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FTC/DOJ Workshop on Conditional Pricing Practices – Good as Far as It Goes

On June 23, 2014, the U.S. Federal Trade Commission and Department of Justice Antitrust Division held a workshop on “conditional pricing practices”—loyalty discounts, bundled discounts and similar pricing techniques.  Many economists, academic experts and practitioners, some of them even hailing from outside the Beltway, opined on the rationale for and against antitrust legality of such common marketing practices.  The agencies are to be congratulated for leading this discussion and advancing the thinking on this important topic; still, real-world businesses continue to look for clearer guidance than what has been provided by the agencies and courts to date, but the conference promis [...]

Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act

The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in China against a group of foreign competitors. In its decision, the court followed the Seventh Circuit’s recent decision in Minn‐Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 2012-1 Trade Cases ¶77,943.

The judgment of the district court dismissing Lotes Co., Ltd.’s claims was affirmed, but on alternative grounds. Even if Lotes had alleged the statutorily required “direct, substantial, and reasonably foreseeable effect” on U.S. domestic or import commerce, any such effect did not [...]

So Whatever Happened to American Needle?

You remember American Needle, right?  It is the 2010 U.S. Supreme Court opinion that explains when the action of a joint venture is the action of a single entity or, instead, the result of an agreement among the joint venture members.  Now back on remand in federal district court in Chicago, some recent summary judgment decisions might eventually make the case known for some interesting market definition questions.

American Needle was a licensee of NFL Properties (NFL) that challenged under Sherman Act Section 1 the NFL’s decision in 2000 to terminate the licenses of American Needle and others to make NFL-trademarked hats and grant an exclusive license to Reebok.  One of the NFL’s def [...]

Is the FTC Changing Its Intellectual Property Rights Policy?

Commissioner Josh Wright of the U.S. Federal Trade Commission certainly is the gift that keeps on giving to antitrust commentators.  Rarely do many weeks go by without a Wright speech or dissenting opinion that cogently takes on an interesting competition issue, often one captured in an action by his fellow commissioners.  Last month’s example was a speech to the New York City Bar Association provocatively titled, “Does the FTC Have a New IP Agenda?”  Wright believes the answer to his question is “yes,” and that the shift is not helpful.  Much of the support for Wright’s assertion of a change comes from two FTC matters that predate his tenure and alarmed the business communit [...]

McSweeny Confirmed by Senate to Fill Vacancy at FTC, Will Give Democratic Majority to Commission

The Federal Trade Commission will soon be back to having a full complement of five commissioners. Today, the U.S. Senate, by a vote of 95 to 1, confirmed Terrell McSweeny to fill a vacancy at the agency created by the departure of Jon D. Leibowitz more than a year ago. The term runs through September 26, 2017.

The White House announced the nomination of McSweeny in June 2013. Although her nomination was not controversial, her confirmation was delayed because the Senate failed to take a vote before year’s end. In November 2013, the  Senate Commerce, Science, and Transportation Committee had voted to report the nomination to the full Senate; however, the nomination needed to be reconsidere [...]

Enforcers Update Spring Meeting Attendees on Latest Antitrust Developments

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 [...]

Note on a Missed Opportunity for the Administration of Justice Across Europe

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 [...]

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 [...]

FTC’s Winning Streak Is Over

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 [...]

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