The Federal Trade Commission will soon be back to having a full complement of five commissioners. Today, the U.S. Senate, by a vote of 95 to 1, confirmed Terrell McSweeny to fill a vacancy at the agency created by the departure of Jon D. Leibowitz more than a year ago. The term runs through September 26, 2017.
The White House announced the nomination of McSweeny in June 2013. Although her nomination was not controversial, her confirmation was delayed because the Senate failed to take a vote before year’s end. In November 2013, the Senate Commerce, Science, and Transportation Committee had voted to report the nomination to the full Senate; however, the nomination needed to be reconsidere [...]
In case you missed some of those morning sessions at the American Bar Association Section of Antitrust Law Spring Meeting last week, here are some of the highlights from the updates with federal and state enforcers.
Agency Update with the Deputy Assistant Attorneys General
There were some new faces on the panel this year at the Section’s annual update from the Department of Justice Antitrust Division. In addition to changes in leadership, over the last year the Antitrust Division has seen an increase in hiring that will support its continued enforcement activities, the enforcers reported during the March 26 session.
David Gelfand and Brent Snyder are the newest deputy assistant attorneys gen [...]
Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts.
Last Friday, it was the Federal Trade Commission’s turn. The U.S. district court in Boise ordered St. Luke’s Health System, Ltd.—the largest health care system in Idaho—to divest Saltzer Medical Group—the state’s largest independent, multi-specialty physician practice—after concluding that St. Luke’s 2012 acquisition of Saltzer violated Section 7 of the Clayton Act and the Idaho Competition Act. In that matter, the FTC and the State of Idaho joined a challenge initiated by private plaintiffs.
On January 8, the federal district court in San Fr [...]
A price fixing action filed by the State of Mississippi as the sole named plaintiff was not a “mass action” under the Class Action Fairness Act (CAFA), even though the state sought restitution for injuries suffered by its citizens, the U.S. Supreme Court decided last week in a unanimous decision, written by Justice Sonia Sotomayor. The Court reversed a decision of the U.S. Court of Appeals in New Orleans (701 F. 3d 796, 2012-2 Trade Cases ¶78,150). The High Court concluded that the case should have been remanded to state court (State of Mississippi v. AU Optronics Corp., Dkt. 12-1036).
The decision provides reassurance to state attorneys general that they can pursue state court actions agai [...]
Last week, the federal district court in San Francisco ruled that Bazaarvoice Inc.’s June 2012 acquisition of PowerReviews Inc. violated Sec. 7 of the Clayton Act. In a “necessarily lengthy Opinion,” the court concluded that the Department of Justice Antitrust Division prevailed in the liability phase of its case against the leading provider of online Ratings and Reviews platforms (R&R) over its acquisition of its primary competitor. A status conference has been set for January 22 to consider the remedy phase of the litigation. The court could order Bazaarvoice to divest PowerReviews assets to create a viable competitor, even though the merger was completed 18 months ago.
The Justice Depart [...]
Two of the most significant conferences on the antitrust calendar were held last week. Georgetown Law Center featured its Seventh Annual Global Antitrust Enforcement Symposium on September 25, and Fordham Law School’s 40th annual international antitrust law and policy conference took place on September 26 and 27.
FTC Chairwoman Edith Ramirez and William Baer, Assistant Attorney General at the Department of Justice Antitrust Division, delivered remarks on their latest enforcement priorities at both programs.
In case you missed these great programs, here are some brief summaries of the enforcers’ presentations.
Global Antitrust Enforcement
Chairwoman Ramirez kicked off the Georgetown prog [...]
The Department of Justice Antitrust Division on Friday filed its proposed remedy with the federal district court in New York City, addressing Apple Inc.’s role in a conspiracy among publishers to fix retail prices for electronic books, or e-books. Following a bench trial, the court last month found Apple liable in an action brought by the Justice Department and 33 states and territories. At that time, the court said it would entertain the plaintiffs’ request for injunctive relief and damages at a later date.
According to the government’s Memorandum of Law in Support of Proposed Injunction, the proposed final judgment “will halt Apple’s anticompetitive conduct, restore lost competit [...]
Apple Inc. played a central role in facilitating and executing a conspiracy among publishers to fix retail prices for electronic books, or e-books, the federal district court in New York City decided last week. The finding of liability against Apple comes after a bench trial that lasted from June 3 to June 20 in an action brought by the U.S. Department of Justice and 33 states and territories.
In April 2012, the Department of Justice Antitrust Division and a number of state attorneys general brought actions against Apple and leading publishers for conspiring to fix the sales prices of e-books. The suits named as defendants Apple and publishers Hachette Book Group (USA), HarperCollins Publish [...]
Consumers and small businesses that are parties to contracts containing arbitration agreements will find it tougher, if not impossible, to avoid the terms of those agreements and pursue an antitrust action in court against the other contracting party, in light of a recent U.S. Supreme Court ruling.
Noting that “the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim,” a sharply divided Supreme Court ruled on Thursday that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA), even though the cost of individually arbitrating the federal statutory claim exceeded the potential recovery. The High Court [...]
Terrell McSweeny, Chief Counsel for Competition Policy and Intergovernmental Relations at the Department of Justice Antitrust Division, is President Obama’s pick to fill the current vacancy on five-member Federal Trade Commission.
The White House announced today the President’s intention to nominate McSweeny. According to the announcement, McSweeny has served in the senior counsel position at the Antitrust Division, since 2012. Prior to that, she served as Deputy Assistant to the President and Domestic Policy Advisor to the Vice President at the White House from 2009 to 2012.
Based on her background, McSweeny appears to be a Democrat. If confirmed, she would provide the Democrats with a th [...]