Back in September 2012, the potential anticompetitive aspects of most favored nation (MFN) clauses was the hot antitrust topic. While antitrust counselors (and courts) had found the clauses to be innocuous almost all the time, government officials made speeches and even held a workshop in front of an overflow crowd to discuss theories about when MFNs might actually be anticompetitive. Two live cases were thought to offer U.S. courts the opportunity to evaluate MFNs: the Justice Department’s e-books case against Apple, and the private class action against the major hotel chains and online travel agents (OTAs).
Eighteen months later, however, the speeches seem to have ended, no report [...]
Although the parties reached a $7.25 billion class action settlement of the antitrust suit brought by merchants against Visa and MasterCard over swipe fees, the case is far from over.
The protracted legal battle centers on allegations by merchants that Visa and MasterCard engaged in a price-fixing conspiracy to set interchange fees and then imposed restrictions upon retailers not to disclose the charges to consumers or offer cheaper, alternative forms of payment. The settlement agreement – reduced to $5.7 billion after a large faction of class member merchants opted out of the deal – was meant to be the end of the road.
Instead, U.S. District Court Judge John Gleeson’s approval only tr [...]
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 [...]
Wow, what a success! The Antitrust Division recently announced that its investigations in the auto parts market uncovered “separate conspiracies to fix the prices of more than 30 different products sold to US car manufacturers ….”  This adds to the results thus far in the investigation, with guilty pleas from 20 companies and fines of over $1.6 billion. Seventeen executives are either in or headed to prison. And ongoing investigations mean more are in the works. In the words of the head of criminal enforcement in the Division, “The deterrent impact of their sentences should resonate in boardrooms around the world.”
But wait, should this make us feel comfortable about antitrust enforceme [...]
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 [...]
The Ninth Circuit on Thursday ruled that a plaintiff need not make a purchase in California to recover overcharges for price-fixed goods under the California Cartwright Act.
AT&T Corporation and other telecommunications companies that sold mobile wireless handsets containing liquid crystal display (LCD) panels could assert price fixing claims under the California Cartwright Act against manufacturers and distributors of LCD panels to recover overcharges, even though none of their purchases were made in California, the U.S. Court of Appeals in San Francisco decided. Dismissal of the California law claims on the ground that the Due Process Clause of the Fourteenth Amendment forbid the applicati [...]
The federal district court in New York City yesterday denied a “consumer’s” motion to intervene in the Justice Department’s action against Apple, Inc. and five publishers for allegedly conspiring to fix prices for electronic books or “e-books.” The motion was filed by Bob Kohn for the purpose of appealing from a September 6 final judgment ((CCH) 2012-2 Trade Cases ¶78,042), resolving the government’s antitrust allegations against three of the five publishers.
Kohn describes himself as a “consumer of digital goods, author of a treatise on copyright, and founder and CEO of technology companies directly involved in the digital distribution of music and e-books,” the court explained. He gain [...]
Yesterday, the federal district court in San Francisco imposed a record-tying $500 million fine on AU Optronics Corporation (AUO), a Taiwan-based liquid crystal display (LCD) producer, for its participation in a five-year conspiracy to fix the prices of thin-film transistor LCD panels. The company and its U.S. subsidiary also were placed on probation for three years and ordered to implement antitrust compliance programs.
The sentencing follows a jury’s conviction in March 2012 of AU Optronics Corporation, AU Optronics Corporation America, and two high-level executives–Hsuan Bin Chen, and Hui Hsiung.
Joseph Wayland, Acting Assistant Attorney General in charge of the Department of Justice An [...]
The federal district court in New York City yesterday approved a U.S. consent decree that resolves U.S. Department of Justice allegations against three publishers for participating in a conspiracy to fix prices for electronic books or “e-books.” The consent decree with Hachette Book Group, Inc., HarperCollins Publishers L.L.C., and Simon & Schuster, Inc. was found to be in the public interest.
The government alleged that the three settling publishers and two non-settling publishers–MacMillan and Penguin Group–acted collectively to switch to a new sales model for e-books known as the “agency model” and entered into functionally-identical agreements with non-settling defendant Apple, Inc., wh [...]