By Mona Solouki

On January 8, 2013 – less than a week after the Federal Trade Commission ("FTC") entered into a consent order with Google,[1] under which Google is generally banned from seeking injunctions on its F/RAND[2] -encumbered standard essential patents ("SEPs")[3] – the United States Department of Justice ("DOJ") banded together with the United States Patent and Trademark Office ("USPTO") (jointly referred here as "the Agencies") in issuing the Policy Statement on Remedies for Standard Essential Patents Subject to F/RAND Commitment ("Policy Statement on Remedies for SEPs").Continue Reading In a Rarely-Seen Joint-Effort in the Competition Arena, the DOJ and the USPTO Unite in Issuing a Policy Statement on Remedies Involving Standard Essential Patents

By James L. McGinnis

After a 3-week trial and less than 24 hours of deliberation, a federal jury in San Francisco convicted Mr. Stephen Leung of AUO of one felony count of price-fixing in violation of Section 1 of the Sherman Act. He was charged with participating in a worldwide conspiracy to fix LCD panel prices. This was a retrial following a seven-defendant trial that concluded on March 13, 2012. In that first trial, AUO, AUO America, and two individuals were convicted of conspiring to fix LCD panel prices, but the jury hung with respect to Mr. Leung 8-4 in favor of conviction. Two other individuals were acquitted.Continue Reading Latest LCD Criminal Conviction – Stephen Leung Of AUO Convicted On Retrial

By David Garcia and Leo Caseria

Have you ever been away from home when your favorite baseball or hockey team is playing an important game? Ever wished you could watch that game, and just that game, live while you are on the road? If plaintiffs in Laumann v. Nat’l Hockey League, Case No. 1:12-cv-01817 (S.D.N.Y.) have their way, you might get your wish. On December 5, 2012, District Judge Shira A. Scheindlin largely denied a motion to dismiss plaintiffs’ Sherman Act Section 1 and 2 claims challenging agreements that allegedly restrain the markets for baseball and hockey programming. Plaintiffs, consumers of television and internet packages that include baseball and hockey programming, allege that competition has been eliminated in the distribution of baseball and hockey games through a web of collusive agreements between and among numerous defendants, including the National Hockey League (“NHL”), Major League Baseball (“MLB”) (collectively, the “Leagues”), the teams within those leagues, regional sports networks that televise the games (“RSNs”) and multichannel video programing distributors (“MVPDs”) Comcast and DirecTV, which sell cable programming packages. Defendants’ agreements purportedly divide the market into exclusive “in-market” territories protected by blackouts, prohibit any option for viewing in-market games on the internet, and provide consumers with only one option for viewing “out-of-market” games, an all-or-nothing package containing all out-of-market games. The result, according to plaintiffs, is a double play—higher prices and reduced output of sports programming.Continue Reading Challenge To Alleged Restraints On Baseball And Hockey Programming Survive Motion To Dismiss And Advance To The Next Round Of Litigation

By David Garcia and Leo Caseria

On Friday, December 7, 2012, the Supreme Court granted certiorari in Oxford Health Plans LLC v. John Ivan Sutter MD, No. 12-135 to address whether the parties to an arbitration agreement authorize class arbitration when the agreement provides that “any dispute” will be submitted to arbitration. The Third Circuit’s decision in Oxford, which upheld an arbitrator’s decision to proceed with class arbitration based on such an agreement, presents a potential conflict with the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), which held that class arbitration cannot be imposed on parties that have not agreed to it. The Supreme Court has been extremely interested in the topic of class action waivers and arbitration agreements recently. The Court’s decision to hear Oxford comes less than a month after it also granted certiorari in American Express Company vs. Italian Colors Restaurant, No. 12-133 (“AMEX”) to address the following question: “Whether the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim.” (Previously blogged at Supreme Court to Address Enforceability of Arbitration Agreements and Class Action Waivers Yet Again).Continue Reading Supreme Court Will Now Hear Two Appeals Concerning Class Arbitration

On November 28, 2012, the Japan Fair Trade Commission (“JFTC”) published the findings of its 2012 survey of corporate compliance practices based on (i) responses from approximately 879 companies listed on the Tokyo Stock Exchange; (ii) interviews of six attorneys specializing in corporate or antitrust law; and (iii) interviews of 82 companies with informative examples of success or failure. The JFTC’s report, titled “Survey on Corporate Compliance Efforts with the Antimonopoly Act (Summary),” coincides with an unprecedented era of administrative and criminal enforcement against Japanese companies and executives by the JFTC and U.S. Department of Justice, Antitrust Division. Although the results pertained to compliance with Japan’s Antimonopoly Act (“AMA”), the principles can be applied to ensure compliance with virtually any competition law regime.
Continue Reading JFTC Releases Survey on Corporate Compliance Efforts and Recommends Best Practices

By David R. Garcia

Just three days after the Federal Trade Commission, jointly with the Pennsylvania Attorney General, issued an administrative complaint challenging Reading Health System’s (RHS) proposed acquisition of Surgical Institute of Reading L.P. (SIR), a 15-bed surgical specialty center, both entities abandoned the proposed acquisition, citing the high costs associated with a protracted court battle with the government. This FTC victory provides more valuable insight into how antitrust enforcement agencies are evaluating the increasing number of consolidations within the healthcare industry, particularly after passage of the Affordable Care Act. Specifically, this case highlights the government’s very granular analysis of effects on competition through highly specialized “service markets,” as well as the risk for entities that ordinary-course-of-business documents surrounding the proposed consolidation can play a significant role in the government’s challenge. It also appears to be another example of an FTC challenge to a transaction below the Hart-Scott-Rodino reporting threshold.Continue Reading Large General Acute-Care Hospital Abandons Acquisition Of 15-Bed Surgical Specialty Center As A Result Of FTC Challenge

By David Garcia and Leo Caseria

On Friday, November 9, 2012, the Supreme Court granted certiorari in American Express Company vs. Italian Colors Restaurant, No. 12-133 to address the following question: “Whether the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim.” As we predicted in February, the Supreme Court was likely to grant certiorari in American Express after the Second Circuit held, for the third time in the same case, that a class action waiver in an arbitration agreement between American Express and plaintiff merchants was unenforceable because it would effectively preclude plaintiffs from vindicating their federal statutory rights under the Sherman and Clayton Acts (plaintiffs are merchants alleging a Sherman Act tying claim against American Express for allegedly forcing merchants to accept American Express credit cards and debit cards as a condition of accepting American Express charge cards, at higher rates than competing credit cards and debit cards). See In re American Express Merchants’ Litigation, 667 F.3d 204 (2d Cir. 2012) ("AMEX III") (previously blogged at In re American Express Merchants’ Litigation – Plaintiffs Survive Three Rounds In The Second Circuit, But Can They Survive The Supreme Court?). To reach its decision, the Second Circuit had to bob and weave its way around three recent Supreme Court decisions all upholding the express terms of arbitration agreements under the Federal Arbitration Act (“FAA”): CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) (holding that an arbitration agreement could be enforced in a case involving claims under the federal Credit Repair Organizations Act (CROA), because the CROA is silent on whether arbitration is permissible); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (holding that a class action waiver in an arbitration agreement was enforceable because the FAA preempts state law); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010) (holding that class arbitration cannot be imposed on parties that have not agreed to it). American Express will now become part of this line of cases.

Continue Reading Supreme Court to Address Enforceability of Arbitration Agreements and Class Action Waivers Yet Again