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 – [...]
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 [...]
Just over a year ago, I wrote (rather extensively) on the European Commission’s public consultation entitled “Towards more effective EU Merger Control” in which the Commission proposed to (i) expand its powers to review non-controlling minority interests and (ii) streamline the case referral system between the European Commission and NCAs.
Our regular readers will note that Mark Jones alerted them to the European Commission’s second public consultation on this subject. As Mark noted, the deadline for this consultation closes on 3 October 2014.
The purpose of this post is not to repeat Mark’s (or indeed my prior 2013 post). Rather I thought that it may be useful to put down some tho [...]
One firm’s ability to break into the market for “bone mills” used in spinal-fusion surgery did not foreclose the possibility that medical device company Medtronic monopolized or attempted to monopolize the bone mill market, the U.S. Court of Appeals in Denver ruled last week. Bone mill manufacturer Lenox MacLaren Surgical Corporation raised sufficient fact questions, including questions regarding barriers to entry, to defeat summary judgment on its monopolization and attempted monopolization claims. The August 5, 2014, decision is Lenox MacLaren Surgical Corp. v. Medtronic, Inc., No. 13-1307.
The suit follows a falling out between Lenox and Medtronic. Lenox had sold some of its bone mi [...]
Bundled discounts are common marketing schemes that normally benefit consumers and competition; however, courts and commentators have found certain circumstances when they might be illegal monopolization. The line between hard competition and exclusionary conduct has confounded antitrust counselors and their pricing clients for years, but, it seemed like only companies with monopoly power need be concerned. Now, a Pennsylvania district court in Schuylkill Health Systems v. Cardinal Health, Inc., et al., has further muddied the waters by allowing a bundling claim to proceed under Sherman Act Section 1, even after dismissing other claims for lack of market or monopoly power.
A bundled disc [...]
As the U.S. Sentencing Commission considers reforms of the guidelines for antitrust crimes, it should take action to affirm the importance of antitrust compliance programs as an essential tool in the fight against cartels, and to provide a balance against the Antitrust Division’s past approach of refusing to consider compliance programs in any case for any purpose. The Division has been an outlier in the Department of Justice in rejecting the Sentencing Commission’s premise that companies may have violations even when they have good programs. The Division’s “one-size-fits-all” policy of never giving any type of benefit or credit for diligent compliance efforts, no matter what the f [...]
On 9 July 2014, the European Commission published a White Paper setting out proposals to amend the EU merger control system. The proposed reform of the system is the most significant in the last 10 years and could have an impact on many corporate transactions.
The proposals deal with the following:
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 [...]
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 [...]
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 [...]