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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 [...]

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 [...]

OTA Case Turns Out to Be Less about MFNs and More about Agreement

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 [...]

Swipe Fee Settlement Yields More Litigation

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 [...]

High Court Rejects Removal of Mississippi Antitrust Suit as Mass Action under Class Action Fairness Act

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 [...]

The Auto Parts Antitrust Case: Is This What Success Looks Like?

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 ….” [1] 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 [...]

Justice Department Proposes Remedy for Apple’s Antitrust Violations in e-Book Market

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 Found to Have Orchestrated Conspiracy to Fix E-Book Prices

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 [...]

Ninth Circuit Widens Pool of Plaintiffs Able to Pursue Conspiracy Claims Under California Cartwright Act

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 [...]

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