The State of New York was not entitled to an order enjoining mattress manufacturer Tempur-Pedic International, Inc. from restricting discounting by its authorized retailers, a New York state court has ruled. The New York Attorney General alleged that Tempur-Pedic violated New York General Business Law Sec. 369-a, which renders minimum resale price agreements unenforceable. These…
The Department of Justice Antitrust Division and the Federal Communications Commission today conditionally approved a joint venture between Comcast Corp. and General Electric Co.’s subsidiary NBC Universal Inc. The joint venture, which was announced in December 2009, combines Comcast–the nation’s largest cable operator and Internet service provider–and NBC Universal’s cable networks, filmed entertainment, and television…
On October 18, 2010, the U.S. Department of Justice and the State of Michigan sued Blue Cross Blue Shield of Michigan (“Blue Cross”), a not-for-profit insurance provider, under Section 1 of the Sherman Act and analogous state law to enjoin Blue Cross from including most-favored-customer (aka, ‘most favored nation’ (MFN)) clauses in its contracts with…
Antitrust plaintiffs asserting price fixing claims do not need a “smoking gun” to avoid dismissal of their complaint and proceed to discovery. Yesterday, the U.S. Court of Appeals in Chicago decided that consumers plausibly alleged a conspiracy among the nation’s leading wireless service providers to fix the price of text messaging services in violation of…
Attendees at this fall’s American Bar Association Forum on Franchising meeting should be forgiven if they left San Diego a bit confused about antitrust trends in the practice area. That’s because two major sessions presented different views on the future of antitrust issues in franchise and distribution law. An antitrust workshop (“Antitrust Issues: Back in…
A decision from a divided U.S. Court of Appeals in Atlanta earlier this month continues the debate over the appropriate pleading standard for antitrust plaintiffs under Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544. The appellate court held that consumers failed to support their resale price fixing and horizontal price fixing claims against the…
The recent decision in Coalition for a Level Playing Field, LLC v. Autozone, Inc., 2010-2 Trade Cas. ¶ 77,182 (S.D.N.Y. Sept. 16, 2010) was a bit surprising to me. The essence of the case was that a group of smaller purchasers of auto parts (“jobbers”) felt that the big competitors were getting illegally discriminatory…
The federal district court in Sacramento, California, has refused to dismiss an antitrust claim alleging that SK Foods L.P.—a now-defunct food products distributor—conspired with others to eliminate competition in the market for processed tomato products. The private action brought by competitors of SK Foods parallels a closely-watched federal probe of anticompetitive conduct in the industry….
The 2010 Horizontal Merger Guidelines give increased treatment to a topic that was not well developed in previous Guidelines – namely, mergers that threaten to restrain innovation. The 1968 Guidelines had contained a statement on innovation to the effect that: the Department has used Section 7 to prevent mergers which may diminish long-run possibilities of…
It has been more than a decade since the U.S. Justice Department has brought an antitrust challenge to enjoin the use of “most favored nation” clauses in the health care industry. Many of the more recent, civil non-merger actions against industry participants have targeted alleged boycotts and fee-setting arrangements by providers. Today, the U.S. Justice…
