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Is it time to change the focus of the antitrust laws? The debate is heating up

There is currently a tug-of-war going on over the heart and soul of the antitrust laws. Well, perhaps that is a bit dramatic. But it is certainly fair to say that there is surging sentiment that the antitrust laws, and specifically antitrust enforcement, should be recalibrated to address concerns that are “populist” in nature. This was particularly evident last week by the introduction of two bills by Sen. Amy Klobuchar (D-Minn.) that seek to make it easier for the antitrust agencies to challenge “undue market concentration.”

The first bill would amend Section 7 of the Clayton Act, the law that …

Access to “data” – the new competitive battlefield

Data is a buzzword popular in the media today. Most often we hear or read the word in conjunction with a breach of a major retailer or healthcare company. It is also used by companies to target us with behavioral advertising. But it also has become the new coin of the realm. Being neither a physical asset nor intellectual property, data has become the engine that powers much of our new commerce. And for precisely that reason, access to data is becomingly more of a competitive, and hence an antitrust, concern.…

FTC revises HSR and interlocking directorate thresholds

Last week, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), as well as certain other values under the HSR rules. As background, the HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceeds a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s values, which are adjusted annually based on changes in the GNP, …

Venture capitalism and start-ups in Ohio

Ohio has become a hot spot for venture capitalists to invest in companies. The level of talent and sense of community that the state provides are just a few of the reasons VC’s are putting their money here. Jay talks with Falon Donahue, CEO of Venture Ohio, and Porter Wright attorney Brett Thornton about why many international companies, including start-ups and emerging businesses from Israel, Japan and the EU, large organizations like Amazon and cyber security firms are calling Ohio home.…

ABA Antitrust Section’s Spring Meeting 2016: Agency update with Deputy Assistant Attorneys General

DOJ’s Antitrust Division is headed by an Assistant Attorney General, who is assisted by several Deputies, referred to as DAAGs (Deputy Assistant Attorneys General).  In one presentation, the various DAAGs presented their view on the Division’s enforcement efforts, both civil and criminal. Continuing our series on the 2016 Spring Meeting, Allen summarizes their presentation so you can hear what our enforcers are saying.

-Jay Levine

In a session presented by the Federal Civil Enforcement Committee, the various Deputy Assistant Attorneys General (DAAG) of the Antitrust Division provided a deep dive into the happenings at the Department of Justice’s Antitrust Division …

FTC revises HSR and interlocking directorate thresholds

Last week, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), as well as certain other values under the HSR rules. As background, the HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceeds a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s values, which are adjusted annually based on changes in the GNP, …

Can a class be certified if some members have no injury?

Our colleagues in the class action and product liability practice groups recently posted an article that should be of interest to our readers. The article discusses the court’s conundrum: Can it certify such a broad class even though some of the purchasers likely have no injury? When the Sixth Circuit Court of Appeals says yes and the Ohio Supreme Court says no, the question can be especially difficult for class action practitioners. The article reviews cases from those courts and recaps a recent oral argument before the United States Supreme Court regarding the viability of two “no injury” class actions.…

Violate the Rules Once, Shame on You, Violate the Rules Twice…Go Get Your Checkbook

The Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) have a slightly different take on the old saying of “fool me once” when it comes to violating the premerger notification requirements as two investors recently found out. As we have reported before, under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, 15 U.S.C. § 18a (the “HSR Act”), if certain thresholds are met involving the size (or dollar value) of the persons involved and/or the size of the transaction, the HSR Act requires parties to a transaction (stock or assets) to file a notification with the federal antitrust …

Antitrust woes for Amazon, Part 1

Since the Kindle was released in 2007, Amazon has become dominant in the e-publishing world. Amid its other legal battles over the last eight years, a dispute between authors, the traditional publishing industry and Amazon has been not so quietly brewing. Antitrust Law Source author Darcy Jalandoni and editor Jay Levine discuss some of the interesting twists and turns in the dispute, and what the next chapter holds.…

FTC Breaks 100-Year Silence and Issues “Statement of Enforcement Principles”

On August 13, the FTC issued its “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act.” The 1-page policy statement provides a general framework for the Commission’s exercise of its “standalone” Section 5 authority to fight anticompetitive acts or practices. A bit of context might help to understand why this is newsworthy.

In addition to enforcing the traditional antitrust laws, the FTC is empowered by Section 5 of the FTC Act (which was enacted in 1914) to investigate and proceed against those who engage in “unfair methods of competition” and “unfair …

Lawyers: In a class of their own

Ever wonder how many lawyers can fit into one courtroom? Judge Catherine Perry of the U.S. District Court of the Eastern District of Missouri just may find out. On July 14, Judge Perry granted a motion to certify a class made up of lawyers in Downing v. Goldman Phipps PLLC.[1] Although plaintiffs have not made clear exactly how many lawyers will be in the class, they argued in their class certification briefing that there are more than 33 law firms and over 100 lawyers in the potential class.

What started it all, you ask? It is pretty simple: …

Part three: Has Amazon.com® become an….. amazon? Taking a Hachette to censorship?

In parts one and two we discussed Amazon.com®’s growth into a true giant of the publishing industry – not simply in terms of content, cost or delivery, but in size and strength – and its past history with Apple and its rival publishers (who are also its suppliers).  As part three of this series, we consider whether Amazon’s size and hardball tactics are anticompetitive or  procompetitive, and whether their effect on the dissemination of literature is relevant to an antitrust analysis.

