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House Judiciary Committee To Consider Leegin Repeal Legislation

Posted  12/1/09

The chairman of the House Judiciary Committee, Rep. John Conyers (D.-Mich.), has announced that the Committee will meet to consider H.R. 3190 (the “Discount Pricing Consumer Protection Act of 2009”) tomorrow.  The bill would reverse the effects of the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 887 (2007)Leegin overruled a 1911 Supreme Court decision holding...

GAO Follows Congress's Punt On Interchange Fees With Its Own Punt

Posted  12/1/09
The question of whether Congress, or the Federal Reserve, is serious about taking steps to contain the escalating costs of interchange to merchants and consumers has resonated for years.  And for years the stock answer to that question was that such action was unlikely. The outlook for regulatory action seemed to improve last year when the regulatory climate in Washington changed.  It now appears that the...

Three House Dems Heed Plaintiffs’ Pleading Pleas

Posted  11/13/09
Three Democrats in the House of Representatives are pushing to roll back heightened pleading standards adopted by the Supreme Court that have led to thousands of antitrust and other cases being dismissed at the pleading stage. The legislators are taking aim at two recent Supreme Court decisions that make it more difficult for plaintiffs to have their civil cases heard in federal court.  In an antitrust case, the...

Congressional Dems Following Up On Repeal Of Health Insurers’ Antitrust Exemption

Posted  10/21/09
Congressional Democrats took another step today towards stripping the health insurance industry of the antitrust exemption it has enjoyed for more than six decades. The House Judiciary Committee voted 20 to 9 to repeal the antitrust exemption health insurers have under the 1945 McCarran-Ferguson Act.  Democrats on the committee are seeking to include the repeal in the House health care reform bill that is now...

Senate Dems Eye Repeal Of Health Insurers’ McCarran-Ferguson Antitrust Exemption

Posted  10/20/09
Democrats on the Senate Judiciary Committee are going after health and medical malpractice insurers after a leading industry group turned against the Senate Finance Committee’s version of health care reform… and the DOJ may not be far behind. Last Tuesday, America’s Health Insurance Plans (“AHIP”), a trade group for health insurers, released a PriceWaterhouseCoopers report indicating that the Senate...

Pressure Builds For Legislative Repeal Of Supreme Court Decisions That Raised Pleading Standards

Posted  10/8/09
The United States Supreme Court in the last two years has given defendants in federal civil cases two key victories.  Now, a powerful Senator has joined with plaintiffs’ groups in introducing a bill to repeal those decisions. The two decisions – 2007’s Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and this year’s Ashcroft v. Iqbal, 129 S.Ct. 1937 – concern the level of detail that a plaintiff must...

Will Congress Nix Resale Price Maintenance?

Posted  09/22/09
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

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...

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

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...

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