Antitrust & Competition Newsletter - April 2015

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U.S. Supreme Court Holds That State Action Immunity Does Not Apply to State Boards If the Board Is Controlled by Active Market Participants
On Feb. 25, 2015, the U.S. Supreme Court held, in a 6-3 decision, that a state board with a controlling number of decision-makers, who are active market participants in the occupation the board regulates, does not enjoy state action immunity from federal antitrust laws unless "the State has articulated a clear policy to allow the anticompetitive conduct, and, the State provides active supervision of [the] anticompetitive conduct." N.C. State Bd. of Dental Exam'rs v. F.T.C., 135 S. Ct. 1101, 1112 (2015). Read more >>

Global Developments

Asia

China's NDRC Provides Guidance Regarding Licensing of Standard-Essential Patents in Qualcomm Decision
On Mar. 2, 2015, China's National Development and Reform Commission ("NDRC") published its decision in the Qualcomm case, which resulted in a $975 million fine against Qualcomm for alleged violations of the Anti-Monopoly Law. Read more >>

China's SAIC Promulgates Regulations on Abuse of Intellectual Property Rights
China's State Administration for Industry & Commerce has published its long-awaited regulations regarding the use of intellectual property rights to eliminate or restrict competition.  The Regulations, which are designed to foster innovation and competition, improve economic efficiency and protect consumer welfare, address both monopolistic agreements and the abuse of dominant market positions resulting from the ownership of IP rights. They go into effect on August 1, 2015. Read more >>

Europe

European Commission Sets Out Its Strategy to Achieve a European Energy Union
On Feb. 25, 2015, the European Commission set out its strategy to achieve a European Energy Union with a forward looking climate change policy ("Framework Strategy"). Reforming and reorganizing Europe's energy policy into a single energy market was outlined as a top priority by Jean-Claude Juncker, President of the Commission, in his political guidelines. Read more >>

Court of Appeal Dismisses Ryanair's Appeal in Connection With a Divesture Order Requiring Ryanair to Reduce Its Stake in Aer Lingus to No More Than 5%
On Feb. 12, 2015, the Court of Appeal to England and Wales dismissed Ryanair's appeal against a judgment of
the UK's Competition Appeal Tribunal ("CAT"). The CAT had, on May 7, 2014, rejected Ryanair's application for review of the findings of the Competition Commission ("CC") in connection with Ryanair's acquisition of a minority shareholding in Aer Lingus. Read more >>

European Commission to Continue Discourse on the Enforcement Gap Related to Minority Shareholdings
The European Union's Commissioner for Competition, Margrethe Vestager, who began her five-year mandate on Nov. 1, 2014, has indicated that there is more work to be done on the Commission's initiative to close an enforcement gap related to minority shareholdings. Read more >>

Court of Justice Contests Its Liability for a Breach Committed by One of Its Own Courts
On Feb. 17, 2015, the Court of Justice of the European Union ("CJEU") brought an appeal before the Court of Justice against an order of the General Court that had found that the CJEU was the correct representative of the EU in an action for damages. Read more >>

General Court Fully Upholds the European Commission's Decision to Block the Merger Between Deutsche Börse and NYSE Euronext
On Mar. 9, 2015, the General Court confirmed the European Commission's decision prohibiting the proposed merger between Deutsche Börse and NYSE Euronext. The merger—which would have brought together the two largest exchanges in the world for European financial derivatives— was blocked by the Commission in February 2012. Read more >>

U.K. Consumer Rights Act Receives Royal Assent
On Mar. 26, 2015, the Consumer Rights Act received Royal Assent. Schedule 8 of the Act, which amends the UK's Competition Act, gives the UK Competition Appeal Tribunal ("CAT") the power to hear stand-alone private damages actions as well as actions arising from an infringement decision with respect to a finding of a cartel or an abuse of dominance. Read more >>

Supreme Court Holds That Federal Natural Gas Act Does Not Preempt State Antitrust ClaimsSupreme Court Holds That Federal Natural Gas Act Does Not Preempt State Antitrust Claims
In Oneok, Inc. v. Learjet, Inc., Case No. 13-271 (Apr. 21, 2015), the U.S. Supreme Court held that the Natural Gas Act did not preempt retail customers' state law antitrust claims against interstate gas pipeline operators for price manipulation. Read More >>

11th Circuit Affirms FTC Ruling that Exclusive Dealing Arrangements Violated Section 5 of the FTC Act
On Apr. 15, 2015, the 11th Circuit affirmed a Federal Trade Commission ruling that McWane, Inc., the dominant producer of domestic pipe fittings, violated Section 5 of the FTC Act when it informed its distributors that unless they bought all of their domestic fittings from McWane, they would lose rebates and be cut off from purchases for 12 weeks. McWane, Inc. v. FTC, No. 14-11363 (11th Cir. Apr. 15, 2015). Read More >>

9th Circuit Affirms Order Blocking Merger of St. Luke's and Saltzer
The U.S. Court of Appeals for the 9th Circuit issued a landmark ruling on February 20, 2015, affirming a district court's order blocking a merger between the St. Luke's Health System ("St. Luke's") and the Saltzer Medical Group ("Saltzer")—the largest independent multi-specialty physician group, including adult primary care, in Nampa, Idaho. Read more >>

Motorola Mobility and AUO File Supreme Court Petitions Seeking Review of Conflicting FTAIA Rulings in the 7th and 9th Circuits
On Mar. 17, 2015, the U.S. Supreme Court was provided an opportunity to review two decisions involving different applications of the Foreign Trade Antitrust Improvements Act ("FTAIA") to Sherman Act claims based on a price-fixing conspiracy involving TFT-LCD panels. Read more >>

9th Circuit Affirms Summary Judgment for Defendant in DVD Rental Case
On Feb. 27, 2015, in In re Online DVD-Rental Antitrust Litig., 779 F.3d 914 (9th Cir. 2015), the U.S. Court of Appeals for the 9th Circuit affirmed a summary judgment for Netflix in an action alleging that Netflix conspired with Walmart to monopolize the online DVD rental market. The court found that the class of consumer plaintiffs had failed to establish antitrust injury. Read more >>

6th Circuit Upholds Preliminary Injunction Blocking Bundled Pricing Policy
On Mar. 25, 2015, the U.S. Circuit Court of Appeals for the 6th Circuit upheld a preliminary injunction against Eastman Kodak Company's pricing policy for Versamark printer ink, finding that the plaintiff, Collins Inkjet Corporation, was likely to succeed on the merits of its claim that the pricing policy constitutes unlawful tying. Read more >>

3d Circuit Vacates Class Certification Order in Blood Reagents Case and Remands for Reconsideration in Light of Supreme Court's Decision in Comcast v. Behrend
On Apr. 8, 2015, the U.S. Court of Appeals for the 3d Circuit vacated a district court order that had certified a class of direct purchasers of traditional blood reagents who asserted price-fixing claims under Section 1 of the Sherman Act. In re: Blood Reagents Antitrust Litig., No. 12-4067, 2015 WL 1543101 at *1 (3d Cir. Apr. 8, 2015). Read more >>

District Court Approves Settlement in High-Tech Anti-Poaching Class Action and Dismisses Complaint in Animation Workers' Anti-Poaching Class Action
On Mar. 3, 2015, U.S. District Judge Lucy Koh granted preliminary approval to a proposed $415 million settlement of a class action concerning alleged anti-solicitation agreements among certain Silicon Valley high-tech companies. 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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