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Dylan Ballard

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There is a tension at the heart of modern U.S. cartel enforcement. On one hand is the engine that has been driving most criminal and civil cartel enforcement since the mid-1990s — the Department of Justice’s corporate leniency or “amnesty” program. The modern leniency program offers a relatively simple bargain to the first intrepid cartelist who walks through DOJ’s door: complete criminal amnesty in exchange for complete cooperation.  But, on the other hand, the simplicity of this bargain has historically been complicated by the significant countervailing likelihood of private “follow-on” lawsuits threatening some of the most severe penalties found anywhere in the U.S. legal system, including joint and several liability, treble damages, and the automatic recovery of attorneys’ fees and costs. By providing the government with the robust cooperation necessary to achieve criminal amnesty, a cartelist was also often ensuring private plaintiffs would have the evidence they needed to successfully obtain these civil penalties, which, at least for corporate defendants, can be more financially painful than anything the criminal process can provide. The result is that the cost-benefit analysis of invoking the DOJ’s amnesty program has not always been as straightforward as it appears or was likely intended.
Continue Reading Amnesty and Its Punishments: ACPERA and the Future of U.S. Antitrust Cartel Enforcement

California’s below-cost pricing statute, the Unfair Practices Act (the “UPA”), is perhaps the broadest such statute in the nation, and far broader than comparable federal laws, which have been narrowed in recent decades almost to the vanishing point.  Indeed, the statute—which dates back to the Great Depression and the era of New Deal economics—could be interpreted as a bright line prohibition against pricing just about anything below cost to take business from a competitor.  See Bus. & Prof. Code § 17043.  And yet, at least by the hyperactive standards of contemporary commercial litigation, the statute has not been heavily employed or even spoken about, mainly collecting cobwebs in the dim corners of law libraries.
Continue Reading Why Aren’t There More California Below-Cost Pricing Cases? *

Over the last three decades, government antitrust enforcers and private plaintiffs in the United States have increasingly sought to apply U.S. antitrust laws to conduct by foreign businesses that is deemed to have effects on the U.S. economy. Many of these foreign businesses have been located in Asia:  since the 1990s there have been waves of U.S. criminal prosecutions and civil cases alleging anticompetitive conspiracies between Japanese, Korean, and Taiwanese sellers and manufacturers.  For most of this time, however, companies in mainland China—despite being the largest exporters of goods to the United States, first in Asia and now in the entire world—have rarely been targeted for U.S. antitrust enforcement.
Continue Reading Between a Rock and a Hard Place: Vitamin C and the Future of U.S. Antitrust Enforcement Against Chinese Companies *

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 conduct such as price-fixing conspiracies. But to what extent do these innovations really alter traditional antitrust analysis under Section 1 of the Sherman Act? In a recent article published in Competition Policy International’s Antitrust Chronicle, we analyze existing legal doctrines and principles to see if they can offer antitrust and competition practitioners any guidance before we jump into this “brave new world.”…
Continue Reading Algorithms, Artificial Intelligence and Joint Conduct

On March 27, in the latest major development in Motorola Mobility’s lawsuit alleging price-fixing of liquid crystal display modules (LCDs), a three-judge panel of the Seventh Circuit, including renowned antitrust jurist Judge Richard Posner, simultaneously granted Motorola’s petition for interlocutory appeal and affirmed a ruling by U.S. District Judge Joan B. Gottschall that more than 99% of Motorola’s $5.4 billion in claimed damages are beyond U.S. antitrust jurisdiction under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a.  The Court decided the substantive issue on the basis of the district court record and the parties’ interlocutory appeal papers, dispensing with further appellate briefing and oral argument.  We previously reported on Judge Gottschall’s decision in the trial court here.
Continue Reading Seventh Circuit Affirms Dismissal of Motorola’s LCD Antitrust Claims Based on Foreign Purchases

On January 23, in a landmark decision that is one of the most important yet to be handed down in the sprawling LCD antitrust litigation pending in various federal courts since 2006, Judge Joan Gottschall of the Northern District of Illinois dismissed plaintiff Motorola Mobility’s price-fixing claims based on overseas purchases by its foreign affiliates, ruling that the claims were barred by the Foreign Trade Antitrust Improvements Act (“FTAIA”), which limits the application of American antitrust laws to foreign conduct.  The decision effectively eliminates from the case more than 99% of Motorola’s $5.4 billion in claimed damages.
Continue Reading LCD Court Dismisses Motorola’s Multi-Billion Dollar Antitrust Claims Based On Overseas Purchases

The Ninth Circuit unanimously affirmed a grant of summary judgment for defendants in an antitrust suit involving alleged price-fixing of ATM fees, holding that the plaintiffs were indirect purchasers within the meaning of Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) and could not satisfy an exception to the “Illinois Brick wall,” which deprives indirect purchasers of standing to bring federal antitrust claims. In re ATM Fee Antitrust Litigation, No. 10-17354 (9th Cir. July 12, 2012).
Continue Reading Brick By Illinois Brick: Ninth Circuit Builds High Wall For Indirect Purchaser Suits

The Ninth Circuit unanimously affirmed a grant of summary judgment for defendants in an antitrust suit involving alleged price-fixing of ATM fees, holding that the plaintiffs were indirect purchasers within the meaning of Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) and could not satisfy an exception to the “Illinois Brick wall,” which deprives indirect purchasers of standing to bring federal antitrust claims. In re ATM Fee Antitrust Litigation, No. 10-17354 (9th Cir. July 12, 2012).
Continue Reading Brick By Illinois Brick: Ninth Circuit Builds High Wall For Indirect Purchaser Suits