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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 [...]

Supreme Court Has Opportunity to Clarify Application of Foreign Trade Antitrust Improvements Act

Last week, the U.S. Supreme Court was asked, in parallel petitions, to resolve a split between the Seventh Circuit and the Ninth Circuit on the application of the federal antitrust laws to a conspiracy to fix prices of thin-film transistor-liquid crystal display (TFT-LCD) panels. The petitions provide an excellent opportunity for the High Court to offer needed guidance on the Foreign Trade Antitrust Improvements Act (FTAIA), which the Court last took up just over a decade ago in F. Hoffmann-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155, 2004-1 Trade Cases ¶74,448.

In a petition for certiorari filed on March 16, Taiwanese electronics manufacturer AU Optronics Corporation, two of its former of [...]

United Kingdom: Competition Appeals – Speak Now or Forever Hold Your Peace?

It is not uncommon, where a multi-party infringement of competition law has been established and sanctioned by a competition authority for some, but not all, of the addressees of the authority’s decision to appeal that decision.  Those appeals can be against the finding of infringement, whether in whole or part, and/or the penalty imposed.  Where those appeals are successful, non-appealing parties may then wish to themselves challenge the finding of infringement and/or the penalty, availing of the judgments already handed down in favour of their co-cartellists or co-infringers of competition law.

In a series of judgments, concerning decisions by the Office of Fair Trading (“OFT”) in [...]

Costco v. J&J: The Latest and Largest in a Long Line of Pricing Cases

It’s not often that one Fortune 50 company sues another – but that’s what happened earlier this week when Costco sued Johnson & Johnson (J&J) in California federal court over J&J’s attempts to limit Costco’s resale prices of J&J’s contact lenses.  For antitrust practitioners, however, the case is of interest because of its potential lessons about manufacturers’ efforts regarding resale prices.  Initially, however, the case might provide more lessons about another age-old antitrust question – what’s sufficient to allege and then prove agreement?

Some manufacturers seem to think the struggle to control resale prices began with Amazon and the Internet.  Antitrust law, howev [...]

North Carolina Dentists is in the Hizzouse, Y’all! Woot Woot!

So, the only real surprise about yesterday’s opinion in North Carolina State Bd of Dental Examiners v. FTC is that it wasn’t unanimous.  The strongly worded six-member majority opinion, already receiving early applause (see here and here), is further proof that the only thing the current Supreme Court dislikes more than antitrust plaintiffs is state government pork.

For those of us passionate dorks who follow immunities issues closely (I, for one, only recently emerged from the ashes of this epic book project), North Carolina State Board is a candy store, really much more so than the Court’s other very recent, pro-enforcement state action smackdown, FTC v. Phoebe Putney Health Sys., I [...]

European Commission Dawn Raids—Advocate General Recommends the Avoidance of “Fishing Expeditions”

Earlier this month, Advocate General Wahl delivered his opinion in the Deutsche Bahn[1] 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 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 needs to review closely this opinion (and final judgment in this case) to ensure that their dawn raid procedures and training reflect best pra [...]

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