Antitrust and Competition Newsletter - April 2013

by Orrick, Herrington & Sutcliffe LLP

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 >>


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 >>


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.

© Orrick, Herrington & Sutcliffe LLP | Attorney Advertising

Written by:

Orrick, Herrington & Sutcliffe LLP

Orrick, Herrington & Sutcliffe LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.