Orrick's Antitrust and Competition Newsletter - April 2014

by Orrick, Herrington & Sutcliffe LLP
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A Year Later: Comcast's Impact On Antitrust Class Actions
On March 27, 2013, the U.S. Supreme Court issued its decision in Comcast Corp. v. Behrend, overturning an order certifying an antitrust class action under Federal Rule of Civil Procedure 23(b)(3), which requires that questions of law or fact common to class members predominate over questions affecting only individual members. W
hat effect is Comcast having on class certification in antitrust cases? Read more >>

Global Developments

United States

U.S. Supreme Court Establishes Uniform Test for Standing to Bring False Advertising Claims Under Section 43(a) of the Lanham Act
On March 25, 2014, a unanimous U.S. Supreme Court established a uniform test to determine whether a plaintiff has standing to bring a false advertising claim under section 43(a) of the Lanham Act. Read more >>

U.S. Supreme Court to Decide When Professional Licensing Bodies Enjoy Antitrust Immunity
On March 3, 2014, the U.S. Supreme Court accepted for review North Carolina State Board of Dental Examiners v. FTC, where it will decide whether a state agency that consists of professionals who regulate their own profession qualifies as an arm of the state, or whether it is more akin to a private actor that must meet the “actively supervised” requirement to enjoy antitrust immunity. Read more >>

7th Circuit Holds That the 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 March 27, 2014, the 7th U.S. Circuit Court of Appeals affirmed a district court decision 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 FTAIA. Read more >>

9th Circuit Dismisses LSI’s Appeal of Injunction That Kept LSI From Enforcing Import Ban Against Realtek
On March 20, 2014, the 9th U.S. Circuit Court of Appeals in an unpublished memorandum opinion dismissed LSI Corp.’s appeal of a preliminary injunction that blocked it from enforcing a potential import ban against Realtek Semiconductor Corp. Read more >>

Ohio District Court Certifies Price Discrimination Class Under Robinson-Patman Act
In Williams v. Duke Energy Corp., the U.S. District Court for the Southern District of Ohio certified a class of direct purchasers of electricity. The class alleged that a power company settled objections of certain large customers to a rate-stabilization plan in return for unlawful and substantial rebates to those customers. Read more >>

McWane Dismissal Breaks FTC’s “Winning Streak,” But Enforcement Implications Are Unclear
On Feb. 6, 2014, the FTC dismissed six of the seven unfair competition claims it brought under Section 5 of the FTC Act against McWane, Inc., the leading domestic producer of iron pipe fittings in the United States. Read more >>

Federal Court Dismisses Antitrust Action Against U.S. Hotel Companies and Online Travel Companies
On Feb. 18, 2014, the U.S. District Court for the Northern District of Texas dismissed an antitrust lawsuit that accused U.S. hotel companies and online travel agencies of conspiring to fix the online prices of hotel rooms. Read more >>

DOJ Announces Streamlined Procedures to Modify or Terminate Old Settlements and Litigation
On March 28, 2014, the U.S. Department of Justice’s Antitrust Division announced that it has updated procedures for parties seeking to modify or terminate perpetual decrees—settlements and litigated judgments—entered prior to 1980. Read more >>

DOJ Launches New Criminal Antitrust Section
The U.S. Department of Justice has opened a new section focused on criminal antitrust enforcement to address the division’s workload. Read more >>

Europe

EC Adopts Revised Regime for Technology Transfer Agreements
On March 21, 2014, the European Commission adopted a new package of rules for the assessment of technology transfer agreements under EU competition law. Read more >>

EU Advocate General Confirms Availability of "Umbrella Claims" Against Cartel Members
In her recent opinion to the Court of Justice of the European Union, Advocate General Juliane Kokott stated that loss resulting from “umbrella pricing” is recoverable from cartel members. Read more >>

Court of Justice Clarifies Status of Monopolistic Royalty-Collecting Societies Under EU Law
The Court of Justice of the European Union has held that collecting societies with exclusive rights to gather royalties for protected works do not contravene Article 56 of the TFEU. Read more >>

Court of Justice Overturns General Court on Access to Commission’s Files by Potential Damages Claimants
The Court of Justice of the EU ruled on Feb. 27, 2014 that the European Commission was entitled to refuse Energie Baden-Wurttemberg AG full access to the Commission’s file relating to the gas insulated switchgear cartel. Read more >>

EC Opens Investigation of Specialty Paper Companies for Providing Misleading Data in Merger Review
On Feb. 25, 2014, the European Commission announced it is investigating the alleged provision of misleading market data by the parties to the Ahlstrom-Munksjö merger. Read more >>

France Adopts New Consumers’ Rights Law
On Feb. 13, 2014, the French National Assembly adopted the so-called “loi Hamon,” an Act of Parliament related to consumers’ rights and, supplier-distributor relations. Read more >>

Competition Commission Formally Clears Two Mergers in Concentrated Markets
In March 2014, following its provisional findings in the previous month, the UK Competition Commission formally cleared two mergers that resulted in the reduction of competitors in the relevant markets from four to three and three to two respectively. Read more >>

Office of Fair Trading Accepts Binding Commitments From Booking.com, Expedia and IHG
The UK OFT has accepted binding commitments from Booking.com B.V., Expedia, Inc. and InterContinental Hotels Group plc, which address concerns that restrictions on discounting a hotel's room-only accommodation rate may limit competition between online travel agents (OTAs) and between OTAs and hotels, and may create barriers to entry into the market for new OTAs. Read more >>

Asia

Japan Fair Trade Commission Fines Marine Transport Companies 22.7 Billion JPY
On March 18, 2014, the Japan Fair Trade Commission announced it had fined four marine transport companies a total of 22,718,480,000 JPY ($227 million) for engaging in price-fixing activities and violating the Japanese Antimonopoly Act. Read more >>

Shanghai High People’s Court Rules That Resale Price Maintenance Agreement Constitutes Monopolistic Agreement
The Shanghai High People’s Court recently made available its Aug. 1, 2013 final judgment overruling the Shanghai First Intermediate Court’s judgment in a case brought by a domestic medical distributor, Beijing Rainbow Medical Equipment Technology & Trading Company against Johnson & Johnson’s China operations. Read more >>

MOFCOM Issues Interim Provisions for Standards of Simple Cases Related to Concentration of Business Operators
In order to specify the applicable standards for simple cases of concentration-of–business-operators, China's MOFCOM put into effect a simplified merger review system as of Feb. 12, 2014. 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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