Jeffrey May

Wolters Kluwer (Riverwoods)
Senior legal analyst

Jeffrey May is a senior legal analyst with Wolters Kluwer Law & Business. He edits the CCH Trade Regulation Reporter and is a frequent contributor to the Trade Regulation Talk blog. A member of the Illinois and Pennsylvania bars, he is a graduate of American University and Boston College Law School.

Articles

26144 Bulletin

Jeffrey May The US Senate passes a bill that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation

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Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers* A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The (...)

Jeffrey May A US Court of Appeals rules that one firm’s ability to break into the relevant market does not foreclose the possibility that another company monopolized or attempted to monopolize said market (Lenox / Medtronic)

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Monopoly Claims Can Survive Summary Judgment: Medtronic Must Defend Conduct in “Bone Mill” Market* One firm’s ability to break into the market for “bone mills” used in spinal-fusion surgery did not foreclose the possibility that medical device company Medtronic monopolized or attempted to (...)

Jeffrey May The US Court of Appeals for the 9th Circuit affirms a $500 million fine against a Taiwanese electronics manufacturer for conspiring to fix prices of thin-film transistor-liquid crystal display (AU Optronics)

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Convictions, $500 Million Fine Upheld in Price Fixing Case Against AU Optronics; Foreign Trade Antitrust Improvements Act No Bar* The U.S. Court of Appeals in San Francisco last week upheld the price fixing convictions of Taiwanese electronics manufacturer AU Optronics (AUO), its U.S. (...)

Jeffrey May A US District Court orders the largest care system in Idaho to divest independent multi-specialty physician practice (St. Luke’s Health System / Saltzer Medical)

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Combination of Idaho’s Largest Health System and Largest Physician Practice Must Be Unwound* Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts. Last Friday, it was the Federal Trade Commission’s turn. The (...)

Jeffrey May The US Supreme Court rules that a state attorney general asserting state law claims for injuries incurred by its citizens is not required to be removed to federal court under the Class Action Fairness Act (AU Optronics)

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High Court Rejects Removal of Mississippi Antitrust Suit as Mass Action under Class Action Fairness Act* A price fixing action filed by the State of Mississippi as the sole named plaintiff was not a “mass action” under the Class Action Fairness Act (CAFA), even though the state sought (...)

Jeffrey May The US DoJ and FTC heads discuss antitrust enforcement priorities

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U.S. Agency Heads Discuss Antitrust Enforcement Priorities* Two of the most significant conferences on the antitrust calendar were held last week. Georgetown Law Center featured its Seventh Annual Global Antitrust Enforcement Symposium on September 25, and Fordham Law School’s 40th annual (...)

Jeffrey May The US Supreme Court agrees to review a judicial decision as regards a suit alleging state consumer protection and antitrust claims against manufacturers and distributors of LCD panels (Mississippi/AU Optronics)

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Removability of Parens Patriae Antitrust Actions Under CAFA To Be Considered by U.S. Supreme Court* It appears that the U.S. Supreme Court will soon resolve a split among the circuits on the issue of whether parens patriae actions can be removed from state court as “mass actions” under the Class (...)

Jeffrey May The US District Court for the Northern District of California imposes $500 M fine on a Taiwan-based liquid crystal display (LCD) producer for its participation in a five-year conspiracy to fix the prices of thin-film transistor LCD panels (AU Optronics)

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Acting Antitrust Chief Attributes Recent Enforcement Successes to Focus on Litigation Skills* On September 20, 2012 the federal district court in San Francisco imposed a record-tying $500 million fine on AU Optronics Corporation (AUO), a Taiwan-based liquid crystal display (LCD) producer, for (...)

Jeffrey May A US federal district court approves a U.S. consent decree that resolves DoJ allegations against three publishers for participating in a conspiracy to fix prices for e-books (Hachette Book, HarperCollins, Simon & Schuster)

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U.S. Consent Decree with Three Publishers over E-Book Pricing Approved* The federal district court in New York City yesterday approved a U.S. consent decree that resolves U.S. Department of Justice allegations against three publishers for participating in a conspiracy to fix prices for (...)

Jeffrey May The Kansas Supreme Court condemns vertical price fixing agreements as per se illegal under the Kansas Restraint of Trade Act (O’Brien / Leegin Creative Leather Products)

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Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal* Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of (...)

