Articles on Antitrust and Unfair Competition

Big trouble for big boxes? A pending challenge to promotional packaging based on size By James F. Herbison & Kevin Wolff April 2016 The first of two articles in this issue that discuss a case, Woodman’s Food Mkt., Inc. v. The Clorox Company, Case No. 14-CV-734-slc, 2015 WL 420296 (W.D. Wis. Feb. 2, 2015), that raised an issue of first impression in federal courts as to whether a product manufacturer’s offering of special (large pack) package sizes only to certain “club” retailers such as Costco and Sam’s Club but not to “general market” retailers constitutes a promotional service sufficient to maintain a claim for violation of the price discrimination provisions of the Robinson-Patman Act, 15 U.S.C. §§ 13(d) and 13(e). In Woodman’s, the district court held that Clorox’s offering of its large pack products only to certain retail customers was a promotional service sufficient to allow Woodman’s to state a claim under the Act. Clorox appealed and the case is awaiting decision by the Seventh Circuit Court of Appeals (Appeal No. 15-3001).
Who says the Robinson-Patman Act is a dead letter? By R. Mark McCareins April 2016 The second of the two articles in this issue that discuss the Woodman’s Food Mkt., Inc. v. The Clorox Company case.
In Re: Text Messaging Antitrust Litigation—Aircraft Check Services Co., et al., v. Verizon Wireless et al., No. 14-2301 (7th Cir. April 9, 2015) By Ambrose V. McCall April 2015 The opinion provides a roadmap for the type of evidence plaintiffs must assemble and organize in order to take a Section 1 Sherman Act price-fixing conspiracy claim to trial.
Agency enforcement actions remind companies to be vigilant about HSR requirements By Kristin Petersen March 2015 In 2014, two actions brought by the DOJ and the FTC serve as an important reminder that companies must be diligent about analyzing and complying with applicable requirements under the HSR Act and that failure to do so can be costly.
Overturning the Carriage: A proposed update to the pleading standard for price-fixing claims under the Illinois Antitrust Act By James F. Herbison March 2015 The complexities and newly developed standards of current antitrust law have rendered People v. Carriage Way West, Inc. obsolete as a mode of pleading.
In the agencies June 2014 Recent updates of interest to antitrust & unfair competition law practitioners.
Second Circuit’s opinion in United States v. Grimm: A limit on the statute of limitations in continuing conspiracy cases By Lauren N. Norris June 2014 The Second Circuit’s opinion in United States v. Grimm could limit the U.S. government’s ability to prosecute cases where routine payments within the limitations period, by themselves, are used to indict offenses that would otherwise be time-barred.
Supreme Court upholds arbitration agreement with class action waiver “congressional mandate” must be clear to trump By Marji Swanson Labor and Employment Law, October 2013 Although FAA. American Express Co. v. Italian Colors Rest was an antitrust claim, the decision is so broadly written that it could also have implications on class-action waivers in the labor and employment arena.
Introduction to competition law in India By Tejas Shah International and Immigration Law, February 2013 An overview of India's competition laws.
Antitrust law, variant patent holdup theories, and injunctive relief in standard setting organizations By Rafael Rivera January 2013 After a brief discussion on the standard-setting process and RAND’s efficiency-enhancing characteristics, this article explores the role of antitrust law in regulating opportunistic behavior arising in standard setting organizations.
The Federal Trade Commission and Department of Justice hold workshop on most favored nations clauses—Will more enforcement follow? By Mark McCareins January 2013 On September 10, 2012, the Federal Trade Commission and the Department of Justice held a joint workshop to discuss the economic effects and legal treatment of most favored nations clauses.
Introduction to competition law in India By Tejas Shah January 2013 An overview of India's competition laws.
FTC’s recent administrative complaint In the Matter of Omnicare, Inc., PharMerica merger demonstrates continued significance of traditional market structure analysis By Richard R. Falek & Ralph V. Pantony, III August 2012 The Omnicare complaint demonstrates that the FTC may use the most persuasive—and not necessarily the most current—theories to make their case.
