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So Maybe the Robinson-Patman Act Isn’t Dead After All

Woodman’s Food Market is a chain of warehouse-style grocery stores in Wisconsin. As such, its sales strategy was similar to that employed by Costco and Sam’s Club: the ability to purchase groceries at lower prices by purchasing in large size containers. However, Woodman’s did not charge a membership fee as a prerequisite to shopping at its stores.

On Sept. 9, 2014, Woodman’s met with a representative of the Clorox Company who advised that as of Oct. 1, Woodman’s would no longer be able to purchase these large packs of products, since the Clorox had decided that it would recategorize Woodman’s into its “General Market” retailers, i.e., as an ordinary grocery store. This was pa [...]

In re LIBOR: ‘More Light, Please!’—Questions and Observations As the Decision Dismissing Antitrust Claims for Lack of Antitrust Injury Now Faces Appellate Review

(An in-depth article on In re LIBOR and antitrust injury is available here under this titleThe following is a preview of my article).

(N.B.:  In a coincidence of timing, on Jan. 28, 2015, the date of this posting and publication of the linked article, Judge Lorna Schofield of the federal district court for the Southern District of New York, in a case alleging a conspiracy to manipulate the benchmark rates in the $5.3 trillion/day foreign exchange market, denied the defendants’ motions to dismiss and expressly rejected the test used by the court in In re LIBOR for determining antitrust injury, discussed below.  In re Foreign Exchange Benchmark Rates Antitrust Litigation (S.D.N.Y. 1/28 [...]

Bridging the Gap? Canada Takes on Cross-Border Price Discrimination

The Canadian government is determined to remedy what it (and many Canadians) regard as an unjustified gap between US and Canadian prices for the same goods. In particular, the government has focused on what it perceives to be unjustified “country pricing” or “cross-border price discrimination”, ie, businesses charging more for goods sold in Canada than in the US beyond what might be justified by the allegedly higher costs of doing business in Canada.

The government’s interest in this issue followed a report by the Canadian Senate in February 2013 which tentatively concluded that the segmentation of the Canadian and US markets “reduces competition and allows some manufacturers – [...]

McWane in the 11th Circuit: When Is Exclusive Dealing Anticompetitive?

Who would have thought that ductile iron pipe fittings would make for such an interesting antitrust case?  While the product might be prosaic, the convoluted facts of the McWane v. FTC case in the 11th Circuit could be used as a law school exam question (and some of us already have).  The issues are now boiled down to one of the most controversial ones in antitrust:  when is an exclusive dealing arrangement by a monopolist anticompetitive?  The appeal of the FTC’s finding of liability is now fully briefed and awaiting oral argument late next week – but it is Commissioner Josh Wright’s dissent from that finding that continues to drive the parties and their respective amicus supporte [...]

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 [...]

Follow-Up Note on Another Missed Opportunity for the Administration of Justice Across Europe

Last week, the Council gave itself another shot at improving the functioning of the General Court of the European Union (the ‘General Court’). And once again, it failed. Following an already disappointing episode in March 2014,[1] the Council again placed the equality between member states at the top of its priorities, by doubling up the number of judges at the General Court.  This may admittedly help the General Court reduce its backlog but was certainly not the “most cost-effective” way to do so.  There was, indeed, a much easier way out.

By way of a reminder, reforming the General Court has been on the table for several years.  Everyone agrees this reform is now urgently neede [...]

Antitrust Law and Effects on Innovation, Quality and the Labor Market

Antitrust law debates usually emphasize price effects while other elements of competition get less attention.  Three recent writings by leading antitrust thinkers, however, explore the interaction between antitrust law and competition, on the one hand, and innovation, quality and long-term labor markets, respectively, on the other.  As summarized below, each piece discusses an attribute of competition other than price that might be used to provide a more accurate description of the dynamic competitive effects in any market.

Professors Spencer Weber Waller and Matthew Sag of Loyola University Chicago School of Law discuss competition law and Promoting Innovation in the Iowa Law Review.  (A [...]

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 [...]

United Kingdom: Merger Control Interim Enforcement Orders

Two unusual features of the United Kingdom’s merger control regime are that notification is voluntary and there is no ‘suspension’ obligation. This means that mergers can be – and routinely are – completed without notification to and/or approval by the Competition and Markets Authority (“CMA”).

In this article, I examine the CMA’s use of its new powers to impose interim measures in the case of completed mergers. Through these powers, the CMA can prevent or limit the integration of the merged businesses pending completion of the CMA’s merger review. Self-evidently, this can have significant commercial consequences for the merging parties, in particular the acquiring party.

B [...]

State Regulation or Merely a “Gauzy Cloak”: A Preview of the North Carolina Board Oral Argument in the Supreme Court

On October 14, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws.  Dozens of amici have written briefs supporting both parties.  Those briefs reveal significantly different opinions about the costs and benefits of state licensure boards and how their actions should be treated under the antitrust laws.

The state action exemption can be quickly summarized:  bona fide state regulation of the economy, even if anticompetitive, is exempt from the federal antitrust laws.  Such a quick summary, however, belies the complexities explored in numerous Court [...]

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