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Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers

UPDATE: The bi-partisan “Criminal Antitrust Anti-Retaliation Act of 2015” passed the Senate by unanimous consent on July 22.

A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The proposed “Criminal Antitrust Anti-Retaliation Act of 2015” (S. 1599) was reported out of the Senate Judiciary Committee on June 16.

A similar bill was passed unanimously by the Senate in the last Congress; however, the measure was not taken up by the House at that time. With the current bill moving through the Senate, it’s up to House lawmakers to act on the bill [...]

Dawn Raids – EU’s Highest Court Prevents Circumvention of the Ban on Using Dawn Raids for Fishing Expeditions

The Court of Justice of the European Union has now delivered its judgment in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission dawn raids (on-the-spot surprise inspections used to investigate possible infringements of the EU competition rules). In particular, the case focusses on what inspectors can do with documents that that they have found during an inspection which do not relate to the subject matter of their inspection, but indicate separate unrelated anti-competitive behaviour.

Business should review their dawn raid procedures to ensure that they reflect the best practice established by this judgment, in particula [...]

The Roberts Court, Enforcement Agencies and “The Limits of Antitrust”

Finding a unifying theory to explain (almost) all the decisions of the Supreme Court in a substantive area can be a difficult task. Alden Abbott and Thom Lambert’s new article accomplishes it for the antitrust decisions of the Roberts Court.[1] They contend that these opinions can be seen as the Court implementing Professor (now Judge) Easterbrook’s seminal 1984 article The Limits of Antitrust.[2] By comparison, the authors believe that the enforcement agencies in the same time period have shown less deference to any such limits. While that conflict might portend future difficulties for the agencies in front of the Court, the one acknowledged exception to the theory was a big win for the [...]

High Court Considering Fate of Three Antitrust Petitions

UPDATE: On June 15, the Court denied review in Hsiung v. U.S., Dkt. 14-1121,  and Motorola Mobility LLC v. AU Optronics Corp., Dkt. 14-1122. Apparently, Dow Chemical Co. v. Industrial Polymers, Inc., Dkt. 14-1091, remains pending. The parties filed a joint motion to hold the petition in abeyance before release of the Supreme Court Order List, and the motion was subsequently withdrawn.

On June 11, the U.S. Supreme Court is scheduled to consider whether to grant review in three antitrust cases. We could know as early as next Monday the fate of the petitions for certiorari.

Two of the petitions question the application of the Foreign Trade Antitrust Improvements Act to an international cart [...]

Divided Supreme Court Allows State Law Antitrust Claims to Proceed Against Pipelines, Rejects Field Preemption Argument

In a decision that’s received relatively little attention, a divided U.S. Supreme Court earlier this week held that the Natural Gas Act (NGA) did not “field” preempt state law antitrust claims raised by large retail buyers of natural gas seeking damages from pipelines for their purported price manipulation. Rejected was the pipelines’ argument that the claims fell within the field preempted by the NGA—“the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.” The decision could encourage antitrust lawsuits in areas where preemption concerns might have made antitrust plaintiffs otherwise reluctant.

While the Court’s seven-to-two de [...]

Phoebe Putney, NC Board: Winning Legal Battles, Not Hearts and Minds

The FTC has notched two Supreme Court wins in recent years to narrow the state action exemption.  But elements of those two cases might best be seen as evidence that the FTC is losing the broader fight: increasing antitrust compliance by convincing non-experts of the wisdom of antitrust’s principles.

Here’s a quick refresher on the two cases in question:

  • In Phoebe Putney, the FTC challenged a hospital merger in Georgia. It lost that challenge on state action immunity grounds at the district court and 11th Circuit and the merger closed while awaiting Supreme Court action.  In February 2013, the Court agreed with the FTC that the lower courts had misread the “clear articulation” pro [...]
Supreme Court Has Opportunity to Clarify Application of Foreign Trade Antitrust Improvements Act

Last week, the U.S. Supreme Court was asked, in parallel petitions, to resolve a split between the Seventh Circuit and the Ninth Circuit on the application of the federal antitrust laws to a conspiracy to fix prices of thin-film transistor-liquid crystal display (TFT-LCD) panels. The petitions provide an excellent opportunity for the High Court to offer needed guidance on the Foreign Trade Antitrust Improvements Act (FTAIA), which the Court last took up just over a decade ago in F. Hoffmann-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155, 2004-1 Trade Cases ¶74,448.

In a petition for certiorari filed on March 16, Taiwanese electronics manufacturer AU Optronics Corporation, two of its former of [...]

North Carolina Dentists is in the Hizzouse, Y’all! Woot Woot!

So, the only real surprise about yesterday’s opinion in North Carolina State Bd of Dental Examiners v. FTC is that it wasn’t unanimous.  The strongly worded six-member majority opinion, already receiving early applause (see here and here), is further proof that the only thing the current Supreme Court dislikes more than antitrust plaintiffs is state government pork.

For those of us passionate dorks who follow immunities issues closely (I, for one, only recently emerged from the ashes of this epic book project), North Carolina State Board is a candy store, really much more so than the Court’s other very recent, pro-enforcement state action smackdown, FTC v. Phoebe Putney Health Sys., I [...]

European Commission Dawn Raids—Advocate General Recommends the Avoidance of “Fishing Expeditions”

Earlier this month, Advocate General Wahl delivered his opinion in the Deutsche Bahn[1] case. This case concerns important practical principles which govern the conduct of European Commission dawn raids (on-the-spot surprise inspections used to investigate possible infringements of the EU competition rules). In particular, the case focusses on what inspectors can do with documents that they have found during an inspection which do not relate to the subject matter of their inspection, but indicate separate unrelated anti-competitive behaviour.

Business needs to review closely this opinion (and final judgment in this case) to ensure that their dawn raid procedures and training reflect best pra [...]

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 [...]

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