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 [...]
About ten days ago, the Council of the EU failed to reach an agreement on the proposed increase in the number of judges sitting at the General Court of the European Union. The Council thus buried ‑ and for quite a while – a proposal which could have helped the General Court reduce its currently impressive backlog of cases.
This backlog has been problematic for over a decade now. It reached an unprecedented level last year, with “an all-time high” number of 790 new cases brought to the General Court, a jump of nearly 30% compared with 2012. Despite the General Court’s constant efforts (three additional chambers; optimized scheduling of hearings; simplified procedure in trade m [...]
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 [...]
Six months ago in Can the FTC Be a Fair Umpire? I wrote about the concerns arising from the Federal Trade Commission’s dual role as prosecutor and final decision maker in its administrative litigation. I noted that for 19 years in every case brought by the Commission it had found an antitrust violation. I observed “One must wonder about fairness when the pitcher is also the umpire – - and is always calling strikes.” This winning streak did not mean a perfect record – indeed in the cases appealed to Courts of Appeal the FTC was reversed 20 percent of the time (compared to a 5 percent reversal rate for federal court judges).
Congress noticed. In two antitrust oversight hearings last fall t [...]
The Federal Trade Commission is meant to be, and is, an expert body on antitrust laws. So, when a case like McWane—that raises both collusion and exclusion issues—is in front of the FTC, it seems reasonable to expect to receive guidance that is more helpful than we might get from a jury or generalist judge on two questions important to those of us who counsel clients daily. Unfortunately, the two opinions in this matter raise more questions than they answer.
McWane, Inc. is the only U.S. producer of ductile iron pipe fittings and one of a small number of sellers of the product in the country. McWane was accused by the FTC both of excluding its few rivals from the domestically-produ [...]
In our annual forecast of the year ahead for Canadian competition and foreign investment review law, the Davies Competition Law and Foreign Investment Group outlines the “Top 10″ key issues and trends to watch for this year.
1. A Green Light for Class Actions by Indirect Purchasers
The Supreme Court of Canada issued an important trilogy of decisions in October 2013 on competition class actions. Resolving a dispute between certain provincial courts of appeal, the Court held that indirect purchasers are entitled to assert claims for damages and restitution in class actions relying upon alleged competition law offences. (Indirect purchasers are entities that are one or more steps removed fr [...]
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 [...]
Anyone familiar with the antitrust newstream realizes there is a tremendous amount of controversy about the Federal Trade Commission’s administrative litigation process. Unlike the Antitrust Division which fights its litigation battles in Federal Court, the FTC has a distinct home court advantage. FTC antitrust cases are typically litigated administratively with a trial conducted before an FTC administrative law judge, who issues an initial decision, followed with an appeal to the full Commission for a final decision. I have authored a couple of recent articles as have others that question the fairness of the FTC acting as both prosecutor and judge. These concerns have only been amplified [...]