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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 [...]

FTC at a Crossroads: The McWane Case

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 [...]

Combination of online consumer review platforms Bazaarvoice and PowerReviews found to violate Clayton Act

Last week, the federal district court in San Francisco ruled that Bazaarvoice Inc.’s June 2012 acquisition of PowerReviews Inc. violated Sec. 7 of the Clayton Act. In a “necessarily lengthy Opinion,” the court concluded that the Department of Justice Antitrust Division prevailed in the liability phase of its case against the leading provider of online Ratings and Reviews platforms (R&R) over its acquisition of its primary competitor. A status conference has been set for January 22 to consider the remedy phase of the litigation. The court could order Bazaarvoice to divest PowerReviews assets to create a viable competitor, even though the merger was completed 18 months ago.

The Justice Depart [...]

Arbitrability of Competition Law Issues Reinforced in Spanish Court Decision

A number of decisions of various national courts have dealt with the issue of whether a competition law dispute may be referred to arbitration. Although the case law tends to favour a positive answer, it is still an issue that is being continuously brought up in litigation as an easy way out of arbitration clauses. This is supported by the reasoning that mandatory rules implementing public policy goals, such as competition law, should protect important social interests and their enforcement should not be left to uncontrolled national or international arbitral bodies. Still, a steady line of case law continues to accrue and reinforce the view that competition law may be (and should be) arbitr [...]

The Thomson Reuters Commitment Decision

On November 12, 2013, the European Commission published a summary of its December 20, 2012 decision (the “Decision”) accepting commitments offered by members of the Thomson Reuters group (“Thomson Reuters”).  The Decision ended a three-year-long investigation that began in October 2009 into Thomson Reuters’ alleged abuse of a dominant position in a market defined as consolidated real-time data feeds (“CRTDF”).

Although Thomson Reuters did not agree with the Commission’s analysis, it offered commitments to address the Commission’s concerns, and the Decision made these commitments binding without formally finding an infringement or imposing fines.  Ending an investigation t [...]

Successful Mousetrap Builders Beware – Your Sales Contract Just Might Be “De Facto Exclusive Dealing”

Say you built a better mousetrap, the world beat a path to your door and now you have a high share of the mousetrap market.  Let’s further assume that your customers find “the cost of switching [to another mousetrap] prohibitive” through no actions of yours.  What else must you do to be accused of entering into a de facto exclusive dealing arrangement that might be anti-competitive?  According to an opinion last month in Pro Search Plus v. VFM Leonardo (2013-2 Trade Cases ¶78,599; 2013 WL 6229141 (C.D. Cal.)), the answer is “nothing.” While it is just a denial of a motion to dismiss by one district court, the opinion and its reliance on the heavily-criticized ZF Meritor v. Eato [...]

Is the FTC Picking on the Pharmaceutical Industry Through New HSR Rules?

Effective December 16, 2013, Hart-Scott-Rodino (HSR) coverage of exclusive licenses of patents will change. As HSR practitioners know well, the Federal Trade Commission’s Premerger Notification Office (PNO) has long-interpreted HSR to cover exclusive licenses as a reportable acquisition (assuming all other requirements are met) if the licensor did not retain any rights to “make, use or sell” under the patent. Now, the PNO’s formal rules will consider a patent license a reportable acquisition even if the licensor retains the right to manufacture—but solely for the licensee—or if the licensor retains the right to co-market, but, again, solely with the licensee. The PNO’s thinking [...]

EU Merger Control – New Measures Aimed to Reduce Administrative Burden

On 5 December, the European Commission published a package of measures to reduce the administrative burden of EU merger control, which will apply as of 1 January 2014.

The package extends the scope of the simplified procedure for non-problematic cases. This means that more transactions may be notified using the Short Form CO, which will reduce the burden notwithstanding the fact the “Short” Form CO is still a fairly lengthy document. The European Commission considers that its proposed changes could allow up to 60-70% of all notified mergers to qualify for review under the simplified procedure, which is about 10% more than today.

The European Commission has also introduced various amendm [...]

Dear Congress: Don’t Take Away the FTC’s Best Tool for Fighting Patent Trolls

In anticipation of a House Energy and Commerce Committee hearing next week, entitled “The FTC at 100: Where Do We Go from Here,” David Balto offers this post, discussing the important role Section 5 of the Federal Trade Commission Act can play in the battle with patent trolls.

One hundred years ago Congress created the Federal Trade Commission to serve as this nation’s consumer protection cop. Recognizing the limits of the antitrust laws and the lack of consumer protection law Congress gave it broad powers under Section 5 of the FTC Act to attack “unfair trade practices” and “unfair methods of competition.” On December 3, the House Energy and Commerce Committee will hold an FTC oversight h [...]

The FTC: a Tough Data Security Cop

Protecting data security is the most important consumer protection issue for the economy. Each year the Federal Trade Commission receives a flood of identity fraud complaints. Efforts to diminish the problem by noting the limits on consumer liability are just plain wrong. There are liability protections but the external costs can be overwhelming. Consumers must pay for credit repair services or insurance against credit fraud which cost over $7.5 billion annually. Consumers also have to spend a substantial amount of time resolving identity theft (estimated at 21 hours in a 2009 study). The harm does not end there. Identity theft can lead to debt collection harassment, lost employment opportun [...]

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