015 the European Commission announced its intention to appeal a judgment of the Belgian Commercial Court which dismissed the Commission’s claim for €6 million of damages against Otis, KONE, Schindler and ThyssenKrupp. The Court’s decision illuminates the importance of changes brought about by the recently implemented Damages Directive.

Background On 27 February 2007 the European Commission (“EC”) fined four manufacturers of elevators and escalators €992 million.

It found that Otis, Schindler, KONE and ThyssenKrupp were involved in four separate cartels in Germany, Belgium, the Netherlands and Luxembourg. From 1995 to 2005 the companies rigged contracts bids for instal [...]

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