Antitrust Today

For Antitrust Enforcers, Causation Can Be The Matrix

“You see there is only one constant.  One universal.  It is the only real truth.  Causality.  Action, reaction.  Cause and effect.” -- The Merovingian in The Matrix Reloaded Characters in science fiction films such as The Matrix series and The Time Traveler’s Wife have struggled with life-or-death issues of causation.  As highlighted by recent decisions of the U.S. Court of Appeals for the District...

Justice Sotomayor's Pivotal Antitrust Decision

Though Supreme Court Justice Sonia Sotomayor’s nomination hearings made lots of news, the media didn’t spend much time focusing on her antitrust decisions.  But the nation’s newest justice is no stranger to the Sherman Act. Constantine Cannon – as Lead Counsel in its groundbreaking debit card litigation – has first-hand experience with Justice Sotomayor's antitrust jurisprudence.  She authored a pivotal...

Will Congress Nix Resale Price Maintenance?

The chairmen of the House and Senate antitrust subcommittees are just saying no to the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 887 (2007).  Leegin overturned the Supreme Court’s 1911 Dr. Miles decision holding that resale price maintenance was per se illegal.  Both bills seek to reinstitute the per se rule by statute. On January 6, 2009, Chairman Herb Kohl...

Leading Congressional Dems Open Antitrust Front In Healthcare War

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...

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

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...

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

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...

Independent Counsel Could Have Saved Banks Billions In Antitrust Litigation

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...

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

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...

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

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 who together had a high market share in a...

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

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...