Antitrust Law: 2012 Highlights

by Morgan Lewis

In 2012, the Antitrust Division (Division) of the U.S. Department of Justice won several significant convictions, both at trial and through guilty pleas, while the merger enforcement efforts of the Division and the Federal Trade Commission (FTC) blocked or modified a handful of transactions. Elsewhere, the European Commission's (EC's) cartel program continued unabated, while the EC blocked one of the most closely watched mergers of the year.

Criminal Cases and Investigations

  • TFT-LCD Price-Fixing Trial: After an eight-week jury trial, the Division obtained price-fixing convictions against AU Optronics, a Taiwanese LCD manufacturer; its U.S. subsidiary; and two of its senior executives. Judge Susan Illston of the U.S. District Court for the Northern District of California subsequently levied a $500 million fine against the company, the largest antitrust fine imposed since Hoffmann La Roche pleaded guilty to fixing the price of numerous vitamins in 1999.
  • Automobile Parts Investigation: The Division continues to investigate and prosecute corporate and individual defendants as part of its ongoing investigation into alleged bid rigging and price fixing in the automobile parts industry. Eight corporate defendants and 12 executives agreed to plead guilty to criminal antitrust charges in 2012. A ninth corporate defendant had previously pled guilty in 2011.
  • Municipal Bond Investigation: In 2012, the Division's multiyear investigation into alleged bid rigging in the municipal bonds derivatives market resulted in three individuals pleading guilty to Sherman Act violations and six more being convicted at trial for wire fraud and conspiracy charges related to alleged bid rigging in the market for municipal bond contracts and derivatives. A total of 19 current and former executives and one corporate defendant have pleaded guilty or been convicted of charges related to the investigation.

Civil Cases

  • Apple/E-Book Publisher Litigation: The Division filed suit against five of the largest book publishers for allegedly conspiring to reduce competition in the market for e-books. The allegations arose out of bilateral agreements between Apple and the publishers that adopted an agency pricing model, under which Apple received "most-favored nation" status for e-book prices. Four of the publishers subsequently reached settlements with the DOJ in which they agreed to (1) terminate their agreements with Apple and (2) not enter into any agreements constraining retailers' pricing discretion for at least two years. The DOJ is still litigating the case against the other publisher.
  • FTC v. Watson Pharmaceuticals, Inc.: The U.S. Court of Appeals for the Eleventh Circuit ruled against the FTC in its latest challenge to so-called "reverse payment" or "pay for delay" settlements in the pharmaceutical industry. Under the standard adopted by the Eleventh Circuit, reverse payment settlements are presumptively legal under the antitrust laws as long as the resulting period of exclusion is narrower in breadth and/or shorter in duration than that granted by the presumptively legitimate patents. The Eleventh Circuit's decision is unlikely to be the last word on this matter because the U.S. Supreme Court has granted certiorari in the case.[1]
  • Credit Card Interchange Fee Settlement: Visa Inc., MasterCard Inc., and several large banks reached a tentative $7.2 billion settlement with retailers to settle a long-running antitrust case alleging that the credit card companies and banks conspired to fix the price of "swipe fees" that retailers paid for each transaction. If the settlement receives final approval from the U.S. District Court for the Eastern District of New York, it will be the largest antitrust settlement in history.

Mergers and Acquisitions

  • 3M and Avery Dennison: 3M Company, maker of the ubiquitous Post-it® Note, shelved its plan to acquire label maker Avery Dennison's office and consumer products division in light of threatened litigation by the Antitrust Division. 3M had offered $550 million for the division. According to the Division, the two companies directly compete in the market for consumer and business labels, and the proposed merger would have resulted in 3M's controlling 80% of the market for labels and sticky notes.
  • Integrated Device Technology and PLX Technology: The FTC filed an administrative complaint seeking to enjoin the merger of two electronic component manufacturers. According to the FTC, the $330 million merger would have limited competition in the market for PCIe switches, which are used in a variety of consumer electronics and computers. The two companies subsequently abandoned the transaction.
  • Deutsche Boerse and NYSE Euronext: The EC blocked Deutsche Boerse's $9.5 billion acquisition of NYSE Euronext. According to the EC, the merged company would have a near monopoly in European derivatives traded on financial exchanges. The parties claimed that the EC relied upon an unrealistic and narrow definition of the market for derivatives. Although the parties abandoned the transaction, Deutsche Boerse has appealed to the European Court of Justice.

[1]. For more information about the Watson decision, see our May 9, 2012, LawFlash, "Eleventh Circuit Rejects FTC Challenge to Reverse Payment Settlement," available here.


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.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

Morgan Lewis 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.