Antitrust and Competition Newsletter - February 2014

by Orrick, Herrington & Sutcliffe LLP
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Global Developments

United States

U.S. Supreme Court Holds That Parens Patriae Suits Are Not Removable to Federal Court as “Mass Actions” Under the Class Action Fairness Act
On Jan. 14, 2014, the U.S. Supreme Court held that a parens patriae antitrust suit filed in state court by Mississippi’s Attorney General seeking damages on behalf of the citizens of Mississippi was not removable to federal court under the Class Action Fairness Act of 2005. Read more >>

2nd Circuit Rejects DOJ’s “Continuing Conspiracy” Theory in Overturning Criminal Convictions Under the Sherman Act
On Dec. 9, 2013, a 2-1 panel of the 2nd U.S. Circuit Court of Appeals overturned the convictions of three former General Electric Co. officials, and placed a limit on the government’s use of the continuing conspiracy theory to avoid the applicable statute of limitations. Read more >>

6th Circuit Reverses Order Granting Summary Judgment Against Monopolization Claims, Holding That “Quick Look” Rather Than “Rule of Reason” Applied
On Jan. 3, 2014, the 6th U.S. Circuit Court of Appeals revived a price-fixing suit brought by milk retailers, reversing the district court’s grant of summary judgment in favor of defendants. Read more >>

DOJ Prevails in Trial Challenging Bazaarvoice’s Consummated Acquisition of PowerReviews
On Jan. 8, 2014, Judge William Orrick of the U.S. District Court for the Northern District of California, issued an order after a three-week trial ruling that Bazaarvoice, a provider of Ratings and Reviews platforms to companies involved in online commerce, violated Section 7 of the Clayton Act, 15 U.S.C. § 18, when it acquired its primary competitor, PowerReviews. Read more >>

District Court Rules That FTAIA Bars a U.S. Manufacturer’s Price-Fixing Claims Based on Its Foreign Affiliates’ Purchases of Price-Fixed Goods From a Foreign Manufacturer
On Jan. 23, 2014, Judge Joan B. Gottschall of the U.S. District Court for the Northern District of Illinois, ruled that Motorola’s price-fixing claims based on purchases that its non-U.S. affiliates made from non-U.S. defendants were barred under the Foreign Trade Antitrust Improvement Act. Read more >>

District Court Denies Motion to Dismiss Section 1 and Section 2 Claims Brought by PAE Against Patent Aggregator That Refused to License PAE’s Patents
In one of the latest battles at the nexus between antitrust and patent law, on Dec. 3, 2013, Judge Yvonne Gonzalez Rogers in the U.S. District Court for the Northern District of California allowed antitrust claims by Cascades Computer Innovation LLC to proceed against RPX Corp. and a number of Android device manufacturers. Read more >>

FTC Enters Into Proposed Settlements Curbing Anticompetitive Behavior in Two Trade Associations
On Dec. 16, 2013, the U.S. Federal Trade Commission announced that it had reached proposed settlements with two professional associations to eliminate provisions in their codes of ethics that purportedly limited competition among their members. Read more >>

FTC Establishes New Thresholds for Reporting Mergers and Acquisitions Under Hart-Scott-Rodino Act
On Jan. 23, 2014, the U.S. Federal Trade Commission announced new Hart-Scott-Rodino filing thresholds for mergers and acquisitions. Read more >>

Europe

Commission Fines Johnson & Johnson and Novartis €16 Million for Reverse Payment Regarding Generic Painkiller
On Dec. 10, 2013, the European Commission announced fines of €10.8 million ($14.7 million) imposed on Johnson & Johnson and €5.5 million ($7.5 million) on Novartis for colluding to postpone the entry of a generic version of pain relief drug fentanyl into the Dutch market. Read more >>

Commission Accepts Commitments From Deutsche Bahn to Address Margin-Squeeze Concerns
On Dec. 18, 2013, the European Commission announced that it accepted binding commitments from Deutsche Bahn to resolve concerns that its pricing system for traction current (the electricity used to power trains) in Germany favored DB-owned entities over competitors. Read more >>

DGComp’s Alexander Italianer Speaks on Commitments
On Dec. 11, 2013, in a speech delivered at the CRA Competition Conference in Brussels, Alexander Italianer, the European Commission’s Director-General for Competition, clarified the Commission’s approach in the negotiation of commitments. Read more >>

UK Chancellor Pledges to Increase Funding for Competition and Markets Authority in Autumn Statement
On Dec. 5, 2013, the Chancellor of the Exchequer delivered the UK’s annual Autumn Statement for 2013. Included in the announcement were plans to increase the funding for the new Competition and Markets Authority for 2014-2015. Read more >>

CMA Publishes Draft Prioritisation Principles
On Jan. 22, 2014, the UK Competition and Markets Authority published its draft Prioritisation Principles and Annual Plan for 2014/15. Read more >>

Asia

Guangdong AIC Imposes Penalties on Huizhou Daya Bay Yiyuan Purified Water for Abuse of Dominance
On Dec. 16, 2013, the Guangdong provincial Administration for Industry and Commerce issued a Written Decision of Administrative Penalty to penalize Huizhou Daya Bay Yiyuan Purified Water for abuse of dominance through bundled sales. Read more >>

Shaanxi High People’s Court Rules That Bundled Sales of Cable TV Services Does Not Violate Antimonopoly Law
The Shaanxi High People’s Court has formally issued its Sept. 12, 2013 verdict overturning the first instance judgment of a Xi’an Intermediate People’s Court ruling that Shaanxi Broadcast and TV Network Media’s sales of its cable TV services to a consumer did not constitute bundled sales in violation of the Antimonopoly Law of the People’s Republic of China. Read more >>

SAC, SIPO Publish Interim Rules on National Standards Involving Patents
On Dec. 19, 2013, the Standardization Administration of China and State Intellectual Property Office published the Administrative Regulation on National Standards Involving Patents-Interim, which concerns the formulation and implementation of national standards involving patents. Read more >>

Japan Fair Trade Commission Sends Advance Notice of Fines and Cease and Desist Orders to Marine Transport Companies
On Jan. 9, 2014, three marine transport companies individually announced that the Japan Fair Trade Commission has sent them an advance notice of a surcharge payment order and a cease and desist order, in connection with the agency’s investigation into alleged price-fixing on automobile shipments from Japan to North America and Europe. Read more >>

Korea Fair Trade Commission Fines Korean Subsidiaries of Auto Parts Manufacturers for Bid Rigging
On Dec. 23, 2013, the Korea Fair Trade Commission announced that it imposed fines on foreign auto parts manufacturers and their Korean subsidiaries, in aggregate amounts of 114.6 billion Korean won ($109.1 million), for fixing prices on windshield wipers and instrument panel clusters. 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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