Antitrust Law

Supreme Court Denies Cert In Challenge To Tobacco Master Settlement Agreement

Posted on May 13, 2008
On May 12, 2008, the Supreme Court denied cert. in an antitrust case challenging the tobacco Master Settlement Agreement ("MSA") and its implementing statutes. See Sanders v. Brown, --- S.Ct. ---, No. 07-995 (May 12, 2008). The Ninth Circuit had held (1) that the MSA implementing statutes were not pre-empted by the Sherman Act, (2) that the Noer Pennington immunity doctrine protects a private party from liability for the act of negotiating a settlement with a state entity and any injuries that result directly from valid government action taken on the petitioner's behalf, and (3) that the Parker state-action immunity doctrine protects a state from liability for entering into the MSA and for enacting the implementing statutes...

FTC Announces Revised Proposal For Business Opportunities Rule

Posted on March 20, 2008
In April 2006, the FTC sought comment on a proposed trade regulation rule governing business opportunities that was separate from and more expansive than the FTC franchise disclosure rule. For example, the FTC's franchise disclosure rule applies to opportunities that require a buyer to make a payment of at least $500 within the first six months, but under the inventory exception, voluntary purchases of reasonable amounts of inventory at bona fide wholesale prices do not count toward the $500 threshold...

"Preemption, Preemption, Preemption" Says The Supreme Court

Posted on February 21, 2008
As previously mentioned in this blog, there are several high profile preemption cases pending before the Supreme Court this term. Yesterday, the Supreme Court decided three of them -- all in favor of federal preemption of state laws.In Rowe v. New Hampshire Motor Transport Association, the Court held that Maine's Tobacco Delivery Law (which required carriers to verify that the recipients of tobacco shipments were not minors) was preempted by the Federal Aviation Administration Authorization Act (which prohibits states from regulating prices, routes or services of shipping companies)...

Unintended Consequences Of Leegin: No Antitrust Exemption For Baseball?

Posted on February 12, 2008
FTC Commissioner Pamela Jones Harbour wrote an interesting article about the collateral fallout of the Supreme Court's decision in Leegin. As explained here and (in more depth) here, the Leegin Court held that minimum vertical price fixing is not per se illegal, thus reversing the long-standing decision in Dr...

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Regulatory Preemption And The Supreme Court

Posted on February 07, 2008
There was an interesting article (State, Federal Powers Collide) in the Wall Street Journal last week about federal agencies enacting new rules that preempt state law. The article explained: "These new initiatives, largely applauded by business interests, affect products including drugs, autos and passenger railcars...

Do Not Call Improvement Act

Posted on February 06, 2008
Identical versions of the Do Not Call Improvement Act have passed both the House (H.R. 3541) and Senate (S. 2096). The Act eliminates the need for consumers to re-register their numbers on the Do Not Call registry. When the Do Not Call program was first established in 2003, consumers could list their phone numbers for a five-year period after which they were required to re-register...

Antitrust Claim Against Wintergreen Allowed To Proceed

Posted on January 31, 2008
The Wintergreen Resort is a ski resort and conference center in Nelson County, Virginia (between Lynchburg and Charlottesville). According to the allegations in Plaintiff's complaint, Wintergreen entered into an agreement with Wintergreen Resort Premier Properties (WRPP), a local real estate company, which granted WRPP the exclusive right to operate a real estate office in Wintergreen's Mountain Inn...

Tricky Preemption Issue Re: Established Business Relationship Under TCPA and Do Not Call Registry

Posted on January 15, 2008
In 2003, the Federal Trade Commission and the Federal Communications Commission jointly established a national do-not-call registry pursuant to the Telephone Consumer Protection Act (TCPA). Even when a number is listed on the do-not-call registry, solicitation calls can be placed to persons with whom the caller has an "established business relationship...

Happy New Year: An Explanation For My Absence

Posted on January 01, 2008
As some readers may (or not) have noticed, I was not able to post as often in 2007 as I did in 2006. I have two excuses.First, I was working on a very complicated and interesting antitrust/IP case which went to trial in the Spring/Summer of 2007. Although the case is not over, you can read about it here...

In-Depth Analysis Of Leegin

Posted on August 01, 2007
This powerpoint presentation contains an in-depth analysis of the Supreme Court's decision in Leegin and what the new era of resale price maintenance under the rule of reason means for manufacturers, distributors and retailers.

Supreme Court Overrules Dr. Miles: Minimum Resale Price Fixing Subject To The Rule Of Reason

Posted on June 28, 2007
On the last day of the 2006-2007 term of court, the Supreme Court issued its long-awaited opinion in Leegin Creative Leather Products, Inc. v. PSKS, Inc. By a vote of 5-4, the Court held that minimum vertical price fixing is no longer per se unlawful under the Sherman Act, but rather should be analyzed under the rule of reason...

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