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Corporate & Securities Law

Antitrust Review

Antitrust law and economics

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Last Entry: April 02, 2010 at 12:07:35

Who Owns ideas? Excellent CBC Radio Feature

Posted on October 31, 2008
This great feature by the Canadian Broadcasting Corporation examines the (many) apparent and (few, but serious) real tensions between creating a commons of publicly available works and rewarding artists and how copyrights and patents have morphed from a necessary evil (circa 1787) to “tangible property plus...

Verizon Wireless-Alltel Deal Moves Forward After Divestitures

Posted on October 31, 2008
The Washington Post reports that: The proposed merger between Verizon Wireless and rural carrier Alltel to create the nation’s largest wireless company moved a step closer to reality yesterday after the Justice Department signed off on the deal...

Delta-Northwest Moves Forward

Posted on October 30, 2008
Yesterday, the U.S. Department of Justice released a statement to announce “the closing of its investigation of the proposed merger of Delta Air Lines Inc. and Northwest Airlines Corporation.” According to the statement: After a thorough, six-month investigation, during which the Division obtained extensive information from a wide range of market participants ? including the companies, [...

Act First, Reason Later

Posted on October 29, 2008
In today’s NYT, David Brooks writes:Roughly speaking, there are four steps to every decision. First, you perceive a situation. Then you think of possible courses of action. Then you calculate which course is in your best interest. Then you take the action...

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International Antitrust at U.C. Berkeley

Posted on October 27, 2008
I am very much looking forward to teaching International Antitrust Law at U.C. Berkeley in Spring 2009. Here is the course announcement.Modern antitrust law is global antitrust law. Driven by economic globalization and trade liberalization, antitrust laws have proliferated around the globe...

In re Cipro and the intersection of antitrust and IP

Posted on October 27, 2008
In its decision in In re Cipro, the Federal Circuit presents us with what John Ralston Saul calls the “hypnotic clarity of false choices.” Either any “analysis of patent validity is [in]appropriate in the absence of fraud or sham litigation...

UHF RFID Patent Consortium Licensing Approved

Posted on October 22, 2008
Too often we focus on noisy conflicts, but sometimes the dog that does not bark is just as important (especially for practicing attorneys). Yesterday, the U.S. Department of Justice announced that it would not challenge a “proposal by a consortium of companies to jointly license patents needed to comply with standards for ultra high frequency radio frequency [...

Cipro Decision Affirmed - Reverse Payment Case

Posted on October 15, 2008
Today, the Federal Circuit affirmed the district court’s decision to dismiss the plaintiffs’ claims. The opnion is available on the Court’s website (pdf). This is an interesting and important decision that is worth reading. A few excepts are below to give you a sense of the decision: We conclude that in cases such as this, wherein [...

Bank of America, Merrill Lynch get Early Termination

Posted on October 15, 2008
The FTC yesterday granted Early Termination (.pdf) for the $34.9 billion transaction in which Bank of America will buy Merrill Lynch, a deal that was announced just after Lehman Brothers folded.

Rangers v. NHL, And the Single Entity Defense

Posted on October 14, 2008
As previosuly noted, the New York Rangers (i.e., Madison Square Garens, the Rangers’ owner) sued the N.H.L. which was mostly related to control over the Ranger’s website. The ranger’s motion for a preliminary inunction was denied. On Friday, the district court - Judge Preska - granted the NHL’s motion to dismiss as to the parts [...

More Action in Whole Foods

Posted on October 10, 2008
As I posted earlier, Whole Foods filed a petition for a rehearing en banc after losing its appeal in the D.C. Circuit. Last month, the FTC responded by filing a brief in opposition (pdf), stating that the D.C. Circuit Court panel “applied established standards to the specific factual setting of this case, and rendered a [...

More About Atrivo

Posted on October 09, 2008
A couple of weeks ago, we passed along a report that several upstream internet service providers (ISPs) ”shunned” Atrivo, a downstream ISP. The Washington Post’s Security Fix blog reports today that there was a “short-lived but precipitous decline in the level of badness online after Atrivo was shut down …”

Do Not Pass Go ?

Posted on October 02, 2008
Yesterday, the U.S. Department of Justice announced that several shipping company executives had plead guilty and agreed to serve jail sentences “for their roles in a wide-ranging conspiracy to rig bids, fix prices and allocate market shares for customers transporting goods between the continental United States and Puerto Rico by ocean vessel …” The press [...

Blawg Review

Posted on September 25, 2008
I have not linked to Blawg Reviews recently because the quality has been, IMHO, poor. But the last two were well done. Check out Blawg Reviews #177 and #178.

DOJ Investigates Possible Food Price Collusion

Posted on September 23, 2008
Today’s Wall Street Journal (h/t Danny Sokol) reports that: Federal prosecutors have opened separate criminal probes into possible price-fixing by major egg producers and California tomato processors, the latest in a series of U.S. investigations of alleged collusion in food and agriculture...

