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About Jeffrey May

Jeffrey May is a senior legal analyst with Wolters Kluwer Law & Business. He edits the CCH Trade Regulation Reporter and is a frequent contributor to the WK's Antitrust Law Daily. A member of the Illinois and Pennsylvania bars, he is a graduate of American University and Boston College Law School.
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 [...]

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motion to hold the petition in abeyance before release of the Supreme Court Order List, and the motion was subsequently withdrawn.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 [...]

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 [...]

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 [...]

A Look Back at U.S. Antitrust Enforcement in 2014

The Federal Trade Commission and Department of Justice Antitrust Division had another active year in antitrust enforcement in 2014.

As for FTC antitrust enforcement efforts, FTC Bureau of Competition Director Deborah L. Feinstein was kind enough to provide a list of the “Ten Competition Happenings for 2014” on the agency’s Competition Matters blog. Her list included four enforcement actions that are worth a second look:

(1) the FTC’s action against two leading propane exchange tank suppliers for allegedly coordinating to reduce the amount of propane in their tanks sold to Walmart (In the Matter of Ferrellgas Partners, L.P., FTC Dkt. 9360);

(2) the Commission’s challenge to the (now aband [...]

U.S. Premerger Coordination Allegations Settled for $5 Million in Civil Penalties, Disgorgement

The dangers of prematurely exercising operational control over an acquisition target, or at least appearing to operate organizational control, are highlighted by a Department of Justice Antitrust Division action announced yesterday against two particleboard suppliers that recently dropped their planned combination. Just five weeks ago, Flakeboard America Ltd. abandoned its proposed acquisition of rival SierraPine in the face of the government’s antitrust concerns. Now, the companies have agreed to pay millions to settle allegations that they engaged in premerger coordination, also known as “gun jumping,” in violation of both Sec. 7A of the Clayton Act and Sec. 1 of the Sherman Act.

According [...]

Proposed Settlement Rejected in FTC Challenge to Georgia Hospital Combination; Matter Returns to Administrative Litigation

The FTC’s challenge to the now-consummated combination of Phoebe Putney Health System, Inc.—the operator of Phoebe Putney Memorial Hospital—and rival Palmyra Park Hospital, Inc. in Albany, Georgia, is headed back to administrative litigation. More than a year after announcing a tentative settlement in the case, the FTC has refused to grant final approval to the proposed consent order. On Friday, the Commission issued an order, returning the matter to Part III litigation to determine whether the acquisition reduced competition in the market for acute-care hospital services sold to commercial health plans in a six-county area, as alleged in the agency’s 2011 complaint.

The proposed settle [...]

Monopoly Claims Can Survive Summary Judgment: Medtronic Must Defend Conduct in “Bone Mill” Market

One firm’s ability to break into the market for “bone mills” used in spinal-fusion surgery did not foreclose the possibility that medical device company Medtronic monopolized or attempted to monopolize the bone mill market, the U.S. Court of Appeals in Denver ruled last week. Bone mill manufacturer Lenox MacLaren Surgical Corporation raised sufficient fact questions, including questions regarding barriers to entry, to defeat summary judgment on its monopolization and attempted monopolization claims. The August 5, 2014, decision is Lenox MacLaren Surgical Corp. v. Medtronic, Inc., No. 13-1307.

The suit follows a falling out between Lenox and Medtronic. Lenox had sold some of its bone mi [...]

Convictions, $500 Million Fine Upheld in Price Fixing Case Against AU Optronics; Foreign Trade Antitrust Improvements Act No Bar

The U.S. Court of Appeals in San Francisco last week upheld the price fixing convictions of Taiwanese electronics manufacturer AU Optronics (AUO), its U.S. subsidiary, and two company executives. The appellate court also affirmed a $500 million fine against AUO, the only defendant to challenge the sentence. The case is U.S. v. Hsiung, No. 12-10492.

In March 2012, following an eight-week trial, a jury found AUO, AU Optronics Corporation America (AUOA), and AUO’s former president and former executive vice president guilty of conspiring to fix prices of thin-film transistor-liquid crystal display (TFT-LCD) panels.  The display panels are used in flat panel computer monitors, notebook comput [...]

Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act

The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in China against a group of foreign competitors. In its decision, the court followed the Seventh Circuit’s recent decision in Minn‐Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 2012-1 Trade Cases ¶77,943.

The judgment of the district court dismissing Lotes Co., Ltd.’s claims was affirmed, but on alternative grounds. Even if Lotes had alleged the statutorily required “direct, substantial, and reasonably foreseeable effect” on U.S. domestic or import commerce, any such effect did not [...]

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