Jeffrey May A US Court of Appeals rejects FTC’s approach to "pay-for-delay" settlement between brand name and generic drug companies as an unlawful agreement not to compete under S. 5 of the FTC Act (Watson Pharmaceuticals)

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Eleventh Circuit Rejects FTC’s Approach to Pay-for-Delay Settlements as “Turducken Task”* The U.S. Court of Appeals in Atlanta rejected on April 25, 2012 the Federal Trade Commission’s challenge to a patent litigation settlement between brand name and generic drug companies as an unlawful (...)

Jeffrey May The EU Commission blocks proposed merger of stock exchange groups as it would create a quasi-monopoly in the European exchange-traded derivatives industry (NYSE Euronext / Deutsche Börse)

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Deutsche Börse and NYSE Euronext Blame “Narrow” Market Definition for EC’s Objection to Combination* Despite a U.S. Department of Justice decision to clear the deal, the European Commission (EC) today blocked the proposed merger of NYSE Euronext and Deutsche Börse. The EC determined that the (...)

Jeffrey May The US DoJ obtains guilty plea by two Japanese suppliers of automotive electrical components imposing a $548 M fine for their involvement in price fixing and bid rigging conspiracies in the auto parts sales (Automotive component suppliers’ cartel)

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Fines Mounting in Department of Justice Auto Parts Cartel Investigation* The Department of Justice today announced a total of $548 million in fines resulting from a second round of charges in the government’s ongoing investigation into collusive activity in the auto parts industry. Two more (...)

Jeffrey May The US Department of Justice conditionally approves combination of stock exchanges groups while the EU Commission’s review is still pending (NYSE Euronext / Deutsche Börse)

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U.S. Justice Department Conditionally Approves Combination of Stock Exchange Groups, European Review Still Pending* The prospects for the merger of Deutsche Börse AG and NYSE Euronext are looking a little brighter, since the U.S. Department of Justice Antitrust Division conditionally approved (...)

Jeffrey May A US federal district court approves three settlements in a class action for price-fixing conspiracies in the concrete industry defining the case “a model for the nation” (Iowa Ready-Mix Concrete Antitrust Litigation)

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What Do Model Antitrust Class Actions Look Like?* “[O]vercome with a rare and gargantuan sense of awe,” a federal district court judge in Sioux City, Iowa, has called a consolidated class action case arising from price fixing conspiracies in the concrete industry “a model for the nation.” The (...)

Jeffrey May The US Supreme Court denies petition for certiorari brought by a drug manufacturer with respect to federal jurisdiction over antitrust class action claims (Lorazepam & Clorazepate Antitrust Litigation)

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Antitrust Decision from Supreme Court Unlikely During Current Term* It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court (...)

Jeffrey May Seven US States join US DoJ in suit to block the proposed combination of two of the four largest providers of mobile wireless telecommunications services (AT&T/T-Mobile)

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Seven States Join U.S. in Suit to Block AT&T’s Acquisition of T-Mobile* The Attorneys General of California, Illinois, Massachusetts, New York, Ohio, Pennsylvania, and Washington have signed on to the U.S. Justice Department’s complaint challenging AT&T, Inc.’s proposed $39 billion (...)

Jeffrey May The US DoJ obtains guilty plea for obstruction of justice engaged through false documents submission in connection with a merger investigation in the automated teller machine (ATM) industry (Nautilus Hyosung)

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Submission of Altered Documents in Merger Review Leads to Criminal Charges* Automated teller machine maker Nautilus Hyosung Holdings Inc. has been charged with obstruction of justice for submitting false documents to the government in its attempt to obtain U.S.antitrust approval of its (...)

Jeffrey May A US federal court explains its denial of motion to dismiss in Most Favored Nation -MFN- clauses decision in the health care industry (Blue Cross Blue Shield of Michigan)

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Federal/State Antitrust Suit Against Blue Cross Blue Shield of Michigan Can Proceed* Last week, the federal district court in Detroit denied Blue Cross Blue Shield of Michigan’s motion to dismiss a federal/state antitrust action challenging the health insurer’s use of most favored nation (MFN) (...)

Jeffrey May A US Court of Appeals precludes tying claims brought by an hospital upholding the direct-purchaser rule under the Illinois Brick doctrine (Warren General Hospital/Amgen)

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Illinois Brick Direct-Purchaser Rule Precludes Tying Claims by Hospital* The U.S. Court of Appeals in Philadelphia earlier this week reaffirmed the “bright-line” rule limiting federal antitrust standing to direct purchasers. The court upheld dismissal (CCH 2010-1 Trade Cases ¶77,043) of an (...)

