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The Roberts Supreme Court appears to be well on its way to reining in the outer reaches of private antitrust enforcement. In the term just concluded, all three antitrust cases heard by the Court resulted in reversals or vacating of judgments in favor of private plaintiffs in actions involving the Robinson Patman Act, joint ventures, and tying.¹ Two of these decisions – the Dagher joint venture case and the Independent Ink tying case – were 8-0 (Alito did not participate) decisions, while the Volvo price discrimination opinion commanded the votes of seven justices. Near the end of its term, the Court also granted certorari on two decisions – one by the Ninth Circuit and the other by the Second Circuit – which likewise stretched private enforcement beyond its usual boundaries.

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United States District Judge Emmett Sullivan, sitting in Washington, D.C., has thrown the already-consummated of AT&T/SBC and Verizon/MCI mergers into a state of confusion. Judge Sullivan is requiring the parties and the Antitrust Division of the Department of Justice ("DOJ") to produce evidence to support the alleged public interest purposes served by the consent decrees filed by the DOJ in 2005, to settle its allegations that the acquisitions were anti-competitive and violated Section 7 of the Clayton Act. In the past, federal courts have approved such negotiated consent decrees with little or no comment, attaching extreme deference to the consent decrees and signing them as a matter of course. Judge Sullivan has now stated, however, that the 2004 amendments to the Tunney Act (15 U.S.C.A. § 16 (2006)), passed in response to District of Columbia Circuit's highly deferential review and approval of the consent decree in United States v. Microsoft, require that he give both mergers -- which have already closed -- a more in-depth review. The 2004 Amendments to the Tunney Act directed that "before entering any consent judgment proposed by the United States under this section, the court shall determine that the entry of such judgment is in the public interest," and then instructed the court to consider the impact of the entry of judgment "upon competition and upon the public generally." 15 U.S.C.A. 16(e). Judge Sullivan apparently has interpreted this provision as requiring him to review evidence himself, rather than relying upon the administrative agencies' review of the evidence.

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Plaintiff, a real estate agent representing buyers, brought an action under Section 1 of the Sherman Act for illegal tying, Reifert v. South Central Wisconsin MLS Corp., 7^th cir., No. 05-3601, 6/12/06. Plaintiff claimed that defendant Realtors' Association violated Section 1 by requiring an agent subscribing to a multiple listing service ("MLS") to also pay dues to an affiliated national association, the National Association of Realtors ("NAR").

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The California Supreme Court finally decided whether Proposition 64 ("Prop. 64") applies to actions pending at the time it was passed in November, 2004. Prop. 64 limited private actions under the Unfair Competition Law ("UCL"), Bus. & Prof. Code § 17200, et seq. to those who have "suffered injury in fact and lost money or property as a result of" unfair competition or false advertising. Since the plaintiffs in many UCL actions pending at the time of its passage did not meet this requirement, this raised the issue of whether Prop. 64 applies to such pending actions. The California lower courts had split on the issue, although a majority had concluded that Prop. 64 did apply to pending actions.

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