Orrick's Antitrust and Competition Newsletter - August 2014

Global Developments


China’s MOFCOM Blocks ‘P3 Alliance’ Despite EU, U.S. Non-Opposition
On June 17, 2014, China’s Ministry of Commerce, China’s competition regulator, prohibited the proposed “P3 Alliance” that would have combined the world’s three largest container carriers on certain shipping routes. Read more >>

Inner Mongolia AIC Fines Fireworks Wholesalers for Market Division Under China’s Anti-Monopoly Law
China’s State Administration on Industry and Commerce recently published Inner Mongolia AIC’s May 2014 decision imposing fines totaling 583,700 RMB (U.S.$94,800) on six fireworks wholesale companies in Chifeng, Inner Mongolia, for unlawful market division under the Anti-Monopoly Law. Read more >>

China’s SAIC Issues New Draft of Antitrust Regulations for Intellectual Property Rights
China’s State Administration for Industry and Commerce has issued a new draft of its regulations governing antitrust enforcement of intellectual property rights. Read more >> 

Beijing High Court Upholds Decisions Finding Violation of AML by Seafood Trade Association
China’s Beijing High Court has upheld the Beijing Second Intermediate Court’s September 2013 decision in Lou, Binglin v. Beijing Seafood Wholesale Industry Association, the first case in which a court found a violation of the Anti-Monopoly Law (AML) through horizontal monopolistic agreements since the AML was promulgated in 2008. Read more >>


European Court Rejects Appeal Challenging the Commission’s Dawn Raid Powers
On June 25, 2014, the Court of Justice of the European Union dismissed a challenge brought against the European Commission by the French cable manufacturer Nexans SA in which it sought to challenge the Commission’s powers to seize documents in dawn raids. Read more >>

European Court Upholds Fine Against Electrabel for ‘Gun-Jumping’
On July 3, 2014, the Court of Justice of the European Union upheld the decision of the European Commission to impose a €20 million fine (about U.S.$27 million) on Electrabel SA for implementing its acquisition of Compagnie Nationale du Rhone without prior approval. Read more >>

European Commission Sets Out Proposals for Changes to Merger Rules
On July 9, 2014, the European Commission (Commission) launched a public consultation on proposals contained in its White Paper, “Towards More Effective EU Merger Control.” Read more >>

Commission Adopts Revised Rules for Agreements of Minor Importance (De Minimis)
On June 25, 2014 the European Commission issued a revised Notice on agreements of minor importance (De Minimis Notice), which are not subject to the prohibition of Article 101(1) of the Treaty of the Functioning of the European Union. Read more >>

French Supreme Court (Cour de Cassation) Strengthens the Right of Lawyer’s Presence During Dawn Raids
On June 26, 2014, the criminal chamber of the Cour de Cassation held that during antitrust procedures, the defendants’ rights of defense must be respected during the entire procedure, including during the preliminary inquiry and especially dawn raids. Read more >>

Higher Regional Court of Schleswig, Germany, Rules That Ban on Sales Via Online Marketplaces Infringes Competition Law
The Court confirmed the view of the court of first instance that a ban on sales via third-party platforms is a restriction of competition both by object and by effect and, therefore, an infringement of competition law. Read more >>

United States

U.S. Supreme Court To Determine Whether Natural Gas Act Preempts Price-Fixing Claims
On July 1, 2014, the U.S. Supreme Court granted review to determine whether the Natural Gas Act preempts price-fixing claims in multidistrict litigation against energy companies. Read more >>

U.S. Supreme Court to Hear Libor Antitrust Appeal to Resolve Circuit Split Regarding Appealability of Orders Before Entry of a Final Judgment in an MDL Proceeding
On June 30, 2014, the U.S. Supreme Court agreed to consider whether bondholder plaintiffs accusing several banks of violating antitrust law by rigging Libor had the right to immediately appeal the dismissal of their case even though the broader multidistrict litigation is still ongoing. Read more >>

9th Circuit Upholds Criminal Judgment and $500 Million AUO Antitrust Fine for LCD Price-Fixing Conspiracy
On July 10, 2014, the 9th U.S. Circuit Court of Appeals denied an appeal by AU Optronics Corp. and two of its former executives to reverse a $500 million criminal judgment for participating in a conspiracy to fix the prices of liquid crystal display panels. Read more >>

7th Circuit Grants Motorola’s Petition for Interlocutory Appeal of FTAIA Decision Eliminating 99 Percent of Its Claim in LCD Price-Fixing Case
On July 15, 2014, the 7th U.S. Circuit Court of Appeals granted Motorola’s petition for interlocutory appeal of a district court decision that held 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 >>

2nd Circuit Affirms Dismissal of Monopolization Claim Alleging That Pharmaceutical Manufacturer Failed to Supply Competitors With Unbranded Version of Drug
On June 9, 2014, the 2nd U.S. Circuit Court of Appeals affirmed a district court ruling that wholesale dealers of the prescription drug Adderall XR failed to state a claim against the manufacturer of the drug based on allegations that it did not fulfill supply contracts with competitors that were reached in settling Hatch-Waxman litigation. Read more >>

District Court Dismisses With Prejudice PNY’s Exclusive Dealing and Attempted Monopolization Claims Against SanDisk
On July 2, 2014, in PNY Technologies, Inc. v. SanDisk Corp., the U.S. District Court for the Northern District of California dismissed with prejudice PNY’s exclusive dealing and attempted monopolization claims relating to flash memory drives. Read more >>

FTC Settles Charges Under Section 5 for Barcode Resellers’ Invitations to Collude
On July 21, 2014, two Internet resellers of UPC barcodes settled charges by the U.S. Federal Trade Commission that they violated Section 5 of the FTC Act by inviting competitors to collude. Read more >>

FTC Approves Final Orders Settling Charges That Ski Equipment Manufacturers Agreed Not to Compete for Ski Endorsers or Employees
On July 9, 2014, the U.S. Federal Trade Commission announced that, pursuant to Section 5 of the FTC Act, it had approved two final orders settling charges that two ski equipment manufacturers—Market Volko (International) and Tecnica Group S.p.A—agreed for many years not to compete for one another’s ski endorsers or employees. 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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