Antitrust and Competition Newsletter - October 2013

by Orrick, Herrington & Sutcliffe LLP

Top Story

Six Months Since Comcast: What Do Recent Decisions Mean For Antitrust Practitioners?
Every antitrust lawyer should be familiar with the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). Although courts have applied Comcast inconsistently, the decisions thus far suggest that Comcast may have a greater effect on class certification in antitrust cases than in other areas. This article summarizes the decision, provides a high-level overview of decisions since Comcast, and offers some thoughts on what these cases tell us about Comcast's likely effects on antitrust class actions. Read more >>

Global Developments

United States

10th Circuit Affirms Judgment in Favor of Microsoft in Novell Case
On Sept. 23, 2013, the 10th U.S. Circuit Court of Appeals affirmed a judgment as a matter of law (following a jury trial) dismissing Novell’s monopolization claim against Microsoft. Read more >>

D.C. Circuit Applies Comcast v. Behrend to Overturn Class Certification in Rail Freight Fuel Surcharge Litigation
On Aug. 9, 2013, the D.C. Circuit Court of Appeals, in a unanimous decision, overturned the district court’s order granting certification of a class of direct purchasers in In re Rail Freight Fuel Surcharge Antitrust Litigation. Read more >>

7th Circuit Rules That Clayton Act § 12’s Venue and Service-of-Process Provisions Must Be Read Together
On Aug. 2, 2013, the 7th U.S. Circuit Court of Appeals, in a unanimous decision, held that when a plaintiff sues a corporate defendant in an antitrust case, it must elect to proceed under Section 12 of the Clayton Act or under 28 U.S.C. § 1391 for purposes of venue and personal jurisdiction, and it cannot mix and match the two sections. Read more >>

5th Circuit Reverses Judgment Against Pilgrim’s Pride for Taking Unilateral Steps to Reduce Production With the Goal of Raising Prices
On Aug. 28, 2013, the 5th U.S. Circuit Court of Appeals issued an order overturning a district court judgment against Pilgrim’s Pride, a large producer of processed chicken, for unilaterally reducing its output of chickens in order to reduce an oversupply of chicken that resulted in financial losses. Read more >>

Toshiba Prevails Against Best Buy in LCD Price-Fixing Trial; HannStar Loses Civil Trial After Pleading Guilty in Criminal Investigation
On Sept. 3, 2013, a federal jury returned a verdict in Best Buy’s suit against Toshiba Corp. and HannStar Corp., based on an alleged conspiracy to fix prices of TFT-LCD panels. Read more >>

FTC and DOJ Issue Updated Model Waiver of Confidentiality for International Civil Matters
On Sept. 25, 2013, the FTC and the DOJ issued an updated joint model waiver of confidentiality for individuals and companies to use in merger and non-merger matters involving concurrent review by the DOJ or FTC and non-U.S. competition authorities. Read more >>

FTC Announces Study of Patent Assertion Entities
On Sept. 27, 2013, the Federal Trade Commission announced that it will conduct a study concerning Patent Assertion Entities and other entities asserting patents in the wireless communication sector, including manufacturers and other non-practicing entities engaged in licensing. Read more >>


UK Competition Authority Requires Ryanair to Cut Stake in Aer Lingus
Following an in-depth investigation, the CC found that Ryanair’s minority shareholding had led or may be expected to lead to a substantial lessening of competition between the airlines on routes between Great Britain and Ireland. Read more >>

Commission Approves Failing Firm Defense
On Sept. 2, 2013, the European Commission approved the acquisition of Shell Deutschland Oil GmbH’s Harburg refinery assets by Swedish company Nynas AB, finding that, in the absence of the proposed transaction, the Harburg refinery would be closed. Read more >>

Commission Adopts New Regulatory Framework for Electronic Payment Services
On July 24, 2013, the European Commission announced the adoption of broad new legislative proposals to replace the 2007 Payment Services Directive that include a new Payment Services Directive and measures to regulate interchange fees for card-based payment transactions. Read more >>

General Court Clarifies Commission’s Powers to Conduct Dawn Raids
In a judgment of Sept. 6, 2013, the European Union General Court upheld the legality of unannounced inspections carried out by the Commission at Deutsche Bahn in 2011, confirming that the use of the Commission’s powers does not infringe the fundamental rights of the target and can be carried out without prior judicial authorisation. Read more >>

Court Orders Re-Examination of German Cable Acquisition
On Aug. 14, 2013, a regional court in Düsseldorf ordered the German cartel office to re-examine the €3.2 billion purchase of the cable firm Kabel BW by John Malone’s Liberty Global. Read more >>


China’s Antitrust Regulator Fines Baby Formula Producers RMB 670 Million for Resale Price Maintenance
On Aug. 7, 2013, the National Development and Reform Commission issued fines totaling around $110 million to six producers of baby formula for price-fixing and anti-competitive behavior. Read more >>

South Korea Fair Trade Commission to Increase Penalties for Antitrust Violations
On Sept. 13, 2013, the head of the South Korean antitrust regulator (the Korea Fair Trade Commission) announced a strengthening of the penalties for unfair business activities. 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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