Recent developments in litigation on “pay-for-delay” settlements By Kate O’Súilleabháin August 2012 On July 16, a unanimous panel for the U.S. Court of Appeals for the Third Circuit ruled that any payment by a pharmaceutical company owning a patent to a generics drug manufacturer who agrees to delay entry into the market is prima facie evidence of an antitrust violation.
Focus on exclusionary conduct—Recent U.S. antitrust enforcement actions against refusals to deal with customers or suppliers By Lauren N. Norris March 2012 In re Pool Corp. and other recent actions by the United States’ antitrust enforcement agencies have placed an increased focus on conduct by companies with large market shares that forecloses rivals, or potential rivals, from the market by refusing to deal, or incentivizing customers or suppliers to stop dealing, with a rival.
Latin America starts to sharpen its competition laws By Francisco Ribeiro Todorov, Tulio Freitas do Egito Coelho, Adriana Franco Giannini, Raymundo Enriquez, Reynaldo Vizcarra, & Luis Amado Cordova March 2012 The new Brazilian and Mexican laws passed this year exemplify Latin America's desire to reform anti-competitive conduct in the region.
News roundup March 2012 Recent updates of interest to antitrust & unfair competition attorneys.
Fall news roundup September 2011 Recent developments in antitrust & unfair competition law.
Mergers and acquisitions: Recent changes to the Antitrust Division’s policy guide to merger remedies mark a shift in stance on conduct remedies By Mark McCareins & Mohammad Khatib September 2011 A discussion of the DOJ Antitrust Division’s recently issued policy guide to merger remedies. The guide is intended to provide guidance to Antitrust Division staff in their work analyzing proposed remedies for mergers.
Standing of purchasers of finished products containing price-fixed components: In re Refrigerant Compressors Antitrust Litigation By Eileen Flynn September 2011 The district court’s focus on a defendant’s having both manufactured the compressors and used the compressors it manufactured in a finished product suggests that a manufacturer might not be liable to purchasers of finished products if the manufacturer did not use its own parts in the finished product.
The curious history of resale price maintenance By Charles A. Stewart Business and Securities Law, May 2011 The agreement between manufacturer and retailer to set minimum prices eliminates, or at least dramatically restricts intrabrand competition among retailers of the articles and so is an obvious restraint of trade deemed illegal by the Sherman Act.
Antitrust counseling for firms with large market share: Navigating the antitrust minefield in the current era of uncertainty By James F. Mongoven April 2011 The transcript of remarks given by James F. Mongoven, Deputy Assistant Director of Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission.
Winning at the gate: A practical approach to pleading or attacking antitrust claims in the post-Twombly/Iqbal world By Beth L. Fancsali & Patrick Frye April 2011 Unlike in the pre-Twombly days, plaintiffs may now need to conduct an extensive investigation or obtain expert economic analysis in advance of filing an antitrust suit.
China’s recent regulations on price-related monopolistic conduct By Ying Deng February 2011 Firms doing business in China should be cautious that agreements executed outside of China may still be subject to the Antimonopoly Law of the People's Republic of China, provided that the activities could have some effect on the Chinese market.
Hydrogen Peroxide two years later—Antitrust class certification update By Karen Sewell February 2011 A look at the changes in antitrust class certification since In re Hydrogen Peroxide Antitrust Litigation.
Municipal antitrust immunity: A survey of Illinois decisions By Jamie Manning February 2011 A summary of the cases challenging Illinois municipalities' antitrust liability exemption.
Anti-suit injunctions in the context of international commercial arbitration, Part III By Ricardo Quass Duarte September 2010 The third installment in this analysis of the different legal issues involving the granting of anti-suit injunctions in the context of international commercial arbitration.
Antitrust & unfair competition news roundup September 2010 The latest news developments in antitrust & unfair competition law.
The Antitrust Counselor: Can American Needle be reconciled with Dagher? By Mildred L. Calhoun September 2010 Four years ago the U.S. Supreme Court unanimously ruled in Texaco v. Dagher. Then in May of this year, in another unanimous opinion, the Supreme Court appears to have decided the exact opposite in American Needle v. National Football League.
Anti-suit injunctions in the context of international commercial arbitration, Part II By Ricardo Quass Duarte June 2010 An analysis of the different legal issues involving the granting of anti-suit injunctions in the context of international commercial arbitration.

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