Antitrust and Competition Newsletter - April 2013

by Orrick, Herrington & Sutcliffe LLP
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Top Story

A Modern Look at The Nine Patent Licensing ‘No-Nos’ (Part Two): The Last Five ‘No-Nos’
In the 1970s, Bruce Wilson, a former deputy assistant attorney general at the Department of Justice, developed a well known list of nine patent licensing “no-nos.” In this article, and a previous one, we consider the nine “no-nos” from the perspective of U.S. antitrust law in 2013. Read more >>

Global Developments

United States

Supreme Court Holds That Class Certification Under Rule 23(b)(3) Is Inappropriate if Class Plaintiffs Do Not Show Damages May Be Awarded on a Classwide Basis
On March 27, 2013, in Comcast Corp., et al. v. Behrend, et al., No. 11-864, the U.S. Supreme Court ruled 5-4 that a district court may not certify a class action under Federal Rule of Civil Procedure 23(b)(3) without first determining that damages may properly be awarded on a classwide basis. Read more >>

Supreme Court Bars Class Representatives From Circumventing CAFA By Stipulating to Class Damages Under $5 Million
On March 19, 2013, the U.S. Supreme Court unanimously held in Standard Fire Ins. Co. v. Knowles, No. 11-1450, that class representatives cannot circumvent the Class Action Fairness Act (CAFA) by stipulating to limit their damages claim to less than $5 million to keep their case out of federal court. Read more >>

Supreme Court Reverses 11th Circuit’s Broad Application of State Action Immunity for Local Government Agencies
On Feb. 19, 2013, the U.S. Supreme Court issued a unanimous opinion in FTC v. Phoebe Putney Health System, Inc., 568 U.S. __ (2013), holding that a Georgia law creating and empowering local health authorities to acquire and lease hospitals did not “clearly articulate and affirmatively express” an intent to allow acquisitions substantially lessening competition, and therefore did not trigger so-called state action immunity. Read more >>

11th Circuit Adopts D.C. Circuit’s Standard for “Efficient Enforcer” Prong for Antitrust Standing Test
On March 4, 2013, the 11th U.S. Circuit Court of Appeals issued an opinion in Sunbeam Television Corp. v. Nielsen Media Research, Inc., affirming a lower court ruling that Sunbeam lacked antitrust standing to pursue Section 2 claims alleging exclusionary conduct by Nielsen, which held an undisputed monopoly in the market for “television audience measurement services,” or television ratings. Read more >>

3rd Circuit Rejects Baby Products Cy Pres Class Action Settlement
On Feb. 19, 2013, the 3rd U.S. Circuit Court of Appeals in In re Baby Products Antitrust Litigation, vacated the district court’s approval of a class action settlement that included a cy pres provision because there was not sufficient information to determine whether the settlement provided an adequate direct benefit to the class members. Read more >>

9th Circuit Revives California Cartwright Act Claims in TFT-LCD Antitrust Litigation
On Feb. 14, 2013, the 9th U.S. Circuit Court of Appeals revived AT&T’s California Cartwright Act claims against various manufacturers of thin film transistor liquid crystal display screens in AT&T Mobility LLC v. AU Optronics Corp., No. 11-16188. Read more >>

Jury Renders Price-Fixing Verdict Against Vitamin C Manufacturers Despite Assertion of Foreign Sovereign Compulsion Defense
On March 14, 2013, the jury in In re Vitamin C Antitrust Litigation, 06-MD-1738 (E.D.N.Y.) returned a $54.1 million verdict ($162.3 million post-trebling) for the direct purchaser class plaintiffs after a trial that lasted nearly three weeks. Read more >>

DOJ Declines to State Enforcement Intentions Regarding Proposed Intellectual Property Rights Exchange
On March 26, 2013, the Department of Justice issued a business review letter in which it declined to state its enforcement intentions regarding a proposed exchange for the trading of unit license rights (ULRs) to sets of patents. Read more >>

Parties Reach for Settlement in DOJ Beer Merger Challenge While Private Plaintiffs Sue to Block Merger
On Jan. 31, 2013, the Department of Justice filed an antitrust lawsuit challenging Anheuser-Busch InBev’s proposed acquisition of total ownership and control of Grupo Modelo, a Mexican company that owns the Corona brand. Read more >>

DOJ Challenges the Bazaarvoice-PowerReviews Merger
On Jan. 10, 2013, the U.S. Department of Justice sued Bazaarvoice Inc., alleging that its acquisition of PowerReviews Inc. in June 2012 substantially lessened competition in the market for online platforms for product ratings, and therefore violated Section 7 of the Clayton Act. Read more >>

Europe

European Commission Blocks Two Mergers
The European Commission recently blocked two proposed mergers—UPS’s takeover of TNT and Ryanair’s takeover of Aer Lingus—despite offers by both sets of parties to make divestments. Read more >>

European Commission Publishes Draft of New Technology Block Exemption Regulation and Revised Guidelines
On Feb. 20, 2013, the European Commission published for consultation a draft of a new technology transfer block exemption regulation (TTBER) and accompanying guidelines. Read more >>

UK Government Publishes Response to its Consultation on Reform of Private Damages in Competition Law
The UK Government has published its response to its 2012 consultation on private damages in competition law. Read more >>

EU Court Prevents Publication of Confidential Information by European Commission
The General Court of the European Union has granted an interim injunction preventing the European Commission from revealing confidential information about participants in a cartel. Read more >>

Asia

Chinese Regional Court Makes Landmark FRAND Judgment
On Feb. 4, 2013, the Intermediate People’s Court in China’s southern city of Shenzhen issued a landmark decision, ruling that U.S. company InterDigital violated China’s Anti-Monopoly Law (AML) by charging excessive royalties and tying the licensing of essential patents to the licensing of non-essential patents. Read more >>

Chinese Court Rules State-Controlled Company Abused Dominance in Local Broadcasting Services Market
The Xi’an Intermediate Court in western China’s Shaanxi province recently ruled that Shaanxi Broadcast and TV Network Intermediary Group (“Shaanxi TV”) abused its dominance in the provincial cable TV transmission service market. Read more >>

China’s National Development and Reform Commission Fines Two Liquor Manufacturers for Resale Price Maintenance
On Feb. 22, 2013, China’s antitrust regulators announced that they had imposed a total penalty of around RMB 449 million ($71.5 million) for resale price maintenance by two state-owned liquor companies, Wuliangye Yibin and Kweichow Moutai. Read more >>

Re-filing Trend Emerging in MOFCOM Merger Reviews
China’s Ministry of Commerce (MOFCOM) recently asked some companies to re-file their transactions for approval in cases where the initial, three-stage review period has been almost exhausted but the parties have failed to reach agreement about remedies. Read more >>

New Legislation Proposed in Korea to Allow Private Antitrust Damages Lawsuits
Dao-Young Kim, head of the Korean Fair Trade Commission’s (KFTC) international division, announced recently that the KFTC has proposed new legislation that would open the door for private antitrust enforcement in Korea. Read more >>

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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