Against this backdrop, Amazon’s “corporate bullying” once again moved into the spotlight in early 2014.  The retailer entered into …

Part Two: Has Amazon.com® become an….. amazon? Taking a bite out of Apple

Our second segment of this three- part series adds some background to the publishing landscape, and through the antitrust saga involving Apple and the largest publishing companies, explores how the evolution of ebooks has impacted not only consumer habits, but the publishing industry as a whole.  Check out Part One of this series here.

The publishing industry has a long, tumultuous history with the antitrust laws.  But with the advent of e-books, the relationship was taken to a whole new level.  Amazon first produced its Kindle platform in 2007, making it the first widely available e-book platform.  The mass …

Knockout blow by UFC fighters?

In Le v. Zuffa, LLC , 11 professional mixed martial arts fighters are pursuing antitrust claims in the U.S. District Court for the District of Nevada against Zuffa, LLC, who operates the popular professional mixed martial arts league known as the Ultimate Fighting Championship, or UFC. Brought as a class action, plaintiffs seek monetary damages and injunctive relief because the UFC allegedly denied them other avenues to sell their services. The UFC is alleged to have gained market dominance by acquiring competing promoters and shutting them down. The plaintiffs also claim that the UFC forced them to enter into contracts …

The U.S. Supreme Court Declines to Consider Two Appeals Addressing the Foreign Reach of U.S. Antitrust Laws

In 1982, Congress enacted the Foreign Trade Antitrust Improvements Act (FTAIA) because it believed that, in the interests of international comity, U.S. antitrust jurisdiction over international commerce should be limited to conduct that affects the U.S. domestic market.  The effect of the FTAIA was to insert a new section into the federal antitrust statutes, 15 U.S.C. § 6a,  that specifically defined their extraterritorial reach.  Unfortunately, the FTAIA’s Section 6a is largely viewed as poorly worded as exceptions to an exception with some ambiguous language.  Consequently, after its enactment, the FTAIA has led to a host of litigation seeking clarity on …

LegalZoom Kicks Off Antitrust Battle Against State Bar Associations

State bar associations and other licensing boards were left like bleeding seals in shark-infested waters following the United States Supreme Court’s landmark decision this February in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101.  The decision held that a state agency controlled by active participants in the market regulated by the agency—a description that fits pretty much every state bar association and other licensing board in areas such as medicine, nursing, cosmetology, etc.—must be “actively supervised” by a politically accountable state official in order to enjoy state-action immunity from federal antitrust laws.  …

Antitrust Probe of Movie Theater Chains Enters Next Act

The U.S. Department of Justice has turned its spotlight on AMC Entertainment, Inc. in the government’s antitrust probe of the nation’s movie theater industry.  In an 8-K filed Monday with the Securities and Exchange Commission, AMC announced that it has received a civil subpoena from the DOJ seeking information and documents relating to AMC’s involvement in joint ventures and film clearances.  The Ohio Attorney General’s office issued a similar subpoena to AMC seeking to investigate potential violations by the company of Ohio’s antitrust laws.

The DOJ’s antitrust probe came to light in mid-May after United Artists Theatre Circuit Inc., a …

Judge finds anti-steering rules to be anti-competitive

Last Thursday, a federal district court judge found that American Express Co.’s anti-steering rules violated U.S. antitrust laws by barring merchants from encouraging customers to use other credit cards. The ruling not only handed a victory to the U.S. Department of Justice (DOJ) and the 17 state attorneys general bringing the suit, but may also, coupled with the DOJ’s earlier settlements with Visa Inc. and MasterCard Inc., have a major impact on the relationship between U.S. merchants and credit card companies in the future.

Each time a customer uses a credit card, a merchant pays a fee to the credit …

Class action suits challenge Capper-Volstead

The Capper-Volstead Act is a powerful 1922 law that allows farmers and their cooperatives to act together for “collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce.” Marketing as it is referred to here, includes price-setting and other conduct that would otherwise violate antitrust laws if not for Capper-Volstead.

In my  article, “Protecting  cooperatives from antitrust  liability,” published by the USDA in its January/February 2015 issue of Rural Cooperatives, I outline why owners of farm cooperatives should be aware of recent lawsuits challenging the Capper-Volstead Act status of some potato, mushroom, egg and …

FTC revises HSR and interlocking directorate thresholds

Last week, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), as well as certain other values under the HSR rules. As background, the HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceed a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s values, which are adjusted annually based on changes in the GNP, …

HSR: Listen to the statute and…wait!

As we have explained in the past, parties to a merger or acquisition must report the transaction to federal antitrust authorities – the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) – provided the parties and the transaction exceed certain thresholds. The statute that governs that reporting obligation, Section 7A of the Clayton Act – otherwise known as the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (HSR Act) – also mandates that parties may not close on the transaction until after a prescribed time, usually 30 days. Relatedly, Section 1 of the Sherman Act …

Mergers 101 – So you have a deal, now what?

This podcast offers a brief introduction into the world of the Hart-Scott-Rodino Antitrust Improvement Act of 1976, more commonly referred to as the HSR Act. Two members of the Porter Wright Antitrust group, Jay Levine and Jetta Sandin, provide listeners with an overview of the history of the Act, the criteria that could make a deal subject to the Act’s reporting requirements, common pitfalls that lead to violations of the Act and the consequences of non-compliance. Stay tuned for the next addition in which Jay and Jetta walk listeners through compliance with the Act’s reporting requirements – “The Form.”…

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