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Antitrust Today

Leading Congressional Dems Open Antitrust Front In Healthcare War

Posted  09/22/09
The Chairmen of the House and Senate Judiciary Committees have joined forces to open a new – antitrust – front in the war for healthcare reform.  The two leading Democrats are seeking to boost healthcare reform with a partial repeal of an antitrust exemption that’s about as old as Democrats’ efforts to enact universal healthcare. On September 17, 2009, Chairman John Conyers (D.-Mich.) of the House Judiciary Committee and Chairman...

Antitrust & Election Systems Collide: The Contested ES&S/Diebold Merger

Posted  09/18/09
In the 2000 Presidential election, Americans became painfully aware of the dirty secret of their democracy -- that the integrity of our elections depends on a messy patchwork of voting machines that use disparate and often archaic systems.  Since then, efforts have been made to improve and standardize the system but the weaknesses of the system remain and are particularly apparent in contested close elections.  Now the integrity of our...

A Warning For Corporate Parents In The EU’s Akzo Nobel Case

Posted  09/16/09
Being a parent means great responsibilities – especially if you’re a corporate parent with subsidiaries active in the European Union.  As a result of the European Commission’s Akzo Nobel case, such corporate parents now face greater antitrust liability for the conduct of their 100%-owned subsidiaries. On September 10, 2009, the European Court of Justice dismissed Akzo Nobel’s appeal of a 2007 judgment of the Court of First Instance.  The 2007...

Independent Counsel Could Have Saved Banks Billions In Antitrust Litigation

Posted  08/14/09
Could banks have saved billions of dollars in antitrust settlements if they had turned to independent antitrust counsel before entrusting their fate to Visa and MasterCard? In the Visa and MasterCard antitrust litigations of the past 12 years, it appeared that many banks did not rely on independent counsel to evaluate or sanction practices that raised serious antitrust issues.  Rather, the banks seemed to have wholly entrusted the case to...

The Long-Term View Could Have Saved The Banks From Many A Pitfall

Posted  07/16/09
When the history of the recent Global Financial Crisis is written, the short-term thinking that has infected financial markets is likely to be identified as one of the main culprits.  The current credit crisis underscores how essential it is for banks to consider the long-term economic consequences of their decisions. As the law firm that spearheaded historic antitrust litigation against Visa and MasterCard’s credit and debit card policies, Constantine Cannon...

A Weakened Firm Defense Can Be Strong If The Competitive Threat Is Weak

Posted  07/7/09
Just how weak does a company have to be to rely on a weakened firm defense in a merger analysis?  While the case law is sparse, courts have found such a defense compelling when one of the parties to a merger has been too weak to be a competitive threat. In United States v. General Dynamics Corp., 415 U.S. 486 (1974), the Supreme Court approved a merger between coal producers...

Supreme Court: Resale Price Maintenance No Longer Per Se Illegal; States: Not So Fast

Posted  06/26/09
The Supreme Court’s 2007 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, overruled the per se rule applying to resale price maintenance and replaced it with a rule of reason analysis.  Nevertheless, 13 states still forbid resale price maintenance, and the adherence of another eight states to federal precedent remains an open question. Moreover, 37 states filed an amici curiae brief with the Supreme Court...

A Five-Year Anniversary For A Major Standard-Setting Antitrust Law

Posted  06/24/09
Five years ago this month, a new federal law aimed at encouraging standard-setting activities took effect – the Standards Development Organization Advancement Act (SDOAA) of 2004.  Why did Congress pass it?  And five years later, how has it fared? In many industries, non-profit “standards development organizations” (SDOs) collaborate with businesses to develop industry-wide standards – from common light bulb sizes to uniform tests of concrete strength.  This work is generally...

Think Indirect Purchaser Liability is Dead? Think Again.

Posted  06/22/09
Since the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, plaintiffs have not been able to recover damages suffered by indirect purchasers from anticompetitive conduct stemming from §1 of the Sherman Act.  While this bar has existed for more than 30 years, plaintiffs are not without recourse. That’s because more than 25 states enacted laws, sometimes called “Illinois Brick repealers,” that specifically permit recovery for...

Bundled Discounts – Good For Competition?

Posted  06/10/09
The Supreme Court’s decision in Pacific Bell Telephone Co. v. linkLine Communications, Inc., 129 S.Ct. 1109 (2009), suggests that the Court will apply predatory pricing analysis to all antitrust claims with an aspect of low pricing. So it follows that bundled-discounting claims would likely receive the same treatment from the Court that price squeeze claims did.  A bundled discount is where a firm grants a discount on one product if...
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