Upstream Internet Service Providers ?Shun? a Downstream ISP

Posted on September 23, 2008
The Washington Post reports that “Atrivo, a.k.a ‘Intercage,’” an ISP “ceased to be reachable from any points on the Internet early Sunday morning when the ISP’s sole remaining provider - Pacific Internet Exchange (PIE) - stopped routing traffic for the troubled company...

Lessig on Faith Based Technology Policy, Net Neutrality

Posted on September 16, 2008
Here is Larry Lessig’s assessment of McCain’s technology policy, which, by the way, was written and titled before McCain’s VP pick. Lessig chronicles how the U.S. has lost ground in terms of broadband infrastructure in the past eight years...

Baker on the Inter-Agency Divide

Posted on September 15, 2008
Perhaps you need a little relief from watching the distressing news from Wall Street. Here is an article by Jonathan Baker in the New Republic: Turning on Itself: How Dueling Agencies in the Bush Administration Made Mincemeat of Antitrust Regulation Policy...

The Catfight Goes Mainstream: The MSM Picks Up on the DOJ-FTC Dispute over the Section 2 Report

Posted on September 09, 2008
Both the Washington Post and the New York Times have articles about the disagreements between DOJ and FTC over DOJ’s Section 2 report. The Washington Post reports: Sen. Herb Kohl (D-Wis.), chairman of the Senate Judiciary Committee’s antitrust subcommittee, called the report an assault on the Sherman Act, the basis for much U...

FTC Not Amused by DoJ Report

Posted on September 08, 2008
On the heels of the DoJ Report on Single Firm Conduct, the FTC Commissioners have issued two statements, one by Chairman Kovacic and another by the other three Commissioners. Here is what Commissioners Harbour, Rosch, and Leibowitz have to say: We have two overarching concerns with the Department?s Report...

DOJ and Single Firm Conduction

Posted on September 08, 2008
Earlier today, the Department of Justice (without the FTC) released a massive, 215 page, report that, in DOJ’s own words “examines whether and when specific types of single-firm conduct may or may not violate Section 2 of the Sherman Act by harming competition and consumer welfare...

More on Whole Foods

Posted on August 27, 2008
As we have reported here before, the D.C. Circuit recently overturned the district court’s ruling in FTC v. Whole Foods, holding that it was legal error to consider only marginal customers in assessing whether the FTC had met its burden for a preliminary injunction, since “core customers,” under the Brown Shoe practical indicia, could form [...

Antitrust, Single Entities, and the NFL

Posted on August 22, 2008
On Monday, the U.S. Court of Appeals for the Seventh Circuit released a very interesting opinion in American Needle v. National Football League. In short, the Court found that NFL teams constitute a single entity “when collectively licensing their intellectual property...

Obama & McCain to Debate Antitrust ? via surrogates

Posted on August 18, 2008
The Legal Times blog reports about the debate on September 24 at GW law school in DC: Two local antitrust lawyers on different sides of the presidential election are getting ready to square off in a D.C. Bar debate. James Rill, a partner at Howrey, will address Sen...

Antitrust, Deceptive Conduct Under Consumer Protection Statutes and Indirect Purchasers

Posted on August 07, 2008
In states where the antitrust laws do not permit indirect purchaser suits (i.e., non Illinois Brick repealer states), plaintiffs often allege that, by not revealing their price-fixing, the defendants engaged in deceptive conduct that violates the state consumer protection laws...

Jeff Schmidt to Leave FTC

Posted on August 07, 2008
Jeff Schmidt, the current Director of the Bureau of Competition, will leave the FTC. He will be replaced by David P. Wales as Acting Director. The FTC’s press release states: Schmidt joined the Commission in February 2005 as Deputy Director of the Bureau of Competition...

Antitrust Practitioner Survey

Posted on August 04, 2008
Dan Sokol is conducting a “survey of non-government antitrust practitioners (including practitioners with law firms and in-house) who undertake antitrust work in the United States to better understand how antitrust law shapes compliance.” You can take 8-12 minutes to fill it out here.

PA Health Insurance Company Merger Before the US Senate

Posted on August 04, 2008
Last week, the Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights held a hearing titled “Consolidation in The Pennsylvania Health Insurance Industry: The Right Prescription?” regarding the merger between Independence Blue Cross and Highmark...

First Thoughts on Whole Foods

Posted on July 31, 2008
After mulling it over for a couple of days, here are some first thoughts on FTC vs. Whole Foods. Litigated cases, and especially appellate court decisions, are so rare in Section 7 matters that each decision carries enormous weight in shaping the advice counsel will give their M&A clients and the agencies’ attitude when deciding [...

Whole Foods-Wild Oats Merger Decision Reversed

Posted on July 29, 2008
Today, the United States Court of Appeals for the District of Columbia reversed District Court’s denial of an injunction. The Court stated: The FTC sought a preliminary injunction, under 15 U.S.C. § 53(b), to block the merger of Whole Foods and Wild Oats...

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