Antitrust Law Blog

On July 22, 2005, the Court of Appeals for the District of Columbia Circuit denied a petition for review filed by PolyGram Holding, Inc. In so doing, the DC Circuit, in an opinion by Chief Judge Ginsburg, endorsed the Commission's characterization of the restraint in issue as "inherently suspect". The court held that the Commission was correct in following the analytical path that it established in In Re Massachusetts Board of Optometry.¹ PolyGram Holding, Inc. v. Federal Trade Commission, No. 03-1293 (DC Cer. 2005).

Aloha Petroleum ("Aloha"), a Hawaiian corporation involved in both the bulk supply and retail sale of gasoline on the Hawaiian islands, is seeking to acquire eighteen retail gasoline stations on the island of Oahu currently owned by Trustreet Properties ("Trustreet") as well as Trustreet's fifty percent interest in a petroleum importing terminal on Oahu known as Barbers Point. Aloha presently owns its own retail gasoline stations on Oahu and the other fifty percent interest in the Barbers Point Terminal. The FTC has filed a complaint in the U.S. District Court for the District of Hawaii seeking a preliminary injunction against this acquisition (FTC v. Aloha Petroleum, Ltd.). The FTC contends that this transaction, which is not reportable under the Hart-Scott-Rodino premerger filing guidelines, would have anticompetitive effects in both the market for the bulk supply of gasoline and the market for the retail sale of gasoline.

On August 23, 2005, the UK's Department of Trade and Industry (DTI) published a consultation document on the possible reform of Part 9 of the UK's Enterprise Act 2002, which governs the release of consumer and competition information, and outlined options for disclosing currently confidential commercial information held by public authorities to consumers and businesses for pursuing their own private civil court proceedings.

On August 9, the Federal Trade Commission (the "FTC") approved by a 4-0 vote the publication of a Federal Register notice concerning proposed amendments to the HSR Rules, 16 C.F.R. Part 803. The proposed amendments would allow parties filing pre-merger documents under the HSR Act to provide Internet links to certain documents in lieu of paper copies for items 4(a) and 4(b) on the notification and report form. The proposed rulemaking also addresses "stale filing" situations, in which parties make premerger filings but then fail to comply with a Request for Additional Information and Documentary Material - commonly known as a second request. The proposed rule is that an acquired person's notification of the transaction shall expire after 18 months if a second request is still outstanding. The proposed rulemaking was drafted jointly by staff from the Department of Justice's Antitrust Division ("DOJ") and the FTC.