Competition Agencies Urge Virginia to Reconsider Certificate of Need Requirements

In a joint statement issued by the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (collectively, the “Agencies”) late last month, the Agencies suggested Virginia’s Certificate of Public Need Work Group (“Work Group”), currently convened, consider repealing or retrenching Virginia’s Certificate of Public Need (“COPN”) law.[1] Continue Reading

Ninth Circuit Holds That NCAA’s Amateurism Rules Violate Section 1 of the Sherman Act

In a decision handed down on September 30th, the Ninth Circuit affirmed in part and reversed in part the District Court’s ruling that the NCAA’s “amateurism” rules unlawfully restrained trade in the market for certain educational and athletic opportunities offered by the NCAA member schools in violation of Section 1 of the Sherman Act. O’Bannon v. NCAA, Case No. 14-16601, 2015 WL 5712106 (9th Cir. Sep. 30 2015).  While affirming most of the District Court’s rulings, the Appeals Court reversed the portion of the District Court’s ruling that enjoined the NCAA from prohibiting its member schools from offering deferred cash payments to student-athletes. Continue Reading

The European Commission’s New Pandora’s Box – Reopening Final Tax Rulings as a Form of “State Aid”

In Short

The European Commission (Commission) has adopted a decision on 21 October 2015 on the tax rulings – also referred to as “comfort letters” – granted by Luxembourg to Fiat Finance and Trade (FFT) and by The Netherlands to Starbucks. Rejecting the decisions of domestic authorities in Luxembourg and The Netherlands, the Commission concluded that these rulings artificially reduced the tax burdens for the two companies awarding them selective advantages, which constitute State aid. Continue Reading

Evolving Private Remedies for Competition Infringements in Europe: Class Actions in the U.K.

Winds of change are blowing through Europe’s national courts, beginning with a new antitrust damages Directive requiring changes in national laws to facilitate private enforcement of competition law. This step was a major change, and an equally significant development has taken place in the U.K., which will make it even more attractive to private enforcement.  As of 1 October, 2015, the U.K.’s long-anticipated opt-out class action procedure will be available. Continue Reading

Ninth Circuit Affirms Dismissal of Challenge to Alleged Horizontal Adoption of Minimum Advertised Prices

In what has been described as the latest opinion on the use of hub and spoke theories to allege conspiracies in violation of Section 1 of the Sherman Act, the plaintiffs took the position that the viability of their claims depended exclusively on whether they had adequately alleged a horizontal conspiracy. In re: Musical Instruments and Equipment Antitrust Litigation, No. 12-56674, 2015 U.S. App. Lexis 14960, slip op. at 13-14 (9th Cir. August 25, 2015) (“Plaintiffs made it clear both before the district court and on appeal that their theory of the case depends on establishing . . . horizontal agreements”). Plaintiffs did not claim that the “hub’s” conduct constituted part of the alleged antitrust violations. Id. at 22 n.9 (“nor do plaintiffs allege that the MAP policies themselves are illegal vertical agreements”); id. at 14 n.4. Plaintiffs pleaded a number of asserted “plus factors” to support their horizontal theories, all of which were rejected by the district court and the Ninth Circuit majority, which relied extensively on Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Continue Reading

“Individual Accountability for Corporate Wrongdoing”: A Sea Change Or Not?

On Thursday, September 10, 2015, Deputy Attorney General Sally Quillian Yates delivered remarks announcing a memorandum delivered to all federal prosecutors, including the Antitrust Division: “Individual Accountability for Corporate Wrongdoing”. She said the purpose of this memorandum was “to ensure that individual accountability lies at the heart of corporate enforcement strategy.” She outlined “six specific steps” to accomplish that goal. She emphasized the first step: Continue Reading

The Second Circuit’s Apple Ebooks Opinion

The Second Circuit affirmed the district court and held, 2 to 1, that defendant Apple Inc. had violated Section 1 by masterminding the creation, organization and implementation of a conspiracy by five publishers of ebooks that benefited Apple, as Apple intended, by eliminating retail price competition from Apple’s rival, Amazon, in the sale of ebooks.  United States v. Apple Inc., No.13-3741 (2d Cir. June 30, 2015).[1] Continue Reading

Cross Subsidization For Purpose Of Enhanced Grocery Sales Through Alleged Below Cost Gasoline Discounts Found Not To Violate California Unfair Practices Act

Injury to competing retail fuel stations is non-actionable where market conditions demonstrate that an “incipient antitrust violation” is not imminent. Dixon Gas Club LLC v. Safeway Inc., Case No. A139283 (Court of Appeal 1st Dist. July 20, 2015) (not for publication). Continue Reading

FTC “Enforcement Principles” for Section 5 of the FTC Act: Is Something Better than Nothing?

For many years, antitrust practitioners have struggled to understand exactly how the FTC will analyze and enforce Section 5’s prohibition of “unfair methods of competition.”  Counseling clients has been challenging.  In a short one-page release on August 13, 2015, the FTC published its first ever policy statement in an apparent effort to address those uncertainties.  Continue Reading

Regulatory Capture Vitiates State Action Immunity

The Supreme Court has ruled that when an oversight mechanism created by a State—here a State Board—is under the control of those it was supposed to be regulating (sometimes referred to by economists as “regulatory capture”)[1], anticompetitive actions taken by the State Board on its own without further official government review or approval enjoy no immunity under the state action doctrine.  North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S.___, 135 S.Ct. 1101 (Feb. 25, 2015) (“N.C. State Board“). Continue Reading