Category Archives: Antitrust

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Antitrust Claims Against Telescope Manufacturer Ningbo Sunny Dismissed and Shot into Space

On September 28, 2017, Judge Edward Davila dismissed an antitrust complaint filed by Optronic Technologies, Inc. (dba Orion) against Ningbo Sunny Electronic Co., Ltd., Sunny Optics, Inc. and Meade Instruments Corp.  The case is Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co., Ltd., Case No. 5:16-cv-06370-EJD (N.D. Cal.).  Defendants are represented by Leo Caseria and … Continue Reading

Takeaways from the Intel Judgment on the Legality of Exclusivity Rebates in the EU

According to the longstanding case law of the Court of Justice of the European Union (the “Court”), rebates which are conditional upon a purchaser buying all or most of its requirements from a dominant supplier (so called “exclusivity” or “loyalty” rebates) have been presumed to be abusive on the basis that they are by their … Continue Reading

Is Antitrust Law a Viable Substitute for Net Neutrality?

In April 2017, FCC Chairman Ajit Pai issued a Notice of Proposed Order, Restoring Internet Freedom, seeking to reverse the FCC’s previous adoption of “net neutrality” principles in its March 2015 Open Internet Order. Net neutrality is the principle that internet service providers (“ISPs”) should treat all data equally, regardless of source.… Continue Reading

Algorithms, Artificial Intelligence and Joint Conduct

Over the past few years, sophisticated pricing algorithms and artificial intelligence have attracted the attention of antitrust and competition enforcers. These new technologies interpret and respond to market conditions with far more precision, agility, and consistency than their human counterparts. As a result, they may require practitioners to develop new ways of thinking about joint … Continue Reading

Eyes Across the Atlantic: Coordination and Management of Global Private Antitrust Litigation*

In years past, the focus of private international antitrust disputes was the United States. Over a century of experience, treble damages, class actions and the American rule for attorneys’ fees – plus robust enforcement by the Antitrust Division – have combined to make the United States the natural hub for private cases. That is still … Continue Reading

Antitrust Not Always Available in Competitor Disputes in the Healthcare Sector

The antitrust injury and antitrust standing defenses/doctrines are alive and well in healthcare.  A recent case, SCPH Legacy Corp. et al. v. Palmetto Health et al., shows that a competitor is not always the most legally appropriate plaintiff to bring an antitrust case, especially when the competitor’s alleged harm stems from increased competition.  This article … Continue Reading

EC Launches Targeted Competition Enforcement in E-Commerce Sector

If we needed any reminder that the competitiveness of e-commerce was high on the European Commission’s enforcement agenda, we now have unequivocal proof of this. The Commission today launched three separate investigations under the competition rules against companies operating in the (i) consumer electronics, (ii) video games and (iii) hotel sectors. It is looking into … Continue Reading

Frequently Asked Questions About the Amnesty Program—Major Changes in the Antitrust Division’s January 2017 Update

In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In  November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7 The Division’s January 17, 2017, … Continue Reading

Attempt to Monopolize Claim Fails Where Plaintiff Cannot Establish Approach to Monopoly Power in Properly Defined Relevant Market

Practitioners interested in the real world application of an attempt to monopolize claim under Section 2 of the Sherman Act, will find Savory Pie Guy a “good read” for the New Year.  Savory Pie Guy, LLC v. Comtec Industries, Ltd., No. 14-CV-7527, 2016 U.S. Dist. LEXIS 179317 (S.D.N.Y. December 28, 2016).  Since the passage of the … Continue Reading

Top 12 EU Legal Developments to Watch in 2017

Sheppard Mullin’s EU team has created a list of major legal shifts that await General Counsel and Compliance Officers in the areas of competition, EU regulatory and trade in 2017. These challenges may have an impact on your corporate and commercial strategies. Our predictions include:… Continue Reading

Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

1. Higher Thresholds For HSR Filings On January 19, 2017, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product and will be effective thirty days after publication in the Federal Register. … Continue Reading

The Rapidly Changing Landscape of Private Global Antitrust Litigation: Increasingly Serious Implications for U.S. Practitioners

The center of gravity when it comes to private litigation of international antitrust disputes is still in the United States, but two trends affecting the legal landscape in the U.S., U.K., and EU are shifting it across the Atlantic. In this article originally published in Competition – The Journal of the Antitrust and Unfair Competition … Continue Reading

Reflections on the Next Four Years of Antitrust Enforcement

By the votes of a nation’s electors, the future of U.S. antitrust enforcement moved from “pragmatic aggressive enforcement as usual” to “too early to call.” The unexpected election of President-elect Donald J. Trump opened wide the speculation or mystery of what he and his advisors are planning as his administration’s antitrust policy. Given the paucity … Continue Reading

Antitrust Agencies Issue Guidance To HR Professionals Regarding Hiring and Compensation Decisions

The U.S. Antitrust Agencies (the Antitrust Division of the Department of Justice and the Federal Trade Commission) recently issued a document entitled “Antitrust Guidance For Human Resource Professionals” intended to alert HR professionals to potential antitrust violations involving hiring and compensation decisions. The Guidance states that firms that compete to hire or retain employees are … Continue Reading

Inside The EU’s Overcharge Pass-On Study

On Oct. 25, 2016, the European Commission released a “Study on the Passing-on of Overcharges” after a year-long evaluation and input process. The study will help judges, regulators and practitioners critically evaluate pass-on claims in European competition cases through both legal and economic lenses. The detailed 315-page report highlights the increasingly important role of pass-on … Continue Reading

“E-Commerce must live up to its promise…”

These are the words of Europe’s chief antitrust enforcer, Margrethe Vestager, introducing the Commission’s public hearing on October 6, 2016, on its preliminary findings of the e-commerce sector inquiry. The promise of e-commerce alluded to by the Commissioner for Competition means quite simply a wider choice of goods available for purchase online, at lower prices … Continue Reading

On the Way to a European Digital Single Market: Whether You Sell Online or Offline – Listen Up!

The European Commission’s Directorate-General for Competition has issued a lengthy preliminary report of its ongoing sector inquiry into the e-commerce of goods and digital content. The sector-wide inquiry was launched on May 6, 2015, in the context of a wider legislative initiative by the Commission implementing its Digital Single Market strategy. The ongoing inquiry and … Continue Reading

Refusal to Sell Bulk-Size Packs, Without More, Is Not Price Discrimination – “Size is Not a Service”

Woodman’s Food Market, Inc. v. Clorox Co., No. 15-3001 (7th Cir.  August 12, 2016). Clorox Sales Company and Clorox Company produce a range of consumer goods.  Clorox sold goods to Plaintiff Woodman’s Food Market, a local grocery store with locations in Wisconsin and Illinois.  Clorox also sold to discount warehouses such as Costco and Sam’s … Continue Reading

FTC Stands Down in Latest Head-to-Head Battle Between Federal and State Oversight of Healthcare Collaborations

In what will undoubtedly be seen by all interested parties as a significant setback in the Federal Trade Commission’s active opposition to potentially anticompetitive healthcare collaborations, the FTC voted unanimously on Wednesday to dismiss its challenge to Cabell Huntington Hospital’s acquisition of St. Mary’s Medical Center – two hospitals serving patients in the Huntington area … Continue Reading

Maximum Civil Penalties for HSR Violations to Increase to $40,000 per Day

For parties considering a merger or other transaction, the civil penalties for failing to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) are about to increase significantly. On June 29, 2016, the Federal Trade Commission announced that the maximum civil penalty for noncompliance with the premerger filing requirements of the HSR Act … Continue Reading
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