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The Antitrust Week In Review

Posted  September 20, 2021

Here are some of the developments in antitrust news this past week that we found interesting and are following.

Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary.  The Federal Trade Commission voted to withdraw its approval of the Vertical Merger Guidelines, issued jointly with the Department of Justice (DOJ), and the FTC’s Vertical Merger Commentary. The FTC stated that the guidance documents, which were published in 2020, include unsound economic theories that are unsupported by the law or market realities. The FTC is withdrawing its approval in order to prevent industry or judicial reliance on a flawed approach. In voting to withdraw, the FTC reaffirmed its commitment to working closely with the DOJ to review and update the agencies’ merger guidance.

Plaintiffs press 2nd Circ. to revive Chinese vitamin C antitrust case.  Two U.S.-based companies that purchase vitamin C from sources abroad urged a federal appeals court to revisit a panel decision that shut down an antitrust lawsuit claiming Chinese exporters had unlawfully conspired to fix the price and supply of the nutrient. A 2nd U.S. Circuit Court of Appeals panel in August ordered the dismissal of the lawsuit against Chinese companies Hebei Welcome Pharmaceutical Co Ltd and North China Pharmaceutical Group Corp. The panel judges, voting 2-1, concluded there was a “true conflict” between U.S. and Chinese antitrust law that meant the defendants could not comply with U.S. legal provisions. In their petition seeking en banc review or panel rehearing, lawyers for Texas-based Animal Science Products Inc and New Jersey-based Ranis Co Inc argued that the panel decision, if left in place, “invites judicial micromanagement of foreign policy powers reserved to the political branches.”

U.S. to award Newark flights to low-cost carrier to spur competition.  The Biden administration announced on Thursday that it plans to award 16 slots for flights at Newark International Airport in New Jersey to a yet-to-be-determined low-cost carrier and said it could take action to boost competition at other major airports. The U.S. Justice Department, which had urged the Transportation Department to not retire the slots and instead use them to spur competition, said it would work “to address similar concerns at capacity-constrained airports.” “Low-cost carriers play an important role in keeping the airline industry competitive and the immense power of the major airlines in check,” Richard Powers, the acting head of the Justice Department’s Antitrust Division, said in a statement.

U.S. panel votes to approve $1 billion for FTC privacy probes.  The U.S. House Energy and Commerce Committee voted to give the Federal Trade Commission $1 billion to set up a bureau dedicated to improving data security and privacy and fighting identity theft. The proposal, which Democrats included in a $3.5 trillion spending measure, would fund a new bureau over 10 years to address “unfair or deceptive acts or practices relating to privacy, data security, identity theft, data abuses, and related matters,” according to a summary released by the panel.

Edited by Gary J. Malone 

Tagged in: Antitrust Enforcement, Antitrust Litigation,