Jeffrey May A US Court of Appeals rules for an hospital holding that its campaign to block a potential rival does not violate s. 2 of the Sherman Act and is protected from antitrust liability under the Noerr-Pennington doctrine (Mercatus Group, Lake Forest Hospital)

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First Amendment Rights Provide Antitrust Shield for Successful Petitioning to Block Potential Rival* How far can a competitor go in an effort to convince a local government to block a potential rival from setting up shop in its area without running afoul of the antitrust laws? Last week, the (...)

Jeffrey May The US Supreme Court overturns a court of appeal’s decision in the mobile sector holding that federal law preempts state law banning class action waiver in arbitration agreements (AT&T Mobility/Concepcion)

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Customers’ Efforts to Use Arbitration to Challenge AT&T/T-Mobile Merger Fail* Federal district courts around the country have blocked AT&T Mobility LLC customers from pursuing arbitration to challenge the merger of AT&T Mobility and T-Mobile USA Inc.—a transaction valued at (...)

Jeffrey May A US Court of Appeals holds that the lower court erred in defining the relevant geographic market in an antitrust monopoly claim over the para-aramid fiber industry under section 2 of the Sherman Act (E.I. du Pont de Nemours, Kolon)

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Monopoly Claims Against DuPont Revived by Fourth Circuit* Claims that E.I. du Pont de Nemours and Company attempted to wield, and did wield, monopoly power over the U.S. para-aramid fiber market in violation of Sec. 2 of the Sherman Act should not have been dismissed, the U.S. Court of Appeals (...)

Jeffrey May A US Court of Appeals holds that a class action waiver provision contained in commercial contracts between merchants and charge card issuer/servicer provider was unenforceable (American Express)

342

Enforceability of Class-Arbitration Bans Still an Open Question* Including an arbitration agreement in a commercial or consumer contract that requires your customer to pursue only individual claims in the arbitral forum will not necessarily protect you from class-wide arbitration. You will (...)

Jeffrey May The New York Supreme Court issues a decision on resale price maintenance in the mattress manufacturing sector applying the rule of reason standard (Tempur-Pedic International)

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New York’s Challenge To Mattress Maker’s Resale Pricing Policy Fails* The State of New York was not entitled to an order enjoining mattress manufacturer Tempur-Pedic International, Inc. from restricting discounting by its authorized retailers, a New York state court has ruled. The New York (...)

Jeffrey May The US Court of Appeals for the 7th Circuit upholds the plausibility of a claim for alleged conspiracy in the telecommunications sector under the Twombly standard (Text messaging antitrust litigation)

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Conspiracy to Fix Prices for Text Messaging Services Plausible* Antitrust plaintiffs asserting price fixing claims do not need a “smoking gun” to avoid dismissal of their complaint and proceed to discovery. Yesterday, the U.S. Court of Appeals in Chicago decided that consumers plausibly alleged (...)

Jeffrey May The US Court of Appeals for the 11th Circuit affirms dismissal of price-fixing conspiracy claims in the mattress manufacturing industry for not meeting Twombly pleading requirements (Jacobs, Tempur-Pedic)

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Consumers’ Price Fixing Claims Against Mattress Maker Did Not Meet Twombly Pleading Requirements* A decision from a divided U.S. Court of Appeals in Atlanta earlier this month continues the debate over the appropriate pleading standard for antitrust plaintiffs under Bell Atlantic Corp. v. (...)

Jeffrey May The US DoJ and the State of Michigan file a complaint against health insurance provider alleging that its most favored nation clauses violate section 1 of the Sherman Act (Blue Cross Blue Shield of Michigan)

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Health Insurer Sued over Most Favored Nation Clauses* It has been more than a decade since the U.S. Justice Department has brought an antitrust challenge to enjoin the use of “most favored nation” clauses in the health care industry. Many of the more recent, civil non-merger actions against (...)

Jeffrey May The US DoJ and seven US States file an antitrust suit against three credit and charge card transaction networks, challenging rules that allegedly restrict price competition at the point of sale (Visa, Mastercard, American Express)

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Visa, MasterCard Settle U.S./State Antitrust Suit, While American Express Vows to Fight* The Department of Justice and seven states have filed a civil antitrust suit against the three largest credit and charge card transaction networks in the United States, challenging rules that allegedly (...)

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