In Oneok, Inc. v. Learjet, Inc., No. 13-271 (April 21, 2015), the U.S. Supreme Court held in a 7-2 opinion that state law antitrust claims against defendant natural gas pipeline companies did not fall within the field of matters preempted by the Natural Gas Act (the “NGA”), 15 U.S.C. § 717 et seq., even though the claims challenged industry practices bearing on the setting of wholesale natural gas rates—an area traditionally recognized as squarely within the NGA’s exclusive jurisdictional scope.  This decision has implications reaching far beyond the litigation itself.  Oneok opens the door to new, but yet unknown, state-level antitrust regulation of the wholesale natural gas market, and the uncertainty that will follow.  As antitrust enforcement can vary by state, Oneok also subjects natural gas pipeline companies to potentially conflicting regulations and increased compliance costs.
Continue Reading U.S. Supreme Court Lets Natural Gas Act Preemption Seep Away

The Eleventh Circuit recently affirmed a Federal Trade Commission finding that a manufacturer’s rebate program requiring exclusivity from its distributors was an unlawful maintenance of monopoly power under Section 5 of the FTC Act.  McWane, Inc. v. Fed. Trade Comm., No. 14-11363 (11th Cir. April 15, 2015).  The Court found that the rebate program’s practical effect was to make it economically infeasible for distributors to switch from defendant McWane to its only competitor, Star Pipe Products (“Star”).  Unable to attract sales, Star was therefore incapable of generating enough revenue to become an efficient and effective competitor to challenge McWane’s near 100% monopoly over domestic water-pipe fittings.
Continue Reading Eleventh Circuit Affirms FTC Finding that Rebate Program Served to Unlawfully Maintain Monopoly Power

So far in China there have not been any published decisions regarding price-fixing or other anti-competitive agreements based on concerted action by competitors.  There is also no Chinese legal precedent for including potential competitors in the analysis of antitrust law compliance.  But China’s antitrust enforcers are very much aware of how the U.S. and EC enforce antitrust laws.  We may thus begin to see more cases where the Chinese enforcers enforce the Anti-Monopoly Law’s (“AML”) prohibition of anti-competitive agreements among competitors based on concerted action using the same approach as the EC, whose decision to fine banana suppliers for fixing the price of green and ripe bananas was recently upheld by the European Court of Justice (“Court”) in Dole Food and Dole Germany v. Commission, case number C‑286/13 P.  While this is not the first time the EC has fined companies based on concerted action, it reinforces some of the broad sweeping concepts that make it easy to punish a company in an administrative process, such as in China, where the enforcer, investigator and judge are essentially the same body. This is particularly of concern in China given the discretionary power of the Chinese enforcement authorities.
Continue Reading China Ripe For Enforcing AML Based On Concerted Action

A Matsushita “Quick Look” Analysis Demonstrates that While Plausible, No Evidence Supports An Actionable Conspiracy or Monopoly.  Abraham & Veneklasen Joint Venture et al. v. Am. Quarter Horse Ass’n, 776 F.3d 321 (5th Cir. Jan. 14, 2015).
Continue Reading American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act

There are few aspects of U.S. antitrust law as seemingly well settled as Illinois Brick’s “indirect purchaser rule.” The rule itself — indirect purchasers may not recover damages under federal…
Continue Reading When Illinois Brick Goes Abroad

While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage.  In response to the Supreme Court’s decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968), the Federal Trade Commission issued its Guides for Advertising Allowances and Other Merchandising Payments and Services, codified at 16 CFR, Part 240 (1969).  The “Fred Meyer Guides”, as they are generally referred to, were revised in 1990, and most recently in November 2014.  In the wake of efforts through the years to better equate the aims and goals of Robinson-Patman enforcement with those of the other antitrust laws, there has been a vigorous debate over modifications.  These included proffered amendments suggested by the American Bar Association Section of Antitrust Law, the Antitrust Law Institute, and others.
Continue Reading Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged

While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage.  In response to the Supreme Court’s decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968), the Federal Trade Commission issued its Guides for Advertising Allowances and Other Merchandising Payments and Services, codified at 16 CFR, Part 240 (1969).  The “Fred Meyer Guides”, as they are generally referred to, were revised in 1990, and most recently in November 2014.  In the wake of efforts through the years to better equate the aims and goals of Robinson-Patman enforcement with those of the other antitrust laws, there has been a vigorous debate over modifications.  These included proffered amendments suggested by the American Bar Association Section of Antitrust Law, the Antitrust Law Institute, and others.
Continue Reading Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged