Burden of proof

Anticompetitive practices

The US Supreme Court to review US Court of Appeals decision on standing in antitrust cases (Visa / Mastercard)
Wolters Kluwer (Riverwoods)
Supreme Court Agrees to Consider Sufficiency of Antitrust Conspiracy Allegations in the Context of Business Associations*Last week, the U.S. Supreme Court wrapped up its regular business for the October 2015 term, but not before deciding to put an antitrust case on the docket for the next term. (...)

The Greek Parliament adopts new competition act
Van Bael & Bellis (Brussels)
On 12 April 2011, the Greek Parliament adopted a new legislative framework governing competition law. The Competition Protection Act (“CPA”) replaces Law No. 703/1977 and introduces a number of noteworthy amendments to the Greek competition law regime. In a bid to ensure consistency with the (...)

A US federal judge clears sale of counterfeit luxury goods through auction website, ruling that luxury companies are primarily responsible for policing their trademarks online (Tiffany / eBay)
EDHEC Business School
In a lawsuit brought by the famous jewellery maker Tiffany & Co. , the US District Court of New York (Southern District, Manhattan) ruled on 14 July 2008 that eBay is not required to make greater effort for policing its site for counterfeit items, the primary burden for protecting a brand (...)

The Turkish Competition Authority finds no evidence on exclusionary practices by incumbents against a new entrant in the market for meal cards (Metropal)
University of Sussex
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has rejected the complaint due to lack of evidence that the incumbent undertakings in the market for meal cards collectively resorted to certain exclusionary practices upon the entry into market of the (...)

The EU Commission introduces a new tool to encourage individuals to disclose anticompetitive conduct on an anonymous basis
Jones Day (Brussels)
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Jones Day (London)
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Jones Day (Brussels)
In Short The Situation: The European Commission has launched a new tool that will allow individuals to anonymously report anticompetitive conduct for the first time. The Impact: The Commission’s new access to anonymous inside information could increase the risk of exposure for companies (...)

The Polish administration adopts a new legal framework on counteracting the unfair use of contractual advantage
Office of Competition and Consumer Protection (Poland)
I. Introductory Remarks The act on counteracting the unfair use of contractual advantage in the trade in agricultural and food products of December 15, 2016, Journal of Laws of 2017, item 67 (hereinafter: the “Act”) will enter into force on 12 July 2017. It is the result of EU-wide discussions (...)

The Brazilian Administrative Council For Economic Defense’s tribunal provides further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
CADE’s Tribunal provided, during judgment sessions held between August and November of 2016, further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil, in breach of Brazilian competition law. These decisions were issued (...)

Advocate General Kokott delivers her opinion on an appeal lodged before the EU Court of Justice against a judgment upholding the Commission’s decision finding an illegal price-fixing cartel (Pacific Fruit)
Van Bael & Bellis (Brussels)
Summary On 17 November 2016, Advocate General (“AG”) Kokott delivered her opinion on an appeal lodged before the European Court of Justice (“ECJ”) by Pacific Fruit (and its parent companies) against a judgment of the General Court (“GC”) upholding the European Commission’s decision finding an (...)

The Italian Lazio Administrative Court upholds almost all the findings of the Competition Authority of a collusion in public contracts procurement (School Cleaning Services)
Desogus Law Office (Cagliari)
The Regional Administrative Court for Latium (the Court) has recently handed down four judgments on the appeals filed against the infringement decision made by the Italian Competition Authority (ICA) in the School Cleaning Services case . By this decision the ICA found that Consorzio Nazionale (...)

The Competition Commission of India fines a pharmaceutical laboratory and a pharmacists association for anticompetitive agreement (Alkem / AKCDA)
Chandhiok & Associates (New Delhi)
On 1 December 2015 the Competition Commission of India (CCI/Commission) passed an order fining Alkem Laboratories Limited (Alkem) and the All Kerala Chemist and Druggist Association (AKCDA) for violation of the Competition Act, 2002 (Competition Act). The alleged conduct was held to be an (...)

The Italian Council of State says that major ferry companies did not agree to increase fares for the Sardinia-Continental Italy maritime links (Sardinia Ferries Fares)
Desogus Law Office (Cagliari)
By a recent judgment made on 11 June 2013 in the Sardinia Ferries Fares case1, the Italian Council of State (CS) has rejected the appeal filed by the Italian Competition Authority (ICA) against the judgment of administrative court of first instance (Tar Lazio)2, which overturned the (...)

The Spanish Competition Authority fines undertakings for an agreement and concerted practices during the purchase of soccer broadcasting rights (Telefónica / DTS)
Liège University - IEJE
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Liège University - IEJE
I. The Parties. Defendants: DTS Distribuidora de Televisión Digital, S.A. (DTS) is a company specialising in the management of the platform of satellite pay-TV Canal+. Grupo Telefónica is a group of companies specialising in telecommunications formed by the parent company Telefónica, S.A. and (...)

The Turkish Competition Authority closes the investigation it launched ex officio into consumer electronics suppliers and retailers for exchange of information (Samsung / Gold)
University of Sussex
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has decided that consumer electronics suppliers and retailers did not restrict competition by exchanging information with regard to price increases and decreases. Background Opened ex officio, the (...)

The Indian Competition Commission fines pharmaceutical companies for bid rigging in a public tender (GlaxoSmithKline, Sanofi)
Vinod Dhall and Talwar Thakore & Associates
CCI fines GSK and Sanofi for bid rigging* It has been quite a while since I posted an India update on Cartel Capers. This was partly due to the fact that the CCI has been relatively quiet on the cartel front for the last few months and partly because I have also been relatively busy with (...)

The California Supreme Court delineates a structured rule of reason analysis for evaluating reverse payments or pay-for-delay settlements (Cipro)
Sheppard Mullin (Los Angeles)
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Sheppard Mullin (Washington)
California Supreme Court Delineates a Structured Rule of Reason Analysis for Evaluating Reverse Payment or Pay-for-Delay Settlements* On May 7, 2015, the California Supreme Court issued its long-awaited decision in In re Cipro Cases I & II, Case No. S198616 (May 7, 2015) (Cipro). Cipro (...)

The California Supreme Court crafts "structured rule of reason" test for evaluating pay-for-delay settlements (Cipro)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Following Actavis, California Supreme Court Crafts “Structured Rule of Reason” Test for Evaluating Pay-for-Delay Settlements* Last Thursday the Supreme Court of California decided In re Cipro Cases I & II, No. S198616 (Cal. May 7, 2015), holding that reverse payment, or “pay-for-delay,” (...)

The US Court of Appeals for the 7th Circuit rejects a claim of collusion in the text messaging sector and reminds the limits of "hot" documents (Text messaging antitrust litigation)
BakerHostetler (Washington)
Collusion Course: The Limits of Hot Documents* Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving (...)

A US Court of Appeals stresses the importance for Sherman Act litigants to support their claims of antitrust injury-in-fact with market facts (Netflix)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Ninth Circuit Affirms Dismissal of Netflix Antitrust Suit* Last Friday, the Ninth Circuit affirmed the dismissal of a multidistrict class action brought by Netflix subscribers who claimed the company conspired with Walmart to dominate the online DVD sales and rental markets. In 2005, Netflix (...)

The Indian Competition Commission fines a trade association for calling for price hike (All India Motor Transport Congress)
Vinod Dhall and Talwar Thakore & Associates
CCI fines All India Motor Transport Congress for calling for price hike* The Competition Commission of India (CCI) imposed the maximum penalty of 10% of the average turnover on the All India Motor Transport Congress (AIMTC) the apex trade association for road transport service providers (both (...)

The India Competition Commission clears an alleged cartel for lack of evidence and provides guidance on cross-examination issues (Confederation of Real Estate Developers’ Association of India)
Vinod Dhall and Talwar Thakore & Associates
CCI finds no evidence of a cartel amongst builders but still passes strong observations against exploitative and unfair practices adopted by these builders* The CCI recently closed its investigation into an alleged cartel among builders in India finding insufficient evidence of a cartel (...)

The US District Court for the Northern District of California receives a complaint likely to provide lessons about manufacturers’ efforts regarding resale prices (Costco / Johnson & Johnson)
University of Michigan
Costco v. J&J: The Latest and Largest in a Long Line of Pricing Cases* It’s not often that one Fortune 50 company sues another – but that’s what happened earlier this week when Costco sued Johnson & Johnson (J&J) in California federal court over J&J’s attempts to limit Costco’s (...)

The US District Court for the Eastern District of Pennsylvania holds that Actavis does not require plaintiffs to meet any sort of “threshold burden” for establishing that a large reverse payment is unjustified to trigger analysis under the antitrust rule of reason (Modafinil)
Labaton Sucharow
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Arnold & Porter Kaye Scholer (Washington)
In re Modafinil Litigation Finds No “Threshold Burden” in Reverse Payment Suit* On Wednesday, January 28, in King Drug Company of Florence, Inc. v.Cephalon, Inc. (In re Modafinil), the US District Court for the Eastern District of Pennsylvania held that FTC v. Actavis, 133 S. Ct. 2223 (2013), (...)

The US Supreme Court redefines the standard of appellate review for claim construction (Teva)
White & Case (Palo Alto)
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White & Case (Palo Alto)
On January 20, 2015, the United States Supreme Court redefined the standard of appellate review for claim construction. In Teva Pharm. USA, Inc. v. Sandoz, Inc., the Supreme Court vacated well-established Federal Circuit precedent that applied de novo review to all aspects of claim (...)

A US Court of Appeal dismisses a claim against a standard setting association because of lack of evidence supporting an actionable conspiracy or monopoly (Abraham & Veneklasen / AQHA)
Sheppard Mullin (Los Angeles)
American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act* A Matsushita “Quick Look” Analysis Demonstrates that While Plausible, No Evidence Supports An Actionable Conspiracy or Monopoly. Abraham & Veneklasen Joint Venture et al. v. Am. (...)

A US Court of Appeals leaves open the possibility that a single entity could conspire with its own members or sub-parts (Abraham & Veneklasen / AQHA)
Siemens (New York)
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Patterson Belknap Webb & Tyler
When Can an Organization Conspire with Itself?* The U.S. Court of Appeals for the Fifth Circuit last week reversed a jury verdict and rendered judgment for American Quarter Horse Association (AQHA) in a much-contested antitrust case about AQHA’s ban of cloned horses. The Fifth Circuit left open (...)

A US Court of Appeals decides on whether a "standard-setting" association should be considered as a single entity and dismisses the case for lack of evidence (Abraham & Veneklasen / AQHA)
Constantine Cannon (Washington)
Fifth Circuit Rejects Jury Verdict Of Quarter Horse Conspiracy, Finding Elite Animal Registries To Be A Horse Of A Different Color* A panel of the U.S. Court of Appeals for the Fifth Circuit has reversed a jury’s verdict that a horse breeding association illegally conspired with some of its (...)

The Competition Commission of India initiates an investigation in relation to resale price maintenance in the e-commerce sector (Snapdeal)
Lakshmikumaran & Sridharan (New Delhi)
The CCI has in 2014 initiated two investigations into the alleged imposition of minimum resale price maintenance (RPM). The first one was against Hyundai Motor India Ltd (‘Hyundai Case’) and I had written on the legal standard adopted by the Competition Commission of India to initiate (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)
Sheppard Mullin (Los Angeles)
Agricultural Cooperative Antitrust Litigation Continues to Mushroom* Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the antitrust laws (Mushroom Direct Purchaser)
BakerHostetler (Washington)
Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims* A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the (...)

A US District Court reminds that even if a Court accepts the premise of a reverse non-monetary payment after Actavis, plaintiffs may have to allege facts to allow an estimate of the monetary value of that settlement or risk facing dismissal (Lipitor)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Plausibly Alleging Non-monetary Settlements as Reverse Payments After Actavis* In In re Lipitor Antitrust Litigation, No. 12 Civ. 2389 (D.N.J.), U.S. District Judge Peter G. Sheridan has confirmed his prior ruling that under the Supreme Court’s decisions in Twombly, Iqbal, and FTC v. Actavis, (...)

A US District Judge finds that plaintiffs adequately pled a conspiracy to restrain trade because the defendants “abruptly and simultaneously” switched their positions, especially because their new position harms their own interests (Credit Default Swaps)
Siemens (New York)
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Patterson Belknap Webb & Tyler
In re Credit Default Swaps Antitrust Litigation: Big Banks Still Must Face Section 1 Sherman Act Claim* In a decision upholding most of the class action antitrust claims against 12 of the world’s largest financial institutions, Judge Cote of the Southern District of New York held that the (...)

A US District Judge refuses to dismiss a class-action antitrust law suit on the basis that plaintiffs had alleged facts that showed a plausible conspiracy (Credit Default Swaps)
Constantine Cannon (Washington)
Credit Default Swap Class Action Clears Motions To Dismiss And Proceeds To Discovery* On Thursday, Judge Denise Cote of the U.S. District Court for the Southern District of New York refused to dismiss a class-action antitrust lawsuit involving the $21 trillion credit default swap (“CDS”) market, (...)

The Italian administrative court of first instance annuls the decision of the Italian Competition Authority that fined ferry operators for a concerted practice because it failed to meet the burden of the proof (Moby, GNV, SNAV and Marinvest)
Studio Legale Scoccini E Associati
On 7 May 2014 the administrative court of first instance with jurisdiction on antitrust cases (TAR Lazio) annulled the decision of the Italian Competition Authority (ICA) . The ICA had fined ferry operators Moby, GNV and SNAV and Marinvest - the holding company of the latter two -, after it (...)

The Lazio Regional Administrative Tribunal quashes the decision by which the Italian Competition Authority has sanctioned companies for illicit coordination and annuls the fines imposed (Moby, GNV and SVAV)
Comin and Partners
By its decision of 14 June 2013, the Italian Competition Authority (“ICA”) found that in the summer of 2011 the main companies operating passenger ferry services between Italy and Sardinia - namely Moby S.p.A. (“Moby”), GNV and SVAV (together with Moby, “the Companies”) - reached a common (...)

The Paris Court of Appeal orders to compensate companies in an amount of over € 1.6 million due to their damages resulting from an anti-competitive agreement on prices and sales volumes of synthetic lysine prohibited by the European Commission (Ajinomoto Eurolysine)
Norton Rose Fulbright (Paris)
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Norton Rose Fulbright (Paris)
In a judgment dated February 27, 2014, the Court of Appeal of Paris (Court of Appeal) has, on remand from the Court of Cassation (Court), ordered Ajinomoto Eurolysine (AE) to compensate four companies in the Doux group (Doux) in an amount of over € 1.6 million due to their damages resulting (...)

A US Court of Appeals upholds the judgment of the lower court dismissing claims of conspiracy to restrain trade and attempted monopolization on the market for prosthetic microprocessor knees (DAW Industries / Hanger Orthopedic Group)
Sheppard Mullin (Los Angeles)
Ninth Circuit Once Again Affirms That Malicious Actions To Destroy A Competitor Do Not State An Antitrust Claim Unless Accompanied By Injury To Competition* On February 24, 2014, the Ninth Circuit Court of Appeals affirmed the lower court’s grant of summary judgment dismissing DAW Industries’ (...)

The UK OFT brings criminal charges against ex-manager following an investigation into suspected cartel conduct in respect of the supply of galvanised steel tanks for water storage (Peter Nigel Snee)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?* The Office of Fair Trading (OFT) has charged Peter Nigel Snee under section 188 of the Enterprise Act 2002. It is alleged (...)

The UK CAT rules that antitrust findings as regards the copper plumbing tubes cartel did not support the intent to injure required for a conspiracy claim brought under section 47A of the Competition Act (W.H. Newson / IMI)
London School of Economics and Political Science
Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)* In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act (...)

The Spanish Supreme Court confirms passing on defence subject to strict conditions in the second follow-on claim for an infringement of Antitrust rules against a cartel in the sugar sector (Spanish Sugar Cartel, TS Ebro)
3C Compliance
I. Facts: The Spanish Supreme Court, Tribunal Supremo, issued on 7 November, 2013 the second ruling about a follow-on damage claim against the Spanish Sugar Cartel . These claims were filed in the year 2007 before the local court of Madrid by several sweets and food producers against the (...)

The Canadian Supreme Court rejects the passing-on defence in relation price fixing on the market for compatible PC software (Pro‑Sys Consultants / Microsoft)
Blackstone Chambers
Canadian Supreme Court: No such thing as passing on defence* On Thursday last week the Supreme Court of Canada handed down three much-anticipated judgments concerning indirect purchaser claims. The trio of cases point towards a distinctive, and in many respects more claimant-friendly, approach (...)

The Canadian Supreme Court clears the way for indirect purchaser competition class action related to compensation for harm caused by inflating the price of microchips (Infineon Technologies, Pro-Sys, Sun-Rype)
Steve Szentesi Law Corporation
Canadian Supreme Court Clears the Way for Indirect Purchaser Competition Class Actions: Reason and Clarity Prevail in Previously Muddled Area* Earlier today the Supreme Court of Canada (“SCC”) released three long-awaited companion judgments that finally create clarity and certainty in the area (...)

The Canadian Supreme Court allows indirect purchasers claims for a cartel infringement on the market for processor compatible software (Infineon, Pro-Sys, Sun-Rype)
Davies Ward Phillips & Vineberg (Toronto)
Supreme Court of Canada Allows Indirect Purchaser Claims* Note: On October 31, 2013, Canada’s Supreme Court issued important decisions regarding the scope of private claims for civil damages under the Competition Act. Below is a note prepared by Davies Ward Phillips & Vineberg on these (...)

The Australian Federal Court establishes that the defendant has been directly knowingly involved in the anticompetitive arrangements and imposes criminal sanctions (Chaste Corporation)
Australian Competition and Consumer Commission
Peter Foster sentenced for contempt of court* The Federal Court has sentenced Peter Foster to three years imprisonment, with 18 months to be served and 18 months suspended, for contempt of court. Justice Logan also placed conditions on Mr Foster’s involvement in the weight loss, cosmetic or (...)

The Botswana Competition Commission refuses to confirm the settlement on the basis of lack of any evidence about the respondent’s involvement in the alleged bid rigging food cartel (Ya Raheem)
Norton Rose Fulbright (Johannesburg)
Due process arguments come to the fore as the Botswana Competition Authority gears itself for enforcement* In September and October, the Botswana Competition Commission (Commission) took its first two rulings on cartel enforcement. Both rulings have a keen (if not almost exhaustive) focus on (...)

The Bulgarian Competition Authority finds resale price maintenance practices on the sunflower oil market (Kaliakra)
University of Technology (Tallinn)
On 17 July 2013 the Bulgarian Competition Authority (CPC) prosecuted the producer of bottled sunflower oil Kaliakra AD (Kaliakra) and its distributors for engaging in the resale price maintenance (RPM) practices. The CPC’s investigation was commenced after the completion of the sector inquiry (...)

A Dutch court annuls two cartel decisions for misuse of telephone taps (Constructions cartel and ship waste cartel)
Van Bael & Bellis (Brussels)
With two judgements of 13 June 2013 and 11 July 2013, the Rotterdam District Court annulled the decisions of the Dutch competition authority (now “ACM”) in a constructions cartel and a ship waste cartel. According to the Court, the telephone taps which provided evidence of the cartels could (...)

The Canadian Court of Appeal dismisses the action for damages in a conspiracy claim against joint purchasers in the oil industry (Alberta/Husky Oil Operations)
Affleck Greene McMurtry
No pot of gold at the end of the Rainbow* A decision by joint operators of an oil field to use a single fluid hauler was not an unlawful conspiracy, the Alberta Court of Appeal held recently, overturning a 2011 decision that awarded about $8 million to the loser of a competitive bidding (...)

The Italian Supreme Court reaffirms the principle that infringement decisions of the Competition Authority constitute “privileged evidence” in follow on compensation claims (Private motor insurance cartel)
Simmons & Simmons (Milano)
On 04 March 2013, an order of the Corte di Cassazione - the Italian Supreme Court - reaffirmed the principle that infringement decisions of the Italian Competition Authority (ICA) constitute “privileged evidence” in follow on compensation claims. This order is related, yet again, to disputes (...)

The Chilean Competition Tribunal condemns trade association for collusion (ACHAP)
Chilean Competition Tribunal (Santiago)
On 29th January 2013, the Chilean Competition Tribunal (‘TDLC’) issued its judgment in the ACHAP case (Sentence 128/2013). The TDLC partially accepted the complaint filed by the competition agency (the “FNE”) against the local Advertising Agencies Trade Association (the “ACHAP”, for its Spanish (...)

The Spanish National Court issues a third judgment in the asphalt roads cartel case addressing the issue of the burden of proof in bid rigging cases (Asphalt roads cartel)
CMS Albinana y Suarez de Lezo (Madrid)
In October of 2012 the Spanish National Court (“NC”) concluded its first two judgments on the Spanish asphalt roads cartel (“the Cartel”). In both cases the NC explained how the companies involved in the public bid process decided in a “competitive way” who was going to win the bid. The NC stated in (...)

The EU Court of Justice establishes that a national competition authority does not have to prove appreciable effect on competition for object agreements (Expedia)
Lancaster University
Anti-Competitive Agreements: knowing your ‘object’ from your ‘appreciable’ Posted on February 11, 2013* In October 2012 Christopher Brown posted an interesting blog on AG Kokott’s opinion in Case C-226/11 Expedia. The full judgment was delivered on 13 December 2012 and it seems appropriate to look (...)

The Hungarian Court of Appeal upholds NCA’s decision and reduces fines in IT procurement case (University cartel)
lakatos, koves and partners
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Kinstellar (Budapest)
The background of the case In 2004, the Hungarian Competition Office (HCO) launched proceedings against International System House Kft. (ISH), SAP Hungary Kft. (SAP) and International Business Machines Magyarország Kft. (IBM) for bid-rigging in public procurement. The tenders in question aimed (...)

The Supreme Court of Chile seems to be heading towards a per se rule in the assessment of cartel cases (Explora)
University College London
For the first time since the new Chilean Competition system started in 2004, the Supreme Court has overruled a decision of the Competition Tribunal in regard to a cartel case, which was not originally sanctioned by the latter. But also, the Supreme Court seems to have established a per se rule (...)

A US Court of Appeal unanimously expands extraterritorial reach of US antitrust rules in a foreign price-fixing conspiracy case (Potash II)
Cleveland-Marshall School of Law
Seventh Circuit Sitting En Banc Reverses in Potash, Announces Second Most Important of All FTAIA Opinions, Shores Up the Text Messaging Position on Conspiracy Pleading* Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I (...)

The Canadian Competition Bureau jointly lays 77 charges against 11 individuals and 9 companies in the construction industry in connection with a Quebec bid-rigging case (Carrière Bernier, Cie Wilfrid Allen)
Steve Szentesi Law Corporation
Competition Bureau Jointly Lays 77 Charges Against 11 Individuals and 9 Companies in Quebec Bid-rigging Case – Tough Stance on Criminal Enforcement Continues* On June 21, 2012 the Competition Bureau announced that, together with the Unité permanente anticorruption (UPAC) in Quebec, it has laid (...)

The Indian Competition Commission breaks up a cement cartel and fines cartelists with a record fine of RPS 60 billion (Cement Manufacturers Association)
Computer and Communications Industry Association US (CCIA)
The Competition Commission of India (CCI) has fined eleven cement companies for fixing prices, and for limiting and controlling the output in the cement markets. The CCI has imposed record fines amounting to RPS 60 billion (approximately EUR 836 million) on the cartelists. Economic evidence, (...)

The US District Court for the Northern District of California denies motions for acquittal and for a new trial in LCD price-fixing conspiracy case (AU Optronics)
Wolters Kluwer (Riverwoods)
Convictions in LCD Panel Price Fixing Case Stand After Motions for Acquittal, New Trial Rejected* The government’s successful prosecution of AU Optronics Corporation, its wholly-owned U.S. subsidiary, and two former company executives serves as a cautionary tale. The case marks the first time a (...)

The EU General Court rules on multilateral interchange fees going through the intricacies of art. 101(3) (MasterCard)
Garrigues (Brussels)
Case T-111/08, Mastercard. A priceless Art. 101(3) assessment* A while ago we wrote a post on The Slow Death of Article 101(3) TFEU, where we said that in recent European Commission, practice, only once the challenged agreement was not deemed to be a restriction by “object”, and that only in (...)

A Chinese Intermediate Court dismisses allegations of vertical price-fixing against medical equipments company (Johnson & Johnson)
Institute of American Studies
The Shanghai Court’s Position on Resale Price Maintenance in the J&J Vertical Price-Fixing Litigation* On 18 May 2012, the Shanghai No. 1 Intermediate People’s Court (‘Shanghai Court’) dismissed allegations that Johnson & Johnson Medical (China) Ltd. and its Shanghai branch had set a (...)

The US Kansas Supreme Court holds resale price maintenance is per se illegal under state law, but ruling subsequently overturned by state legislature (O’Brien / Leegin Creative Leather Products)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
The Kansas Supreme Court recently determined resale price maintenance is per se illegal under state law, becoming the latest state to reject the rule of reason standard mandated by the Supreme Court of the United States. The decision serves as a reminder that although a supplier’s pricing (...)

The Kansas Supreme Court holds that resale price maintenance, whether purely vertical or in a dual distribution setting, is per se illegal and rejects applicability of federal rule of reason analysis to claims brought under Kansas antitrust law (O’Brien / Leegin Creative Leather Products)
Crowell & Moring (Washington)
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Crowell & Moring (Irvine)
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Crowell & Moring (Washington)
UPDATE NOTE: On April 16, 2013, the Kansas legislature reversed the decision discussed below, and adopted a "reasonableness" standard for analyzing vertical price agreements. On May 4, 2012, Kansas joined the growing trend among states to limit the distribution flexibility that had been (...)

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)
Wolters Kluwer (Riverwoods)
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 (...)

The Competition Commission of Pakistan grants immunity upon a leniency application that facilitated the breakage of a Rs 36 billion cartel in switchgear and distribution transformer market (Siemens)
Computer and Communications Industry Association US (CCIA)
On April 3 the Competition Commission of Pakistan published a landmark decision imposing fines to members participating on a switchgear and transformer distribution market cartel, upon a leniency application submitted by Siemens. The decision represents a stepping-stone within the Pakistani (...)

The Competition Commission of India fines 48 LPG cylinder manufacturers for engaging in bid-rigging in a tender for supply to oil corporation (IOCL)
Shardul Amarchand Mangaldas & Co (New Delhi)
SUMMARY In tendering for the supply of LPG cylinders to the Indian Oil Corporation Ltd., 48 manufacturers were found by the CCI to have quoted identical or similar rates, and to have bid collectively for particular territories, after reaching an agreement between themselves. The CCI fined each (...)

The EU General Court issues decision holding two joint venture parents liable for cartel behavior of their 50/50 owned joint venture (Dow Chemical Company)
Hogan Lovells (Brussels)
Holding parents liable for 50/50 joint ventures* On 2 February 2012, the EU’s General Court issued two important judgments concerning the issue of whether joint venture parents can be held liable for the cartel behaviour of their 50-50 joint venture. In T-77/08 (Dow Chemical v Commission) and (...)

The EU General Court confirms Commission’s decision holding a parent company jointly and severally liable for cartel behavior of its 50/50 owned joint venture (EI Dupont de Nemours)
Hogan Lovells (Brussels)
Holding parents liable for 50/50 joint ventures* On 2 February 2012, the EU’s General Court issued two important judgments concerning the issue of whether joint venture parents can be held liable for the cartel behaviour of their 50-50 joint venture. In T-77/08 (Dow Chemical v Commission) and (...)

The Belgian Competition Council finds that a directive adopted by a professional association imposing a maximum fee for a specific service constitutes an infringement by object of the Belgian Competition Act, but decides not to impose a fine, merely a publication obligation (National Chamber of Bailiffs)
Stibbe (Brussels)
BE31 [...] & Consorts/Chambre Nationale des Huissiers CONC-P/K-08/0016 Competition Council 08.12.11 I. The facts On 9 July 2008, a number of bailiffs lodged a complaint with the Belgian Competition Council claiming that the National Chamber of Bailiffs infringes Articles 2 and 3 of the (...)

The Moldovan Supreme Court of Justice quashes the infringement decision of the Moldovan Competition Authority on concerted practices in the market for retail trade in oil derivatives for the lack of evidence and failure to specify the anti-competitive object (Parstar Petrol)
University of Technology (Tallinn)
On 15 February 2012 the Moldovan Supreme Court of Justice (CSJ) upheld the judgment issued by the Chisinau Court of Appeals (CAC) against the infringement decision of the Moldovan Competition Authority (ANPC) where the latter found the existence of the concerted practices on the market for (...)

The Competition Authority of Bosnia & Herzegovina finds no anticompetitive practices on the market for telecom interconnection services in the absence of the requisite anticompetitive object and effect (Crumb / Telekomunikacije Republike Srpske, Aneks)
University of Technology (Tallinn)
On 17 November 2011 the Competition Authority of Bosnia & Herzegovina (KV) closed its investigation into the alleged existence of anticompetitive agreement between the incumbent telecom operator Telekomunikacije Republike Srpske a.d.(Telekom RS) and an independent provider of fixed (...)

An Italian administrative court upholds the Competition Authority granting of full immunity and fine reductions to participants in the cosmetic and health care products cartel under the leniency programme (Reckitt Benckiser)
Desogus Law Office (Cagliari)
On appeal on the Cartel of large retailers for cosmetics and health care products decision of the Italian Competition Authority (ICA) the Regional Administrative Tribunal of Latium (Tar Latium) examined full immunity and fine reductions granted to a number of cartelists pursuant to the ICA (...)

The UK OFT issues a statement of objections confirming the immunity for a company in the airline fuel surcharges cartel case (Virgin)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. If Virgin Gets to Keep Its Immunity, Who is Responsible for the Collapse of the BA Trial?* This week the Office of Fair Trading announced that Virgin Atlantic would keep its immunity in the Passenger Fuel Surcharges cartel case. This (...)

A US Court of Appeals holds claims against a foreign price-fixing cartel in the potash industry either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Cleveland-Marshall School of Law
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!* Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)

The EU General Court annuls fine in the Dutch beer cartel case ruling that the evidence available to the EU Commission was not sufficient to establish the parent company liability for its subsidiary’s participation in the cartel (Grolsch)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court annuls fine imposed on parent company for its subsidiary’s participation in a beer industry cartel (Grolsch)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. Grolsch Cartel Fine Annulment: Should Parent Companies Pay for the Anti-Competitive Conduct of a Subsidiary?* The General Court has annulled a €36.6m fine imposed on Grolsch for the price fixing of beer in Holland. In its decision, the (...)

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)
Wolters Kluwer (Riverwoods)
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) (...)

The Moldovan Court of Appeals quashes the infringement decision of the Competition Authority on concerted practices in the market for retail trade in oil derivatives on the basis of lack of evidence (Petrom-Moldova)
University of Technology (Tallinn)
On 24 June 2011 the Chisinău Court of Appeals (the CAC) quashed the infringement decision of the Moldovan Competition Authority (ANPC) establishing the existence of concerted practices on the market for retail trade in oil derivatives. The CAC held that the ANPC failed to present sufficient (...)

The EU General Court reduces fine in the Dutch beer cartel case finding that the EU Commission did not prove all infringements and that the duration of the procedure was excessive (Bavaria)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court reduces fine in the Dutch beer cartel case finding that the EU Commission did not prove all infringements and that the duration of the procedure was excessive (Heineken)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court holds for the first time that the Commission erred in relying on the presumption that a parent company is liable for the anticompetitive conduct of its wholly-owned subsidiary (Hydrogen Peroxide)
White & Case (Brussels)
,
White & Case (London)
By its decision of 3 May 2006, the Commission imposed fines totalling over EUR 388 million on a number of companies for their participation in a cartel on the market for hydrogen peroxide and sodium perborate (bleaching agents) between 31 January 1994 and 31 December 2000. Among the companies (...)

The EU General Court partially annuls the Commission’s decision and reduces fines in a cartel case concerning the Dutch beer market (Netherlands Beer)
White & Case (Brussels)
,
White & Case (London)
By its decision of 18 April 2007, the Commission imposed fines totalling approximately EUR 270 million on several Dutch brewers, including Heineken NV and its subsidiary Heineken Nederland BV, and Bavaria NV, for their participation in a cartel on the Dutch beer market between 27 February 1996 (...)

A Moldovan Court of Appeals quashes the concerted practices decision of National Competition Authority for the failure to demonstrate the existence of a price coordination mechanism and the absence of alternative explanations (Lukoil Moldova)
University of Technology (Tallinn)
On 12 May 2011 the Chișinău Court of Appeals (the CAC) quashed the infringement decision of the Moldovan Competition Authority (ANPC) establishing the existence of the concerted practices on the market for retail trade in oil derivatives. The CAC held that the ANPC failed to prove that seven (...)

A US Federal District Court rejects breach of contract defense based on the illegality of the contract under the Robinson-Patman Act (Pet Food Express, Royal Canin)
Wolters Kluwer (Riverwoods)
Robinson-Patman Act Defense Rejected in Breach-of-Contract Case&* Asserting a breach-of-contract defense based on the illegality of the contact under the Robinson-Patman Act appears to be as difficult as successfully alleging a Robinson-Patman Act claim itself. Earlier this week, the (...)

The EU General Court overturns EC’s fine decision becasuse of insufficient evidence to sustain the penalty in a copper fitting cartel (Aalberts Industries)
On March 24, 2011, the European General Court overturned more than €100 million in fines imposed against Aalberts Industries NV and its subsid- iaries for its alleged involvement in a copper fittings cartel, finding the EC’s evidence insufficient to sustain the penalty. The EC had fined 30 (...)

The UK Competition Appeal Tribunal narrows the scope of follow-on claims (Emerson Electric / Carbone)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
This article has been nominated by the Business Steering Committee for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 21, 2011, the U.K. Competition Appeal Tribunal (the “CAT”) struck (...)

The European Court of Justice issues a decision on a rubber chemicals cartel holding a parent company liable for the anticompetitive behaviour of its wholly-owned subsidiary and confirming that the presumption of parental liability is rebuttable (General Química)
Garrigues (Brussels)
The ECJ rules on parenthood (General Química v Commission)* The ECJ issued a Judgment yesterday in the General Química-Repsol case in which it partly upheld and partly annulled the General Court’s judgment dismissing the appeals against the Commission decision in the rubber chemicals cartel. In (...)

The UK Court of Appeal upholds a decision of the Competition Appeals Tribunal denying a claimant follow-on damages (Enron Coal Services/ English Welsh & Scottish Railway)
Francis Taylor Building
I. Overview In January 2011, the UK Court of Appeal (the “Court”) dismissed an appeal against a ruling of the UK Competition Appeal Tribunal (the “Tribunal”) that Enron Coal Services Ltd (“Enron”) was not entitled to follow on damages against English Welsh and Scottish Railway Ltd (“EWS”). The Court (...)

The European Commission issues new guidelines on horizontal co-operation agreements focusing on information exchanges under Art. 101 TFEU
University of South Australia
Information Exchange and Cartels – Dangerous Liaisons?* Are information exchanges really = cartels under EU competition law? The issue has triggered many discussions on the blog lately. I just thought I’d post my own ruminations on this. The Guidelines do not really say that information (...)

The European Commission issues new guidelines on the applicability of Art. 101 TFEU to horizontal co-operation agreements equating information exchanges between competitors with cartels
Garrigues (Brussels)
Information exchange=cartel?* Many have praised the inclusion of some guidance on exchanges of information within the new EU Guidelines on horizontal agreements. Personally, I agree with those arguing that guidance from the Commission was necessary, and I acknowledge that there are some useful (...)

The Chinese State Administration for Industry and Commerce (SAIC) issues three substantive regulations on enforcement of the Anti- Monopoly Law
Linklaters (Beijing)
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Linklaters (Shanghai)
,
Linklaters (London)
On 7 January 2011, the State Administration for Industry and Commerce (“SAIC”) published three substantive Regulations on enforcement of the Anti- Monopoly Law (“AML”), regarding Monopolistic Agreements, Abuse of Dominance and Abuse of Administrative Powers. In May 2009 and May 2010, SAIC twice (...)

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)
Wolters Kluwer (Riverwoods)
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 (...)

The General Court of the European Union annuls a Commission’s decision limiting its discretion to reject complaints and addressing the issue of market definition in the luxury watches repair services and spare parts markets (CEAHR)
Garrigues (Brussels)
Wrapping up the week / Case T-427/08, CEAHR v Commission* Case T-427/08, CEAHR v Commission The complaint: The European Confederation for watch repairers associations lodged a complaint before the Commission alleging that watch manufacturers had engaged in agreements and/or concerted (...)

The EU General Court confirms the €38 million fine imposed for breaking a seal affixed to an office of a company by the Commission during an inspection (E.ON Energie)
Vogel & Vogel
On 15 December 2010, the General Court of the European Union (EGC) handed down a tough but very thoroughly argued decision on the infringement of breaking of an official seal. The European Commission had ordered an inspection of the premises of the company E.ON Energie AG in the context of an (...)

The Italian Court of First Instance confirms the Italian Competition Authority’s decision in a price fixing case concerning the liquefied petroleum gas sector (Butangas, Eni, Liquigas)
Bonelli Erede (Rome)
In its judgment delivered on 13 December 2010, the Italian Court of First Instance ("Tar Lazio") confirmed the decision by which the Italian Competition Authority ("ICA") found the three main operators active in the LPG sector in Italy (i.e. Butangas, Eni and Liquigas) to have coordinated their (...)

The Bulgarian Commission for Protection of Competition closes a probe into alleged bid-rigging among suppliers of pharmaceuticals without establishing an infringement (Alta Pharmaceuticals, Roche)
Kinstellar (Sofia)
The Bulgarian Commission for Protection of Competition (the «CPC») closed an investigation into alleged bid-rigging practices among suppliers of pharmaceuticals absent collaborative evidence of price coordination and with further regard to the transparency-enhancing effects of the domestic (...)

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)
Wolters Kluwer (Riverwoods)
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. (...)

A US federal district court denies dismissal of antitrust conspiracy claim in tomato products industry (The Morning Star Company, SK Foods)
Wolters Kluwer (Riverwoods)
Claim of Antitrust Conspiracy Among Tomato Processors Avoids Dismissal* The federal district court in Sacramento, California, has refused to dismiss an antitrust claim alleging that SK Foods L.P.—a now-defunct food products distributor—conspired with others to eliminate competition in the market (...)

The EU General Court rules on liability for Spanish raw tobacco cartel (Alliance One International)
Winston & Strawn (New York)
On October 27, 2010, the General Court rendered a decision in the appeal by Alliance One International (formerly Standard Commercial Corp. (“SCC”)), and its subsidiaries Standard Commercial Tobacco Co., Inc. (“SCTC”) and Trans-Continental Leaf Tobacco Corp. Ltd (“TCLT”) (together, the “Applicant (...)

The US DoJ challenges "most favoured nations" clauses in the healthcare sector, analyzing their anticompetitive effects under section 1 of the Sherman Act (Blue Cross Blue Shield of Michigan)
Richard Wolfram, Esq. (New York)
‘Most Favored Nations’ (MFN) Clauses under the Spotlight: U.S. v. Blue Cross Blue Shield of Michigan — When Might Otherwise Competitively Neutral or Procompetitive MFN Clauses Violate the Antitrust Laws?* On October 18, 2010, the U.S. Department of Justice and the State of Michigan sued Blue (...)

The ECJ confirms Commission must assess whether an agreement to limit parallel trade in medicines has pro-competitive benefits (GlaxoSmithKline)
Linklaters (Paris)
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Linklaters (London)
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French Competition Authority (Paris)
On 6 October, the European Court of Justice (‘ECJ’) issued another “score draw” judgment in the long-running battle of R&D-based pharmaceutical companies to limit parallel trade in medicines across the EU. While the ECJ required the European Commission to conduct an in-depth examination of (...)

A US District Court rules against plaintiffs in the auto parts industry holding that they failed to prove specific facts under Robinson-Patman Act’s price discrimination provision (Coalition for a Level Playing Field, Autozone)
Scharf Banks Marmor
Is it Possible to Plead a Robinson-Patman Act Case at All?* The recent decision in Coalition for a Level Playing Field, LLC v. Autozone, Inc., 2010-2 Trade Cas. ¶ 77,182 (S.D.N.Y. Sept. 16, 2010) was a bit surprising to me. The essence of the case was that a group of smaller purchasers of (...)

The Dutch Trade and Industry Appeals Tribunal holds that undertakings participating in an exchange of information amounting to a concerted practice should not be required to adduce irrefutable evidence that such exchange do not have any effect on their conduct on the market (KPN, Orange, Telfort, T-Mobile, Vodafone Libertel)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
The Dutch Trade and Industry Appeals Tribunal has held that by virtue of Article 6 of the ECHR, undertakings participating in an exchange of information amounting to a concerted practice should not be required to adduce irrefutable evidence that such exchange did not have any effect on their (...)

The Karlsruhe Higher Regional Court rules on key issues of private damages actions against hardcore cartels, decides on the indirect customer’s right to claim and addresses the challenging task of quantifying antitrust damages (Carbonless paper cartel)
Eberhard Karls University
,
Eberhard Karls University
Introduction Private enforcement in hardcore-cartels cases is getting in motion. In Germany, within less than one year two actions for damages against participants in hardcore-cartels were successful. After the decision of the Berlin Higher Regional Court in the “Berliner Transportbeton”-case (...)

The Luxembourg Competition Council imposes its first fines for cartel practices and clarifies its fining and leniency policy (“Cité judiciaire”)
NautaDutilh (Luxembourg)
1. On 5 March 2010, the Luxembourg Competition Council (“Conseil de la concurrence”) has imposed fines on 7 flooring undertakings for bid rigging practices during a public procurement procedure for flooring works in the new court buildings in Luxembourg-City. The procedure began with a complaint (...)

A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)
Sheppard Mullin (Los Angeles)
Cross-Market Claims Flunk Twombly* In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)

The US Court of Appeals for the 2nd Circuit reverses a District Court decision and rules that the plaintiff satisfied the Twombly standard in a conspiracy case alleging parallel conduct (Starr / Sony BMG)
WilmerHale (Washington)
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In a notable recent decision, Starr v. Sony BMG Entertainment, 592 F.3d 314 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit addressed the pleading standard a plaintiff must satisfy to survive a motion to dismiss an antitrust conspiracy claim under § 1 of the Sherman Act (...)

The Romanian Competition Authority imposes an 8% fine to an association of undertakings for price fixing and refers for the first time to criminal investigation bodies (Association of the Depositories of Cereals)
NNDKP
Price fixing by associations of undertakings is no novelty in the competition world. Neither are heavy fines, although it is not often that a competition authority reaches an 8% fine for a short term infringement (be it price fixing), and without application of any aggravating circumstances. (...)

The Regional Administrative Tribunal for Latium upholds the decision of the Italian Antitrust Authority on the Pricing of Pasta case
Desogus Law Office (Cagliari)
By a judgment of December 2009 the Regional Administrative Tribunal for Latium decided on the appeal against the decision of the Italian Competition Authority (ICA) in the Pricing of Pasta case. The ICA had fined 26 pasta manufacturers and two trade association for having cartelized the market (...)

The Polish Appeal Court annulls the judgment of the Court of Competition and Consumer Protection pointing out that joint buying groups require a more in-depth competition analysis even in cases of resale price maintenance (PSB, Gamrat)
Greenberg Traurig Grzesiak (Warsaw)
The Polish Appeal Court has quashed a Competition Court decision on procedural grounds pointing out that joint buying groups require a more in-depth competition analysis even in cases of resale price maintenance. On 10th November 2009, the Appeal Court issued a long awaited judgment concerning (...)

A US District Court finds sufficient ground for a claim on alleged illegal secret rebates, kickbacks and commissions, though it rejects the claim on collusive conduct on the market for sales of title insurance (California Title Insurance)
Sheppard Mullin (Los Angeles)
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market* Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)

The Berlin Higher Regional Court rules on key issues of standing and standard of proof in cartel damages suits
Eberhard Karls University
,
Eberhard Karls University
I. Introduction In its judgment on the first of October 2009 the Berlin Higher Regional Court has decided on important and disputed questions concerning the private enforcement of cartel damage claims under the German Act against restraints of Competition (“ARC”). Several statements in the (...)

The Belgian Supreme Court makes clear that a judge cannot invoke Art. 81.3 EC on its own motion if it was not invoked by one of the parties to the case (Brouwerij Haacht)
VMMa
Facts The case concerns an appeal to the Belgian Supreme Court against a decision of the Brussels Court of Appeal. It is important to note that the Belgian Supreme Court does not assess the facts of a case, it can only decide on the legality of a judgment. The case concerns an exclusive (...)

The English High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald/British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom
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Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The Paris Court of Appeal confirms the fines imposed in a collective boycotting case and its strict case law on standard of proof (Defibrillators)
Hewlett Packard (Boulogne-Billancourt)
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Ginestié Magellan Paley-Vincent
On 8 April 2009, the Paris Court of Appeal (the "Court") confirmed the decision of the French Competition Council (the "Authority") dated 19 December 2007 to fine five of the world’s leading implantable heart defibrillator manufacturers (Biotronik, Ela Medical, Guidant, Medtronic and Saint Jude (...)

The ECJ Advocate General Kokott gives opinion on standard of proof with regard to anti-competitive concerted practices (T-Mobile Netherlands)
Van Bael & Bellis (Brussels)
On 19 February 2009, Advocate General Kokott delivered her opinion in relation to a preliminary reference from a Dutch court regarding the requirements that must be satisfied to establish an anti-competitive concerted practice for the purposes of Article 81(1) EC. The case before the Dutch (...)

A Belgian Court of appeal infers a cartel from a similar approach adopted by several medical oxygen providers boycotting a competitor (AGIM/Oxycure)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
Facts of the case 1. Oxycure markets an oxygen concentrator, which generates medical oxygen on the spot and hence constitutes an innovative and a more efficient alternative to medical oxygen distributed in bottles. As the oxygen concentrator works on electricity, Oxycure’s clients need reserve (...)

The German Federal Cartel Office imposes € 165 M fines against manufacturers of clay roof tiles for price fixing and applies leniency (Creaton, Pfleiderer Dachziegel, Koramic Dachprodukte, Monier, Erlus Gebr. Laumans)
Mutze Korsch Rechtsanwaltsgesellschaft
Background The building materials sector has been often involved in cartel investigations over the last decades. The German Competition Authority (Federal Cartel Office, "FCO") is currently investigating more than one case where companies within this sector are alleged to have infringed (...)

The Dutch Competition Authority decides not to impose fines on ten producers of fluid-concrete as the participation of all undertakings in the infringement was not established and as result no appreciable restriction of competition could be determined (Betonmortelfabriek Utrecht)
Stibbe (Amsterdam)
Introduction On January 11, 2006 the Dutch Competition Authority (NMa) imposed fines on ten Dutch producers of fluid-concrete for a total amount of € 6 million for an infringement of Article 6 of the Dutch Competition Act. According to the NMa the undertakings exchanged information about price (...)

The Hungarian High Court of appeal upholds the competition office decision case and also accepts the approach of the first instance decision as regards the reduction of the fines (GIS cartel)
Oppenheim
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Oppenheim - Budapest
The Budapest Court of Appeal upheld, in its second instance judgment, the verdict of the Metropolitan Court of Budapest in the "GIS cartel" case: the judgment confirmed the existence of the infringement, whilst it accepted the lower court’s decision to decrease the fines imposed on the (...)

An Italian administrative Court confirms that a cartel took place in hospital supplies but slashes down fines (Bristol Myers Squibb)
Latham & Watkins (Brussels)
Introduction The Regional Administrative Tribunal of Latium, Rome Section (“TAR Latium”) by a judgment published on 6 June 2008 has upheld a decision of the Italian Antitrust Authority (“IAA”) finding that four companies had rigged supplies of ostomy products to the Italian National Health System (...)

The Lisbon Commerce Court annuls the Competition Authority’s decision in the alleged ‘helicopter cartel’ case (Aeronorte & Helisul)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
In May 2008 the Lisbon Commerce Court issued a ruling (case 48/08.7TYLSB) that quashed the Portuguese Competition Authority’s decision of 2007 (case PRC 20/05) that found out that two companies (Aeronorte and Helisul) had engaged in a bid-rigging cartel for the provision of helicopter services (...)

A Portuguese Court annuls Competition Authority’s finding of a price fixing and market sharing cartel in the market for fire-fighting helicopters (Helicopters’ cartel)
PLMJ (Lisboa)
I. The facts and the administrative proceedings In October 2007, the Portuguese Competition Authority (the “PCA”) issued a decision finding a price-fixing and market-sharing cartel between Aeronorte and Helisul in their reply to the public tender for helicopters to fight forest fires, and (...)

The Hungarian Competition Council accepts commitments to modify the membership fees of the Budapest Stock Exchange and terminates a cartel investigation against trading companies (Budapesti Értéktõzsde Zrt.)
Ernst & Young
The background of the investigation The Competition Office initiated an investigation against the Budapest Stock Exchange ("BSE") and 11 trading companies, as it suspected an illegal horizontal coordination among the trading members of the BSE concerning (i) the amendment of BSE’s membership (...)

The Hungarian Competition Office holds, in relation to the distribution of energy drinks, that selective resale price fixing is not a hardcore restriction (Büki Ásványvíz- és Üditõital Kereskedelmi)
Morley Allen & Overy Iroda (Budapest)
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MVM OVIT (Budapest)
Background In its decision of 14 May 2008 (GVH Decision), the Competition Council of the Hungarian Competition Office (GVH) terminated the proceedings against Büki Ásványvíz- és Üditõital Kereskedelmi Kft. (Büki Ásványvíz), with respect to certain restraints in vertical agreements concluded by the (...)

The UK Office of Fair Trading updates its position on newspapers and magazines work (Newspapers and magazines work)
King’s College (London)
On the 11 March 2008 the OFT published a press release, providing an update on distinct, but linked, work strands regarding the newspaper and magazine sector : (a) the preparation of guidance to assist publishers and distributors in assessing for themselves whether their newspaper and (...)

The UK OFT announces financial incentives for information regarding cartel activity
Linklaters (London)
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,
Linklaters (London)
The OFT published details today of ground-breaking plans to offer rewards of up to £100,000 for the provision of information on cartel activity. The OFT is one of the first anti-trust regulators to introduce such reward payments, and the move marks a further escalation of the OFT’s (...)

A Dutch Court makes a reference for a preliminary ruling to the ECJ concerning the application of Art. 81.1 EC to concerted practice between mobile phone operators (KPN Mobile)
European Commission - DG HR
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European Court of Justice (Luxembourg)
In December 2002, the Dutch Competition Authority (hereafter the ‘NMa’) imposed fines upon five Dutch mobile phone companies for breach of Article 6 of the Dutch Competition Act (a provision equivalent to Article 81 (1) EC). The NMa found that those mobile phone operators exchanged confidential (...)

The French NCA applies for the second time leniency and highlights discrepancy with EC competition law on concerted practices’ burden of proof ("Removals cartel")
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
Summary of the decision Following an investigation with dawn raids and seizures initiated further to a leniency application, the French Competition Council has sanctioned a horizontal cartel between twelve companies in the sector of national and international removals to and from France, (...)

The French Commercial Supreme Court partly annuls the Paris Court of Appeal’s judgment on illicit exchange of sensitive information in the mobile telephony cartel, thus strengthening the standard of proof (Bouygues Telecom SFR and Orange)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
,
Eversheds Sutherland (Paris)
French Commercial Supreme Court [Cour de cassation (Chambre commerciale, financière et économique)], 29 June 2007, Bouygues Telecom, Orange, SFR, Cases n° U 07-10.303, Z 07-10.354 and W 07-10.397 Proceedings In its decision of November 25, 2005, the French Competition Council imposed record (...)

The US Supreme Court sets aside Dr. Miles rule on resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leeging)
Grant & Eisenhofer
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Porter Wright Morris & Arthur (Washington)
Dr. Miles: Will the Supreme Court Find a Cure?* On December 7, 2006, the U.S. Supreme Court agreed to hear Leegin Creative Leather Products, Inc. v. PSKS, Inc.,which presents the Court with an opportunity to address the per se minimum resale price rule established almost a century ago in Dr. (...)

The US Supreme Court overrules prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices as a per se violation (Leegin Creative)
Kozyak Tropin and Throckmorton Law Firm
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Holland & Knight (Miami)
Vertical Price Agreements in the Wake of Leegin v. PSKS: Where Do We Stand Now?* I. INTRODUCTORY REMARKS For nearly a century, agreements between retailers and suppliers stipulating a minimum retail price were considered per se violations of the Sherman Act. Resale price maintenance (“RPM”) (...)

The US Supreme Court reverses the 96 year old-doctrine governing resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leegin Creative)
Hahn Loeser & Parks (Columbus)
Introduction In the summer of 2007, the United States Supreme Court overruled a ninety-six year old precedent when it overruled the historical decision of Dr. Miles in Leegin Creative Leather Products, Inc. v. PSKS, Inc.. Relying on economists’ views, the majority took a drastic measure and (...)

The US Supreme Court redefines notice pleading and clearly raises the bar for plaintiffs in private antitrust conspiracy claims (Bell Atlantic/Twombly)
St. John’s University School of Law
Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler and the Uncertain Future of Antitrust Enforcement* The Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is a watershed ruling whose impact on private litigation, especially antitrust (...)

The US Supreme Court defines minimum pleading standard in antitrust class action (Bell Atlantic/Twombly)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
In a 7-2 decision on May 21, 2007, the Supreme Court held that a complaint alleging antitrust conspiracy based on parallel conduct alone fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). Bell Atlantic Corp. v. Twombly, No. 05-1126. Further, the Court held that a bare (...)

The US Supreme Court holds that an allegation of parallel conduct and a bare assertion of an agreement don’t suffice to state a claim of conspiracy under the Sherman Act (Bell Atlantic / Twombly)
Paul Hastings (New York)
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Paul Hastings (New York)
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INTRODUCTION On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In Bell Atlantic Corp. v. Twombly, No. 05‐1126, the Supreme Court (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana - Maurer School of Law
Pleading Consumer Antitrust Claims* The U.S. has long followed a system of private enforcement of law meant to redress public harm. In the law of antitrust, from the very beginning U.S. law provided a claim to plaintiffs who could show harm flowing from the violation. Convincing private (...)

The Hungarian Supreme Court confirms the NCA’s decision having imposed a € 1.1 M fine for price fixing on the basis of Art. 81 EC to major multiplex movie theatres (Budapest Film)
Hogan Lovells
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Hungarian Supreme Court (Legfelsobb Bíróság), 25 April 2007, Budapest Film Kft, InterCom Rt, Palace Cinemas Magyarország Kft and UCI CE Magyarország Kft v. Hungarian National Competition Authority (Gazdasági Versenyhivatal) Hungarian Press release The Hungarian Competition Authority (“HCA”) (...)

The Romanian High Court quashes a NCA’s decision having imposed a 27 M euro fine for price fixing practices for insufficient proof on the basis, inter alia, of ECJ case law
Gide Loyrette Nouel
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Dechert (Paris)
Romanian High Court of Cassation and Justice (Înalta Curte de Casatie si Justitie), 5 March 2007, Decision n° 1358 The Romanian High Court of Cassation and Justice has recently made an application of the principles governing the burden and the level of proof in antitrust cases, overturning (...)

The Lithuanian Supreme Administrative Court confirms the NCA’s decision sanctioning taxi companies for price fixing through concerted practice (Martono taksi)
Sorainen (Vilnius)
In a decision dated 11 May 2006, the Lithuanian Supreme Administrative Court (LSAC) upheld the decision of the Vilnius District Administrative Court (VDAC) from 19 September 2006 with some corrections in the calculation of fines and confirmed the original decision of Lithuanian Competition (...)

The French NCA fines nearly 80 companies and trade associations for horizontal and vertical agreements in the sector of heating, sanitation, plumbing and air-conditioning products and clarifies the standard of proof applicable to anticompetitive meetings (Agreement in the sector of heating, sanitary, plumbing and air-conditioning products)
Dechert (Paris)
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Herbert Smith Freehills (Paris)
In a decision of 9 March 2006, the French Competition Council (the "Council") fined nearly 80 companies and trade associations for unlawful practices implemented between 1993 and 1998 in the sector of heating, sanitation, plumbing and air-conditioning products. These practices included (i) (...)

The US Supreme Court reaffirms market power requirement to determine a tying arrangement as per se unlawful (Independent Ink)
BakerHostetler (Washington)
Are tying arrangements illegal per se?* In the deep, dark antitrust dungeon reserved for per se offenses, only one species of conduct remains that does not involve a horizontal conspiracy: tying arrangements. Minimum resale pricing agreements tunneled their way out thanks to the Supreme (...)

The US Supreme Court overturns a lower court decision for the plaintiff but reiterates the traditional method of proving secondary line price injuries under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Seattle University
The Robinson-Patman Act and Consumer Welfare: Has Volvo Reconciled them?* The Robinson-Patman Act is the black sheep of antitrust. Unlike the other antitrust laws, its fundamental goal is not to preserve competition in order to benefit consumers, but to limit competitive rivalry in order to (...)

The US Supreme Court reverses a lower court’s decision clarifying competitive injury and secondary price line discrimination under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Mayer Brown (New York)
Competitive Injury and Price Discrimination in the United States* In Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., the Supreme Court provided guidance on whether, under the Robinson-Patman Act, a manufacturer may offer one dealer better prices than another dealer when those (...)

The German Federal Court of Justice rules on the standard of proof for the existence of a revenue surplus from a cartel agreement (Transportbeton Berlin)
University College London
On June 28, 2005, the German Federal Court of Justice (FCJ) clarified the standard of proof in cases in which the state seeks to disgorge the revenue surplus (“additional proceeds”) from a cartel. I. Facts of the case Between 1995 and 1998, nearly all producers of ready-mixed concrete in the (...)

The US Supreme Court prevents foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
St. John’s University School of Law
The FTAIA and Empagran: What Next?* In F. Hoffman LaRoche Ltd. v. Empagran S.A., 542 US 155 (2004), the Supreme Court limited access to American courts by foreign plaintiffs suing under the Sherman Act based on foreign transactions. Jurisdiction over foreign antitrust claims is governed by (...)

The US Supreme Court restricts the applicability of US antitrust laws with regard to injuries suffered abroad holding that foreign nations can preserve competition without American interference (Hoffman-La Roche / Empagran)
IRS Office of Chief Counsel
F. Hoffman-La Roche Ltd. v. Empagran S.A.: The Supreme Court Trusts That Foreign Nations Can Preserve Competition Without American Interference* In F. Hoffman-La Roche Ltd. v. Empagran S.A., the United States Supreme Court held that United States courts do not have jurisdiction over claims of (...)

The U.S. Tenth Circuit Court of Appeals applies a “quick look” rule of reason analysis and ultimately rejects an association-wide salary cap imposed on a position within each member organization in the college basketball industry (Law/NCAA)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Tenth Circuit struck down an NCAA-wide salary cap imposed on the earnings of “restricted-earnings” coaches as an unreasonable restraint of trade. Instead of applying per se illegality to a price-fixing agreement, the Court determined that a “quick look” rule of reason was more appropriate (...)

Dominance

The EU Court of Justice accepts an alternative to the United Brands test to establish excessive pricing (AKKA / LAA)
Desogus Law Office (Cagliari)
On replying to the preliminary questions referred by the Supreme Court of Latvia (SCL), in AKKA v LAA the CJEU has accepted a methodology other than the two-limb United Brands test to establish an excessive pricing practice. The CJEU also clarifies the criteria to set the amount of the fine (...)

The Appeal Court of Ljubljana annuls a decision in relation to minor offence proceedings against a collecting society (SAZAS: Slovenian organization for collective management of copyrights for authors)
Fatur Law Firm (Ljubljana)
Introduction In SAZAS case, the Slovenian Competition Protection Office (hereinafter referred to as the CPO) adopted a partial administrative decision in April 2011 (Case 306-35/2009-108), finding that Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (...)

The Chinese Supreme People’s Court dismisses an application to re-try a case in Shaanxi involving taxis and exclusive dealing (Taxi case)
University of Melbourne
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China Competition Bulletin (Beijing)
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Hogan Lovells (Beijing)
On 17 March 2016, the Supreme People’s Court (SPC) released its decision to dismiss an application to re-try a case in Shaanxi involving taxis and exclusive dealing. In that case, two private local taxi companies sued three other local taxi companies for exclusive dealing. The SPC made its (...)

The Italian Supreme Court applies the principles of Directive 2014/104/EU in favour of claimants in a stand-alone case concerning an abuse of dominant position (Cargest)
Studio Legale Scoccini E Associati
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Introduction On the 4th of June 2015, the Italian Supreme Court of Cassation (hereinafter referred to as “ISC”) overruled a judgment of the Court of Appeal of Rome concerning a claim brought by 52 food distributors against Cargest Srl because of an abuse of dominant position by the defendant. (...)

The Italian Supreme Court opens the doors to standalone private actions (Cargest)
Bonelli Erede (Rome)
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Bonelli Erede (Rome)
In its decision of 6 June 2015 the Italian Supreme Court annulled the previous decision of the Court of Appeal of Rome , which had rejected the claim brought by a number of fruit and vegetable wholesalers (the “Wholesalers”) against Cargest - the company that manages the fruit and vegetable (...)

A US district court dismisses claims of conspiracy to protect a monopoly by "product hopping", citing risk to slow or halt pharmaceutical innovation (Mylan / Warner Chilcott)
BakerHostetler (Philadelphia)
Product Hopping and Antitrust: Mylan Court Dismisses Claims on Summary Judgment, Citing Need to Avoid Chilling Pharmaceutical Innovation* A recent summary judgment opinion from the Eastern District of Pennsylvania breaks new ground in the developing antitrust law on “product hopping” claims. (...)

A US District Judge dismisses an antitrust claim for lack of proof of both the conduct and the injury (Google)
DLA Piper Weiss-Tessbach (Vienna)
Two recent victories for Google in the United States* On 20 February 2015 a federal judge in California dismissed an antitrust lawsuit against Google alleging that it violated antitrust laws by requiring makers of Android tablets and smartphones to designate Google as the default search engine (...)

A US District Court reminds the need for an harmonious and supportable market definition to win an antitrust case (Live nation)
Constantine Cannon (Washington)
Federal Court Rings Down The Curtain On Baltimore-D.C. Rock Promoters’ Antitrust Case Against Live Nation* A long-running antitrust battle of the bands between a Baltimore-D.C. area regional concert promoter and venue operator and the concert colossus Live Nation got the hook in the U.S. (...)

The US District Court for the Eastern district of New York reminds that potential defendants in certain Section 1 monopoly cases should be prepared to address a plaintiff’s “direct evidence” of harm to competition and may not be able to solely rely on its relative market share as a defense (American Express)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Court Rules Against American Express Based on Both Direct and Indirect Evidence of Harm to Competition* On February 19, 2015, the District Court for the Eastern District of New York issued its ruling on liability in United States v. American Express. Following a seven-week trial, the Court (...)

The Chinese Supreme Court sets up the standard for antitrust private litigation with detailed analysis method in regard to market definition and dominance establishment (Qihoo / Tencent)
AnJie Law (Beijing)
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AnJie Law (Beijing)
When the Antitrust Encounter the Internet: The Legal Battle between Qihoo 360 and Tencent Finally Comes to the End* The outgoing year has witnessed the significantly increasing role of „Antitrust‟ and „Internet‟ played in China‟s economy. With the Supreme People‟s Court („SPC‟) ratified the original (...)

The Chinese Supreme Court elaborates detailed fundamental principles of anti-monopoly law, in particular in the context of abuse of dominance on the internet market, in its first anti-monopoly case (Qihoo / Tencent)
King & Wood Mallesons (Beijing)
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King & Wood Mallesons (Beijing)
The Supreme Court Goes Online with Anti-Monopoly Law Principles:A Review of Qihoo v.s. Tencent Abuse of Market Dominance Case* Introduction On 15 November 2011, Qihoo issued proceedings against Tencent in the Guangdong Higher Court, asserting that Tencent had abused its dominant position, (...)

The EU General Court holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Mircea & Partners (Bucharest)
Access to documents not to be found in the Commission’s possession I. Background The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the Commission (...)

The High Court of England rules on the relevance of commercial gain for establishing an abuse of dominance on the market for airport to city centre bus route (Arriva The Shires / London Luton Airport Operations)
Blackstone Chambers
Abuse of dominance: no commercial gain, no abuse?* Is it necessary for there to be some commercial benefit to be gained by a dominant undertaking from its conduct before that conduct can be condemned as abusive? No, says Mrs Justice Rose in Arriva the Shires Ltd v London Luton Airport (...)

The Italian Court awards to a local telecom operator damages in a follow-on case of a margin squeeze decision against the incumbent operator (Brennercom / Telecom Italia)
Studio Legale Scoccini E Associati
Introduction On the December 27 2013, the Enterprises Court of Milan awarded damages to Brennercom, a fixed-line telecom operator active in the north-east of Italy, in respect of a claim brought against Telecom Italia. This case arose as a follow-on action from a decision of the Italian (...)

The EU Commission consults on commitments to license on FRAND terms regarding use of standard essential patents (Samsung SEPs)
Garrigues (Brussels)
Samsung offers commitments to appease DG Comp* The most important (antitrust-related) news last week was the European Commission’s announcement that it will market test a commitment proposal submitted by Samsung regarding the enforcement of its SEPs (Standard Essential Patents) related to (...)

The EU Court of Justice maintains the validity of the Commission decision not to investigate the complaint due to the low likelihood of establishing a dominant position of printer manufacturers on ink cartridge aftermarket (EFIM/Commission)
University of Amsterdam
The EFIM-case: no dominant position of printer manufacturers on ink cartridge aftermarket* Ink in cartridges for printers is often called ‘black gold’, or qualified as the ‘most expensive liquid in the world’. Manufacturers of printers sell their ink cartridges at (relatively) high prices, whereas (...)

A US Court of Appeals affirms the order of dismissal as the allegation of a relevant market of black hot rolled coiled steel was insufficient as a matter of law failing to negate the likelihood of supply-side entry (Gulf States / Nucor)
Sheppard Mullin (Los Angeles)
Failure to Adequately Allege Lack of Supply Cross-Elasticity Dooms Attempted Monopolization Action to “Quick Look” Dismissal* GULF STATES REORGANIZATION GROUP, INC. V. NUCOR CORP. (11th Cir. July 15, 2013) No. 11-14983. In 1999, Gulf States Steel, Inc., a participant in a market described as (...)

The Competition Commission of India finds no prima facie case in a predatory pricing case concerning oil and gas exploration activities (HLS Asia v Schlumberger Asia Services and Oil and Natural Gas Corporation)
University of Delhi (New Delhi)
The Competition Commission of India (CCI) began enforcing India’s new Competition Act in May 2009. It recently decided a matter in which predatory pricing was the central allegation. Although the CCI found no prima facie case and closed the matter at the threshold, the decision raises some (...)

The UK Competition Appeal Tribunal awards damages in a follow-on claim arising from abuse of dominance on the market for transportation and partial treatment of water (Albion Water / Dŵr Cymru Cyfyngedig)
Blackstone Chambers
Albion v Dwr Cymru: Incompetence and counterfactuals* The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in (...)

The US Supreme Court reverses the decisions of the lower courts and emphasizes that any model supporting a plaintiff’s damages case must be consistent with its liability case (Comcast / Behrend)
Sheppard Mullin (Washington)
Comcast v. Behrend Sets a Higher Bar for Class Certification* On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of (...)

The Lithuanian Supreme Administrative Court declares that the Competition Council has to perform new evaluation of commitments since its decision lacked motives and was inconsistent (TEO / Viasat)
Law firm of Raimundas Moisejevas (Vilnius)
Background On 22 November 2011, the Lithuanian Competition Council passed resolution on termination of investigation proceedings concerning conformity of Viasat World Limited and Viasat AS actions to the Article 9 of the Competition law. The present article of the Competition law prohibited (...)

The Specialized Administrative Court of Kazakhstan fines two major regional cement producers for a tacit collusion (Semei Cement Plant / Bukhtarma cement company)
Center for Development and Protection of Competition Policy
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Ernst & Young (Astana)
The regional division of the Antimonopoly agency – the Antimonopoly inspection of the East Kazakhstan oblast (‘Inspection’) conducted an investigation over the main competitors in the regional cement market, "Semei Cement Plant" LLC (‘LLC’) and "Bukhtarma cement company" JSC (‘JSC’), whose main (...)

The Israeli Restrictive Trade Practices General Director declares certain entities "monopolies" in the supply of non-liquefied natural gas (Noble Energy Mediterranean, Delek Drilling and Avner Oil & Gas Exploration)
Eshel, Ashlagi, Rozent Law Offices (Tel Aviv)
Introduction On November 13, 2012, the Restrictive Trade Practices General Director (the “General Director”) declared a few entities engaged in the exploration, production and sale of natural gas - Noble Energy Mediterranean, Delek Drilling and Avner Oil & Gas Exploration (both of the Delek (...)

The EU General Court annuls the Commission decision for failing to substantiate the existence of an abuse of dominance on the market for cheap electricity (DEI)
University of Groningen
A Burning Desire to Clarify(?) the Law for Public Undertakings: The Judgment in Greek Lignite (Case T-169/08)* The General Court has finally handed down the judgment in the Greek Lignite (brown coal) case. This is a long-running case resulting from a complaint (dating from 2003) concerning the (...)

A US District Court grants motion for summary judgment on the grounds that the plaintiffs failed to establish the element of “dangerous probability” for an antitrust claim for attempted monopolization on the market for containerized waste hauling and disposal services (All Star Carts and Vehicles / BFI Canada Income Fund)
Sheppard Mullin (Los Angeles)
Summary Judgment Dooms Attempted Monopolization Claim in Small Container Trash Hauling Market* In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted (...)

The Lithuanian Supreme Administrative Court repeals decision of the Lithuanian Competition Council, which recognized that energy operator breached Article 9 of the Competition law by abuse of dominant position (UAB Vilniaus energija)
Law firm of Raimundas Moisejevas (Vilnius)
Background On 6 May 2010, the Lithuanian Competition Council passed resolution, which recognized that actions of UAB “Vilniaus energija” do not correspond to the Article 9 of the Competition law that prohibits abuse of dominant position. The Competition Council claimed that UAB “Vilniaus (...)

Advocate General Mazak issues his opinion recommending dismissing appeal against pharma company’s abuse of dominance (AstraZeneca)
Baker McKenzie (Brussels)
AstraZeneca v Commission, Advocate-General Mazak’s Opinion of 15 May 2012* On 15 May 2012, Advocate-General Mazák delivered his long awaited Opinion to the European Court of Justice in the long-running AstraZeneca litigation. Practitioners hoping for an opinion that tempered some of the more (...)

The Guangdong Higher People’s Court of China holds the first hearing for abuse of dominance in the market of online instant communications services (360 / QQ)
King & Wood Mallesons (Beijing)
360 v. QQ-Abuse of Dominance Action Tried at Guangdong Higher Court* On April 18, the Guangdong Higher People’s Court held the first court hearing for the abuse of dominance action filed by Qihoo (the operator of 360 safety software) against Tencent (the operator of QQ instant messaging (...)

A Chinese Intermediate Court dismisses antitrust claims for failing to prove abusive conduct in the car aftermarket (Dongfeng Nissan case)
Institute of American Studies
The Dongfeng Nissan Case and the Gaps of China’s Competition Law Regime in Tackling Vertical Restraints* The recent Dongfeng Nissan Case shed some interesting lights on the status of vertical restraints rules in China, three years after China’s Anti-Monopoly Law (AML) became effective in August (...)

The European Commission makes legally binding commitments by a national numbering agency to abolish fees for use of US international securities identification numbers (Standard & Poor’s)
University of South Australia
The Rick Perry Syndrome* “Oops“, the Commission did it again… On November 15, 2011, in the S&P case, the Commission again closed abuse of dominance proceedings with an Article 9 decision. As already explained, Article 9 decisions have become the conventional procedure in Article 102 TFEU (...)

A US district court, relying on ’common sense’, denies a motion to dismiss allegations of a ’price squeeze’ in the paper bags industry (WPK / Duro)
Womble Carlyle Sandridge & Rice (Washington D.C.)
California Court Relies on “Common Sense” in Rejecting Twombley Challenge* Perhaps there is life for conclusory antitrust claims after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). On May 24, the United States District Court for the Central District of California denied a motion to (...)

The EU Commission is called on to assess whether a company in the online search market has abused of its dominant position under Art. 102 TFEU (Microsoft, Google)
University of South Australia
Microsoft v. Google – Clash of the Titans* On Behalf of the Antitrust Community, A Big Thank You – Antitrust law professors should be grateful to Microsoft (hereafter, “MSFT”). As a repeat offender of the competition laws, MSFT has provided scholars with loads of research and educational material (...)

The Swedish Competition Authority welcomes the EU Court of Justice preliminary ruling on "margin squeeze" as a stand alone antitrust abuse in the telecom sector (TeliaSonera)
European Commission
Sweden: The Competition Authority welcomes ECJ Judgment on Competition in the Telecom Sector* The Swedish Competition Authority (the Authority) welcomes the Judgment of the European Court of Justice (ECJ) of 17 February 2011 in the case C-52/09, Konkurrensverket against TeliaSonera Sverige AB. (...)

The Brussels Court of First Instance dismisses the action brought by the national railway company for lack of proof (NMBS / SNCB, Electrabel)
Van Bael & Bellis (Brussels)
On 20 September 2010, the Brussels Court of First Instance dismissed the action brought by NMBS/SNCB, the national railway company, against Electrabel for lack of proof. Mere reliance upon a report published by the energy regulator was found inconclusive evidence to demonstrate an abuse (...)

The EU General Court confirms fine imposed by the European Commission for abuse of dominant position in the market for reverse-vending machines (RVM) used to collect used beverage containers focusing on exclusive agreements and loyalty-based rebates (Tomra)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On September 9, 2010, the General Court of the EU (the Court) issued its judgment in Tomra vs. Commission (Case T-155/06), dismissing an appeal brought by Tomra against a European Commission decision imposing a €24 million fine for abuse of its dominant position in Germany, Austria, Sweden, the (...)

The EU General Court upholds a Commission’s decision concerning an abuse of dominance in the market for machines for the collection of used beverage containers addressing the issues of loyalty rebates and exclusivity agreements (Tomra)
University of South Australia
Hungry for More?* Apologies for the long post, but I have several remarks to add to my former post under Tomra v. Commission: •Priority-setting – As most of you know, this judgment confirmed a Commission Decision of 2006, in which Tomra, a producer of reverse vending machines used for (...)

The US 1st District California Court of Appeal upholds a jury verdict finding that a claim of unfair competition based on below-cost sales of advertising did not require proof of the defendant’s ability to recoup losses by subsequent monopoly pricing (Bay Guardian Company / New Times Media)
Sheppard Mullin (Los Angeles)
A Step Back to Square One? California Court of Appeal Elevates UPA Protection of Competitors Over Protection of Competition in Newspaper Ad Dispute* On August 11, 2010, the California Court of Appeal for the First District upheld a jury verdict in favor of plaintiff Bay Guardian Company (...)

The Italian Supreme Administrative Court reforms a judgment of first instance and considers an airport managing company not responsible for abuse of dominant position under art. 102 TFEU in the market for centralized airport infrastructures (SEA - Airport tariffs)
University Luiss Guido Carli - GRIF (Rome)
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Economisti Associati
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University Luiss Guido Carli - GRIF (Rome)
In September 2009, the Regional Administrative Court of Latium (Tribunale Amministrativo Regionale del Lazio) upheld the appeal from AIR ONE S.p.A., an Italian airline now merged with Alitalia, against a decision of the Italian Competition Authority (ICA) concerning the alleged abuse of (...)

A Chinese intermediate People’s court dismisses antitrust claims for failing to prove abusive conduct in the termite prevention service market (HY/HT)
University of Melbourne
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China Competition Bulletin (Beijing)
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Institute of American Studies
Huzhou Yiting Termite Prevention Service Co., Ltd (HY) v Huzhou Termite Prevention Research Institute (HT) Pending in the Zhejiang Higher People’s Court* On 25 November 2009, HY filed a suit against HT in the Hangzhou Intermediate People’s Court, alleging that HT had abused its dominance in (...)

A Chinese Court issues second abuse of dominance’s decision under the new anti-monopoly law (Baidu,TRISC)
Jones Day (Beijing)
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Jones Day (Beijing)
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Winston & Strawn (New York)
On December 18, 2009, a Chinese court ruled in favor of Baidu, Inc. (“Baidu”), allegedly the largest Chinese search engine company, in a lawsuit filed by Tangshan Renren Information Service Company (“TRISC”), an online information platform. TRISC alleged that Baidu abused its dominant market (...)

The Latvian Supreme Court uppholds the Competition Council’s decision on abuse of dominance in the telecommunication sector (Lattelecom)
Competition Council of Latvia
Supreme Court Upholds the Decision on Abuse of Dominant Position by Telecommunication Company* With the decision of 5 May 2009 the Senator Collegium of the Department of Administrative Cases of the Senate of the Supreme Court has dismissed legal proceedings concerning the 17 July 2002 decision (...)

A US Court of Appeals sets aside FTC’s order holding that the Agency failed to prove antitrust violation in the computer memory industry (Rambus)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On April 22, 2008, the U.S. Court of Appeals for the District of Columbia Circuit held in Rambus Inc. v. FTC, No. 07-1086, that the FTC failed to prove that Rambus Inc. violated antitrust law when it participated in a trade organization’s setting of industry technology standards without (...)

A Macedonian Court quashes a NCA’s decision establishing an abuse of dominance of the incumbent electricity provider on the electricity market (Elektrostopanstvo)
University of Technology (Tallinn)
Summary The Macedonian Administrative Court quashed the NCA’s decision imposing financial penalties for abuse of dominant position committed by Elektrostopanstvo on the electricity market. The main reason for the annulment consisted in the NCA’s failure to include all requisite information, (...)

The European Court of First Instance, in upholding the Commission’s decision on abuse of dominant position of the PC operating systems, turns back the clock (Microsoft)
Linklaters (London)
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University of Cambridge
Overview In its 2004 decision, the Commission concluded that Microsoft had committed two types of abuse which where both related to the dominant position which it held through Microsoft Windows in the PC operating systems market: first, the Commission held that Microsoft had failed to supply (...)

The European Court of First Instance partially upholds the Commission’s decision concerning an abuse of a dominant position in the PC operating system (Microsoft)
European Commission - DG COMP
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FTI Consulting (Brussels)
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Belgian Competition Authority (Brussels)
"The judgment of the Court of First Instance in the Microsoft case"* I. The 2004 Decision On 24 March 2004, the Commission adopted a decision pursuant to Article 82 EC concluding that Microsoft had abused its dominant position in the PC operating system market by (i) refusing to provide (...)

A US Court of Appeals applies a cost-based test to attempted monopolization claim premised on multiproduct discounting (Cascade Health Solutions / PeaceHealth)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
The Ninth Circuit evaluated the antitrust implications of multiproduct or “bundled” discounts in Cascade Health Solutions v. PeaceHealth, CV-02-06032 (Sept. 4, 2007). In doing so, the Ninth Circuit rejected the controversial Third Circuit rule of LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003), (...)

A US Court of Appeals rules that bundled discounts will not support a claim under s. 2 of the Sherman Act unless the discounts are below an appropriate measure of costs (Cascade Health Solutions/PeaceHealth)
Winston & Strawn (New York)
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Haug Partners (New York)
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Winston & Strawn (New York)
On September 4, 2007 the United States Court of Appeals for the Ninth Circuit issued its much-anticipated decision in Cascade Health Solutions (fka McKenzie- Williamette Hospital) v. PeaceHealth, et al., No. 05-35627, 2007 WL 2473229 (9th Cir. Sept. 4, 2007). The court held that bundled pricing (...)

A US Court of Appeals affirms dismissal of conspiracy and monopolization in the elevator industry for failure to meet Twombly pleading standards (In re Elevator Antitrust Litigation)
Winston & Strawn (New York)
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Haug Partners (New York)
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Winston & Strawn (New York)
On September 4, 2007, the Second Circuit Court of Appeals affirmed the dismissal of all claims in In re Elevator Antitrust Litigation, No. 06-2138-cv, 2007 WL 2471805 (2d Cir. Sept. 4, 2007) (slip opinion available at http://www.ca2.uscourts.gov), finding that the complaint failed to satisfy (...)

The Lisbon Court of Commerce quashes the Competition Authority’s first ever abuse of dominant position infringement decision in the underground ducts’ telecom network access case, upheld on appeal (PT Comunicações)
European Court of Justice (Luxembourg)
I. The case, the PCA’s decision and the judgments After receiving complaints from telecom undertakings “TvTel Comunicações” and “Cabovisão”, the Portuguese Competition Authority (hereinafter “PCA”) launched an investigation in 2003 into the allegations that Portugal Telecom Comunicações (hereinafter (...)

The US Supreme Court rules that federal securities laws implicitly preclude application of antitrust law to regulated securities industry related claims (Credit Suisse Securities / Billing)
Dentons (Washington)
Credit Suisse v. Billing: The Limited Impact on Application of Antitrust Laws in Federally Regulated Industries Following the 2008 Financial Crisis and Beyond* In Credit Suisse v. Billing, the Supreme Court of the United States considered whether antitrust laws were implicitly precluded from (...)

The UK High Court of Justice rejects a claim of predatory behaviour on a local bus transport services market (Chester City Transport v. Arriva)
King’s College (London)
Introduction and Background to the Claim In Chester City Council and Chester City Transport Limited v. Arriva Plc, Arriva Cymru Limited and Arriva North West Limited [2007] EWHC 1373 (Ch), the High Court of Justice had to consider a claim brought by Chester City Council (‘the Council’) and (...)

The US Supreme Court recognizes a limited claim for predatory bidding (Weyerhaeuser)
Penn State University
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University of Florida
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.: The U.S. Supreme Court Recognizes a Limited Claim for Predatory Bidding* Monopsony is the negative image of monopoly. Narrowly defined, it is the structural condition in which a well-specified good or service has only one buyer. But just (...)

The US Supreme Court extends monopoly predatory pricing standards to monopsony predatory bidding practices (Weyerhaeuser)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On February 20, the U.S. Supreme Court issued a significant opinion in which it concluded that the test it had set forth previously to govern predatory pricing cases applies also to cases involving allegations of predatory bidding. See Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., (...)

The UK Court of Appeal overturns the first ever finding by the High Court of an abuse of dominance pursuant to Art. 82 EC (Attheraces/British Horseracing Board)
White & Case (London)
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Reed Smith (London)
Background A recent decision of the Court of Appeal has reversed the first ever High Court finding of an Article 82 infringement in litigation between private parties. Attheraces v British Horseracing Board was an appeal from the High Court decision of Justice Etherton. The Judge who had held (...)

The French Supreme Court lowers the standard of proof for anticompetitive practices and quashes the Paris Court of Appeal judgment in the Ténor case, regarding calls from landlines to mobile phones (ETNA / France Telecom-SFR)
Freshfields Bruckhaus Deringer (Paris)
Following a referral by an association of telecom operators disputing the pricing policy of integrated operators (i.e. offering both landline and mobile phone services), the French Competition Council had, in its decision of 14th October 2004, found against France Télécom and SFR and fined them (...)

The EU Commission renders a decision on collective dominance under the European consultation mechanism on electronic communications in a case related to the market for wholesale mobile access and call origination in Ireland (Vodafone / O2 / Meteor)
European Commission - DG EMPL
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"First collective dominance cases under the European consultation mechanism on electronic communications"* In the first semester of 2005, the Commission dealt with two collective dominance cases in the electronic communications sector. Both cases were notified to it under the so-called (...)

The EU Commission renders a decision on collective dominance under the European consultation mechanism on electronic communications in a case related to the market for broadcasting transmission services in the UK (Crown Castle)
European Commission - DG EMPL
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"First collective dominance cases under the European consultation mechanism on electronic communications"* In the first semester of 2005, the Commission dealt with two collective dominance cases in the electronic communications sector. Both cases were notified to it under the so-called (...)

The US Supreme Court introduces a new method for regulatory antitrust analysis (Trinko / Verizon)
K&L Gates (Pittsburgh)
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K&L Gates (Pittsburgh)
A New Method for Regulatory Antitrust Analysis? Verizon Communications v. Trinko* In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), the United States Supreme Court adopted a novel method for applying the antitrust laws in regulated markets and thereby (...)

The Queen’s Bench Division of the High Court of England & Wales gives important guidelines as to the standard of proof for claiming damages in competition cases (Arkin)
Reed Smith (London)
Arkin v. Borchard Lines Ltd., [2003] All E.R. (D) 173, [2003] EWHC 687 (Comm) (10 April 2003), is important as one of the first damages claims brought in a United Kingdom court for breach of Articles 81 and 82 of the Rome Treaty involving private enforcement of competition law. It was decided (...)

The US District of Columbia Circuit Court of Appeals remands a case due to the lower court’s provision of several incorrect jury instructions and failure to instruct on the “essential facilities” doctrine in a case affecting the market for major-league professional football (Hecht/Pro Football)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. District of Columbia Circuit Court of Appeals remanded a jury verdict in a case between a potential franchisor and the operator of the Washington Redskins football team because the lower court improperly instructed the jury on a number of issues. This Court determined that the lower (...)

Mergers

The COMESA Council of Ministers adopt amendments to their supranational merger control regime
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
The supranational merger control regime of the Common Market for Eastern and Southern Africa ("COMESA") has been fully operational since 14 January 2013. The COMESA merger control regime is largely governed by the COMESA Competition Regulations 2004 ("Regulations") and is enforced by the COMESA (...)

The Finnish Consumer and Competition Authority lifts the remedy conditions originally attached to a reported merger (TV 4 / C More Group)
Dittmar & Indrenius
Letting the Notifying Party Off the Hook* The Amendment of Remedy Conditions under Finnish Merger Control Law Post-Approval On February 6, 2015 the Finnish Consumer and Competition Authority (the ”FCCA”) published its approval of MTV Oy’s (“MTV”) application to lift the remedy conditions (...)

The Canadian Supreme Court clarifies the notion of "prevention" of competition and revitalizes efficiencies defence in a merger case (Tervita)
Stikeman Elliott (Ottawa)
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Stikeman Elliott (Toronto)
Supreme Court clarifies "prevention" and revitalizes efficiencies defence in Tervita merger case* Canada’s Supreme Court of Canada issued its much-anticipated decision in the case of Tervita Corp. v. Canada Commissioner of Competition yesterday, upholding the Federal Court of Appeal’s (and the (...)

The Canadian Supreme Court considers for the first time the analytical framework for prevention of competition cases and the statutory efficiency defence in a very small merger case (Tervita)
Borden Ladner Gervais (Toronto)
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Gowling WLG (Toronto)
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Gowling WLG (Toronto)
Tiny Merger Will Have Major Implications for Merger Review in Canada* On Jan. 22, 2015, the Supreme Court of Canada released the long anticipated decision in Tervita Corp. v. Canada (Commissioner of Competition) in which it considered, for the first time, the analytical framework for (...)

The Lithuanian Competition Council prohibits concentration in the markets for foreign language teaching material, school textbooks and retail trade of books (AL Holding / Humanitas)
Law firm of Raimundas Moisejevas (Vilnius)
Background On 16 May 2013, the Lithuanian Competition Council received request of UAB AL Holding to acquire up to 100 percent of the shares of UAB “Humanitas”. On 11 October 2013, the Lithuanian Competition Council passed resolution that procedure concerning evaluation of the request of UAB AL (...)

The Portuguese Competition, Regulation and Supervision Court annuls decision imposing a fine on a non-notified merger due to shortcomings related to rights of defence (ANF / Farminveste)
Abreu Advogados
Following the Portuguese Competition Authority (PCA) decision dated 28 December 2012 imposing a total EUR 149,278.79 fine on the National Pharmacy Association (Associação Nacional de Farmácias - ANF) and two of its subsidiaries, Farminveste 3 – Gestão de Participações, S.G.P.S., Lda. (Farminveste (...)

The Czech Supreme Administrative Court cancels the decision of the Regional Court which has refused a producer of lignite access to the file of a competitor in a merger control case (Litvínovská Uhelná)
Kinstellar (Prague)
Subject matter of the case On 3 August 2008, Litvínovská uhelná a.s. (“Litvínovská uhelná”), a producer of lignite and at that time a part of the Czech Coal Group (one of the major players in the Czech energy sector) filed a complaint to the Czech Office for Protection of Competition (the “Office”) (...)

The US District Court for the District of Columbia blocks a merger in the digital do-it-yourself tax preparation software industry providing insights on evidence to use on S. 7 challenge (H&R Block / TaxAct)
Skadden, Arps, Slate, Meagher & Flom (New York)
United States v. H&R Block: The DOJ Invokes Brown Shoe to Shed the Oracle Albatross* On November 10, 2011, the U.S. Department of Justice won its first fully litigated merger challenge since its 2004 defeat in United States v. Oracle Corp. In the interim, the Federal Trade Commission had (...)

The US District Court for the District of Columbia grants DoJ request to enjoin a merger between two digital do-it-yourself tax preparation software providers (H&R Block / TaxAct)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
This article has been nominated by the Business Steering Committee for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 31, 2011, the U.S. District Court for the District of Columbia is sued (...)

A US federal district court prohibits proposed combination of tax software makers as it violates S. 7 of the Clayton Act (H&R Block / TaxAct)
Wolters Kluwer (Riverwoods)
Proposed Combination of Tax Software Makers Violates Section 7 of the Clayton Act* The federal district court in Washington, D.C. yesterday released its Memorandum Opinion explaining its October 31 order enjoining H&R Block, Inc.’s proposed acquisition of 2SS Holdings, Inc.—the maker of (...)

The Chinese MOFCOM approves, subject to equity divestiture, a proposed acquisition in the electronic yarn clearers for automatic winders (Penelope / Savio)
Linklaters (Beijing)
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Linklaters (Shanghai)
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Linklaters (London)
On 31 October 2011, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) announced its eighth conditional clearance decision, approving the acquisition of Savio by Penelope subject to an equity divestiture. This is the third decision since the introduction of the AML to require (...)

The Chinese MOFCOM issues guidelines on the assessment of mergers under the anti-monopoly law
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
The Ministry of Commerce of the People’s Republic of China ("MOFCOM") has published its Interim Rules on the Assessment of the Effects of Concentrations of Undertakings on Competition ("Rules"), effective September 5, 2011. The Rules explain how MOFCOM will assess mergers or other (...)

The Chinese MOFCOM issues new interim provisions on the assessment of anticompetitive effects of mergers
Linklaters (Beijing)
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Linklaters (Shanghai)
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Linklaters (London)
On 2 September 2011, the PRC Ministry of Commerce (the “MOFCOM”) published on its website the Interim Provisions on Assessment of Competitive Impact of Concentrations of Business Operators (the “Interim Provisions”), which came into effect on 5 September 2011. The Interim Provisions elaborate on (...)

The Chinese MOFCOM finalizes new interim provisions on the assessment of anticompetitive effects of mergers
Allen & Overy (Beijing)
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Allen & Overy (Beijing)
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Allen & Overy (Shanghai)
This article has been selected for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 2 September 2011, China’s Ministry of Commerce (MOFCOM) published Provisional Rules on the Assessment of the (...)

A US Court of Appeals rejects the FTC’s attempt to identify a relevant product market in a pharmaceuticals related merger (Lundbeck)
Cleveland-Marshall School of Law
FTC v. Lundbeck: Why, God, Why?* What really has the world come to when a merger to monopoly followed by a 1300% price increase survives Section 7 challenge? That, sadly, seems to be the final result in Federal Trade Commission v. Lundbeck, which the Eighth Circuit affirmed last Friday. (...)

The US Court of Appeals for the 8th Circuit upholds a lower court’s finding that the FTC failed to show the relevant market in a case concerning the acquisition of two drugs treating a similar heart defect (Lundbeck)
Scharf Banks Marmor
What Is a Relevant Market Anyhow?* The Eight Circuit, in FTC v. Lundbeck, Inc., No. 10-3458/3459 (Aug. 19, 2011), upheld the district court’s finding that the FTC failed to show a relevant market, and thus was unable to challenge the acquisition of the drug NeoProfen. It already owned a drug (...)

The US FTC issues revised Hart-Scott-Rodino premerger notification rules
Linklaters (New York)
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Linklaters (Washington)
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Linklaters (New York)
The U.S. Federal Trade Commission (the “FTC”) has issued final rules (the “Rules”) to amend the requirements of premerger notifications required under the Hart-Scott-Rodino (“HSR”) Act. The Rules, issued July 7, 2011, are described by the FTC as being intended to streamline the HSR filing process. In (...)

The EU Commission clears in phase I a merger in the silicon sector examining possible coordination by the Chinese State of market behaviour of Chinese State-owned companies (China National Bluestar/Elkem)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
How to deal with Chinese State-owned Enterprises under the EUMR?* On 13 September, the Commission published its decision of 31 March 2011 in China National Bluestar/Elkem. After DSM/Sinochem/JV (decision of 10 May but published in June), this was the second published decision which dealt in (...)

A US Court of Appeals rejects antitrust lawsuit that challenged premerger planning and information exchanges between two health insurers (Omnicare/UnitedHealth)
Jones Day (Washington)
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Jones Day (Houston)
This article has been selected for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Last week the U.S. Court of Appeals for the Seventh Circuit rejected an antitrust lawsuit by institutional pharmacy (...)

The US FTC and the State of Minnesota appeal the district court’s decision on relevant market issue in a pharmaceutical merger case (Lundbeck)
Cleveland-Marshall School of Law
Some Reflections on the Lundbeck Appeal: Will Pharmaceuticals Get a Blanket Antitrust Immunity? And Is Quality Competition No Longer Protected by Antitrust?* A decision to watch for this year is the Eighth Circuit’s pending consideration of FTC v. Lundbeck, Inc., 2010-2 Trade Cases ¶77,160; 2010 (...)

A US District Court reaffirms importance of market definition in antitrust merger analysis (Golden Gate Pharmacy / Pfizer)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On April 16, 2010, Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California dismissed a complaint raising a private antitrust challenge to the merger of Pfizer, Inc. and Wyeth Pharmaceuticals, because she concluded that the complaint failed sufficiently to (...)

The UK OFT accepts the application of the "Failing Firm Defence" in retail stores acquisition (HMV, Zavvi)
Linklaters (Hong Kong)
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Cadwalader Wickersham & Taft (Brussels)
On 14 May 2009, the Office of Fair Trading (OFT), the UK’s competition agency, allowed an application of the « failing firm defence » under UK competition law, thereby clearing the HMV/Zavvi retail store acquisitions to proceed. The UK is one of the few jurisdictions to have explicitly recognised (...)

The Irish High Court overturns an NCA merger decision, finding the determination vitiated by material error in two respects, with particular focus on the significance of countervailing buyer power (Rye Investments)
Arthur Cox (Dublin)
On 19th March, 2009, the Irish High Court annulled the decision of the Irish Competition Authority (“ICA”) to block Kerry Group’s proposed acquisition of one its major competitors, Breeo Foods. Kerry’s acquisition of Breeo was notified to the ICA in March 2008. The proposal affected a number of (...)

The Chinese MOFCOM halts acquisition of a leading Chinese juice producer by a foreign buyer (Coca-Cola/Huiyuan)
Kastell
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Linklaters (Beijing)
On March 18 2009, the Anti-Monopoly Bureau of the Ministry of Commerce (MOFCOM) prohibited the acquisition by The Coca-Cola Company of the Huiyuan Juice Group. This is the first prohibition decision under the merger regime in Chinas new Anti-Monopoly Law which came into force on 1 August last (...)

The Chinese Antitrust Authority denies merger approval between US leading soft drinks and Chinese juice manufacturers (Coca Cola Company, Huiyuan)
Jones Day (Beijing)
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Jones Day (Beijing)
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Winston & Strawn (New York)
Today the Chinese Ministry of Commerce (MOFCOM) announced that it had denied antitrust approval of The Coca-Cola Company’s proposed acquisition of a famous Chinese Juice manufacturer, China Huiyuan Juice Group Limited («Huiyuan»). MOFCOM’s decision to block the Coke deal, after its conditional (...)

A US District Court grants FTC request for preliminary injunction to block a 3-2 transaction in the market for electronic systems used to estimate the cost of collision repairs (CCC Holdings / Aurora Equity Partners)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On March 18, 2009, Judge Collyer of the United States District Court for the District of Columbia released the public version of a significant opinion supporting her order granting the FTC a preliminary injunction in connection with the proposed $1.4 billion merger of CCC Information Systems (...)

The Macedonian Administrative Court confirms a merger prohibition decision in the market for retail distribution of pharmaceutical products (Zegin)
University of Technology (Tallinn)
On 1 June 2006 Zegin, leading distributor of the pharmaceuticals on the territory of Skopje municipality agreed with two other retail distributors of medicines - Alkaloid and Pharma Corp. to acquire joint control over City Pharmacy in Skopje , which owned a network of pharmacies in the (...)

The US FTC seeks disgorgement remedy in challenge against pharma company for illegally acquiring drugs used to treat premature babies with life-threatening heart condition (Ovation)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
Continuing a trend of increasing aggressiveness in antitrust enforcement, the Federal Trade Commission (FTC) is seeking disgorgement in a challenge to Ovation Pharmaceutical Inc.’s acquisition of the drug NeoProfen®, filed in the Minnesota District Court on Dec. 16, 2008. In the past, the FTC has (...)

The German Federal Court of Justice confirms the prohibition of an energy merger considering that the German market for primary sales of electricity is dominated by a duopoly (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
In a judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) upheld a previous decision of the Higher Regional Court of Düsseldorf (Higher Regional Court) which had itself confirmed a decision of the Federal Cartel Office (FCO) blocking E.ON’s plan to (...)

The UK Competition Appeal Tribunal (CAT) delivers its judgment dismissing challenges on material influence, SLC and remedies brought by a broadcasting company (British Sky Broadcasting Group)
Linklaters (London)
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Linklaters (London)
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Linklaters (London)
In a judgment handed down on 29 September, the Competition Appeal Tribunal (CAT), dismissed an appeal brought by British Sky Broadcasting Group plc (Sky) against a decision of the Competition Commission (CC). The CAT upheld part of an appeal against the same decision brought by Virgin Media (...)

The British Government is reported to have assured a bank that its aim to create the UK’s largest retail bank would not be subject to competition scrutiny (Lloyds/HBOS)
Compass Lexecon
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Compass Lexecon (London)
Summary On 18 September 2008 Lloyds TSB announced that it was to purchase HBOS, in a move that would create the UK’s largest retail bank . Although such a merger would normally cause serious competition concerns, the Government is reported to have assured Lloyds that the deal would not be (...)

A US Court of Appeals reverses ruling against preliminary injunction in the organic food sector lowering bar for the FTC to challenge a merger (Whole Foods / Wild Oats)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On July 29, 2008, the U.S. Court of Appeals for the D.C. Circuit reversed the denial of a preliminary injunction sought by the FTC against a merger of Whole Foods Market, Inc. and Wild Oats Markets, Inc., in a ruling that significantly lowers the bar for the FTC to obtain preliminary (...)

The EU Court of Justice annuls the Court of First Instance’s judgment relating to a joint venture in the music publishing sector (Sony / BMG)
European Commission - DG COMP
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European Commission - DG FISMA
"The Joint Venture SonyBMG: final ruling by the European Court of Justice"* By judgment of 10 July 2008 in Case C-413/06 P, Bertelsmann and Sony Corporation of America v Impala (the “Judgment”), the Court of Justice (the “Court”) annulled the ruling by the Court of First Instance (the “CFI”). The (...)

The US FTC dismisses merger challenge after parties publicly announced to abandon the proposed acquisition in the healthcare industry (Inova / PWHS)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
Inova Health System Foundation (Inova) and Prince William Health System, Inc. (PWHS) announced today that they will abandon their proposed merger. This announcement comes after the Federal Trade Commission sought to preliminarily enjoin the merger so that it could conduct a “Fast Track” (...)

The UK OFT publishes its full decision on the acquisition in the market of supply of DIY and home enhancement products through national DIY retail chains (Home Retail Group/Focus)
UK Competition Appeal Tribunal (London)
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Linklaters
On 31 December 2007, Home Retail Group (HRG) acquired 27 leasehold properties from Focus DIY. On 12 May 2008 the OFT released its full decision on the acquisition, requiring a single store (in Woking) to be divested.* In its press release the OFT said: "This case raises important wider issues, (...)

The Estonian Competition Authority raises doubt on its discretion to initiate in-depth merger investigations (Terve Pere Apteek/Saku Apteek)
Jesse & Kalaus Attorneys
On 8 January 2008 the Director General of the Estonian Competition Authority (“ECA”) adopted a decision on the initiation of supplementary proceedings (so-called in-depth investigation) with respect to a concentration whereby Terve Pere Apteek OÜ (“TPA”) would acquire control over OÜ Saku Apteek (...)

The US DoJ announces reforms to merger review process
Linklaters (New York)
U.S. Department of Justice Antitrust Division Reforms to Merger Review Process In-depth merger review in the U.S. pursuant to a "Second Request" issued by one of the antitrust agencies can be an enormously burdensome proposition that routinely costs merging parties millions of dollars and (...)

The Belgian Competition Council rules on the extent of veto rights necessary and sufficient for a minority shareholder to exert joint control over a JV within the meaning of merger control (Belgacom - Vodafone Belgium - Belgacom Mobile)
Loyens & Loeff (Bruxelles)
In its Belgacom - Vodafone Belgium - Belgacom Mobile merger decision, the Belgian Competition Council cleared in phase I the increase of Belgacom’s stake in Belgacom Mobile from 75% to 100%, through the acquisition of Vodafone Belgium’s 25% stake. The decision is interesting for two reasons. It (...)

The US FTC simplifies the process of in-depth merger reviews for foreign and domestic companies
White & Case (Washington)
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White & Case (Washington)
Marking an important reform to US antitrust policy, regulators at the Federal Trade Commission (‘FTC’) have announced changes meant to simplify the process of in-depth merger reviews for foreign and domestic companies. In February, the FTC, the agency that shares antitrust oversight of mergers (...)

A Dutch Court annuls a Dutch Competition Authority’s decision that conditionally cleared a merger between electricity companies for not having sufficiently demonstrated that the merger would lead to the creation or strengthening of a dominant position (Nuon/Reliant)
RBB Economics (Brussels)
On 31 May 2005, the Court of Rotterdam in the Netherlands annulled a decision by the Nederlandse Mededingingsautoriteit (NMa), the Dutch competition authority, concerning the proposed merger between electricity companies Nuon and Reliant . After a detailed inquiry, the NMa had cleared the (...)

The European Court of Justice dismisses the Commission’s appeal in a case concerning a merger in the packaging industry addressing the issues of conglomerate and vertical mergers (Tetra Laval/Sidel)
Sullivan & Cromwell (Brussels)
"Conglomerate and vertical mergers in the light of the Tetra Judgement"* Speech given at the International Forum on EC Competition Law organised by the Studienvereinigung Kartellrecht, Brussels 08/04/2005. The author would like to thank Michael König and Guillaume Loriot for their valuable (...)

The European Court of First Instance annuls the Commission’s decision declaring as incompatible with the common market a merger between Swiss-based packaging company mainly active in carton packaging, with a French packaging company mainly active in plastic PET packaging equipment (Tetra Laval/Sidel)
European Commission - DG ECFIN
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European Commission - DG COMP
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European Commission - DG GROW
"Merger Control: Main developments between 1st September 2002 and 31st December 2002"* On 25 October 2002, the Court of First Instance (CFI) delivered its ruling in case T-5/02, Tetra Laval v Commission, and annulled the Commission’s Decision of 30 October 2001 declaring as incompatible with (...)

State Aids

The EU General Court states that, despite having a margin of discretion, a prudent private investor always carries out an assessment of the potential profitability of the investment before it commits any money (SACE and Sace BT)
College of Europe (Bruges)
Application of the MEIP to Transactions between Parent and Subsidiary Companies* The Market Economy Investor Principle also applies to transactions between related companies. A private investor enjoys a margin of discretion in deciding in favour or against an investment. However, despite that (...)

The EU General Court reminds Member States that individual awards of de minimis aid must remain below the relevant threshold as well as the sum of all individual awards in any three-year period (Italy)
College of Europe (Bruges)
The Use and Abuse of De Minimis Aid & State Resources* Individual awards of de minimis aid must remain below the relevant threshold as well as the sum of all individual awards in any three-year period. Introduction This article reviews a case that, among other things, deal with the use (...)

The General Court of the EU holds that a tax measure that applies to certain transactions is not selective if it does not preclude any company or type of asset (Netherlands Maritime Technology Association)
College of Europe (Bruges)
Tax Measures with Specific Objectives Can still Be General* A tax measure that applies to certain transactions is not selective if it does not preclude any company or type of asset. Conditions for the application of a tax measure may be justified by the logic of the tax system. The Commission (...)

The EU General Court holds that tax measures are selective when they constitute an exception or deviation from the normal tax system and that this exception or deviation is limited only to certain undertakings (Banco Santander)
College of Europe (Bruges)
A Surprising Interpretation of the Concept of Selectivity* Tax measures are selective when they constitute an exception or deviation from the normal or common system of taxation. In addition, the exception must be open only to a pre-defined category of undertakings. Introduction Often, the (...)

The European Court of Justice upholds the General Court’s decision addressing the issue of the admissibility of action in state aid cases under the Plaumann test (Comitato Venezia vuole vivere)
European Commission - Legal Service
Death in Venice: The end of a Commission’s locus standi theory in State aid cases?* Following my previous post, I would like to briefly refer to another interesting battlefield within the State aid area: the locus standi of the beneficiaries of aid schemes (think, for instance, of tax (...)

The ECJ Advocate General Trstenjak issues his opinion on the burden of proof in relation to recovery illegal State aid decisions (MTU Friedrichshafen)
Van Bael & Bellis (Brussels)
In an opinion handed down on 19 February 2009, Advocate General Trstenjak proposes that the Commission’s appeal against a judgment of the Court of First Instance (CFI) which annulled a Commission decision ordering the recovery of illegal aid should be dismissed. The Advocate General considers, (...)

A Swedish Court applies the market economy investor principle in a State aid case (Thomas Svensson / City of Stockholm)
Cederquist
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Swedavia AB
Background In November 2005, Thomas Svensson (“Svensson”) appealed a decision by the City Council of Stockholm (the “City”) to the Stockholm County Administrative Court claiming that the decision by the City to give green light to four Stockholm city-controlled companies to invest in broadband (...)

A Swedish Court rules on alleged illegal State aid from the City of Stockholm to promote local broadband infrastructure (Thomas Svensson)
Swedavia AB
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Hudson Advisors
Introduction There are no specific rules with regard to state aid in Sweden and the number of cases brought before a Swedish court are few. This, of course, causes a certain amount of unpredictability and uncertainty as regards the application of the EC state aid rules in the national legal (...)

The French Civil Supreme Court applies the ECJ Boiron State aid case law on burden of proof and annuls the judgment of the Versailles Court of Appeal dismissing the application by a pharmaceutical producer (Glaxosmithkline)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background This case is one in a series of cases against pharmaceutical producers and wholesale distributors concerning a provision of the French Code de la santé publique (Public Health Code). The relevant provision obliges pharmaceutical wholesalers to stock enough medical products to (...)

The European Court of Justice rules that pharmaceutical laboratories liable to a tax on direct sales of medicines are entitled to claim the reimbursement of the tax where the exemption of wholesale distributors constitute an illegal State aid (Boiron)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
Opinion of Advocate General Antonio Tizzano, 30 March 2006, Case C-526/04, Laboratoires Boiron SA v. Agence centrale des organismes de sécurité sociale (ACOSS) ECJ, 7 September 2006, Laboratoires Boiron, Case C-526/04. In a preliminary ruling requested by the French Civil Supreme Court in the (...)

A French Court of Appeal applies the "Boiron" case law relating to the burden of proof and dismisses a claim by a pharmaceutical producer on the ground that it failed to show the existence of an advantage obtained from the exemption enjoyed by the wholesale distributors as set by the national regulation (Laboratoires Bristol Myers Squibb)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background This case is one of a series of cases against pharmaceutical producers and wholesale distributors concerning a provision of the French Code de la santé publique (Public Health Code). This provision obliges pharmaceutical wholesaler to keep a permanent stock of medicinal (...)

The French Civil Supreme Court requested a preliminary ruling from the ECJ with regards to the implementation of the Ferring case law : Advocate General Tizzano supports the reimbursement of the tax on direct sales paid by French pharmaceutical laboratories (Boiron/ACOSS)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
Background Law n° 97-1164, of 19 December 1997, on social security funding for 1998 set up a special 2.5 % tax payable only by pharmaceutical laboratories on sales of medicines made directly to pharmacies. Proceeds from the tax were aimed at financing the social security system. However, (...)

The EU Court of First Instance annuls the Commission decision rejecting a complaint concerning an alleged State aid in favor of a subsidiary of the French postal services incumbent (Sytraval)
European Commission - DG COMP
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European Commission - DG COMP
"SYTRAVAL"* In its judgment of 28 September 1995 in case T-95/94 «SYTRAVAL« v. Commission the Court of First Instance (CFI) annulled the Commission’s decision of 31 December 1993 rejecting a complaint in respect of alleged state aid in favour of «Sécuripost«, a subsidairy of the state-owned French (...)

Procedures

Applying for leniency before the EC Commission: Lateral effects in foreign and national jurisdictions (French)
Jones Day (Brussels)
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Jones Day (Brussels)
NB: Altough this article does not concern a specific EU member State, the editor has agreed to publish it in this e-Bulletin taking into account its strong interest for the implementation of the leniency programs in the EU (see on this subject, the review Concurrences, n° 3-2005, pp. 12-27) (...)

The Spanish government implements the EU antitrust damages directive
Callol, Coca & Asociados (Madrid)
The government has issued an urgent Royal Decree-Law 9/2017 of 26 May (RDL) implementing Directive 2014/104/UE, of the European Parliament and the Council, of 26 November 2014 (Directive) into Spanish law. A Royal Decree-law is an instrument used by the government to legislate on matters that (...)

The EU General Court relies on secretly-recorded telephone conversations obtained in the context of unannounced inspections (North Sea Shrimps)
Van Bael & Bellis (Brussels)
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which (...)

The US Court of Appeals for the Third Circuit potentially widens the opening for additional classes of plaintiffs to assert claims for antitrust injury (Hanover 3201 Realty / Village Supermarkets)
Patterson Belknap Webb & Tyler
,
Patterson Belknap Webb & Tyler
Third Circuit Provides Clarity to “Inextricably Intertwined” Basis of Antitrust Injury in Partially Reinstating Claims Against ShopRite* On November 12, 2015, the Third Circuit Court of Appeals issued an opinion partially reversing the dismissal of the plaintiff’s claims in Hanover 3201 Realty, (...)

The Indian Competition Appellate Tribunal orders to Competition Commission of India to follow due process by ensuring neutrality and fairness in adjudication and raising the bar for standard of proof (Board of Control for Cricket in India / CCI)
Lakshmikumaran & Sridharan (New Delhi)
,
Lakshmikumaran & Sridharan (New Delhi)
Introduction The role of procedural justice and it’s value in shaping antitrust jurisprudence in India has never felt stronger than now. Due process has evolved as the most contemporary buzzword in the story of antitrust enforcement in India. Many of notable orders passed by the Competition (...)

The Ontario Superior Court holds that presumptions that by possessing documents, persons and firms are deemed to know their contents are unconstitutionnal in a criminal context (Durward)
McMillan (Toronto)
,
McMillan (Toronto)
Canadian Cartel News – Volume 5 – One Place Where Possession is not Nine Tenths of the Law* Section 69(2) of the Competition Act provides that, by possessing documents, persons and firms are deemed to know their contents and to have done what the documents say was done. Particularly in the era (...)

The EU Court of Justice conditionates the access upon proof of the utter dependence on disclosure of the documents contained by the file (EnBW)
Mircea & Partners (Bucharest)
Access to information as a procedural right of a cartel victim as recognized by EU law* The judgement in Commission v EnBW (C-365/12, 27 February 2014) has already awakened a lot of interest. The facts are very simple. EnBW, an energy-distribution company requires access to the cartel file (...)

The EU Court of Justice consolidates view on effective remedy for excessive length of proceedings before the General Court in competition cases (Groupe Gascogne)
Clifford Chance (Athènes)
In the Groupe Gascogne judgment delivered on 26 November 2013, the Court of Justice consolidates its conception on issues of effective judicial protection in competition law adjudication. The case originated in an action for annulment against the General Court (GC) judgment T-72/06 Groupe (...)

The England and Wales Court of Appeal rules that a cartelist cannot avoid the jurisdiction of a national court on the basis that the victim of the cartel had purchased the relevant product or service via a subsidiary or other third party (Deutsche Bahn / Morgan Advanced Materials)
Blackstone Chambers
The Court of Appeal on Cartels and Conflicts* The Court of Appeal handed down two important decisions last week on the application of conflict of law principles to cartel follow-on damages claims: Deutsche Bahn AG & Ors v Morgan Advanced Materials plc & Ors [2013] EWCA Civ 1484 and (...)

The Supreme Court of Canada establishes that specific authorisation is needed for computer searches in Canada, raising questions on the same matter in EU law (R v Vu)
Canadian International Joint Commission
Introduction The Supreme Court of Canada (“court”) ruled on November 7, 2013 in R v Vu (“Vu”) that specific warrant authorisation is needed to execute searches of computers and mobile phones . While the judgment concerned alleged offences in relation to the production and possession of (...)

The Canadian Supreme Court allows indirect purchasers to sue for damages caused by a price fixing cartel (Infineon, Pro-Sys, Sun-Rype)
Affleck Greene McMurtry
Class action business as usual after SCC decisions* It’s business as usual for class actions after Canada’s Supreme Court issued a trilogy of decisions holding that so-called indirect purchasers can sue for damages caused by price fixing, and that whether indirect purchasers suffered harm can be (...)

The Canadian Supreme Court rules on the matter of standing to sue for damages held by indirect purchasers in class action proceedings (Sun-Rype Products / Archer Daniels Midland)
Steve Szentesi Law Corporation
New C.D. Howe Institute Report on Indirect Purchaser Class Actions Before Supreme Court Decision – Consensus? Open the Door* Canada’s Supreme Court is expected to release a long awaited indirect purchaser competition class action decision on 31 October 2013. This case, and the tortuous (and (...)

The Canadian Supreme Court rules on the matter of standing to sue for damages held by indirect purchasers in class action proceedings (Infineon Technologies / Option Consommateurs)
Steve Szentesi Law Corporation
New C.D. Howe Institute Report on Indirect Purchaser Class Actions Before Supreme Court Decision – Consensus? Open the Door* Canada’s Supreme Court is expected to release a long awaited indirect purchaser competition class action decision on 31 October 2013. This case, and the tortuous (and (...)

The Canadian Supreme Court rules on the matter of standing to sue for damages held by indirect purchasers in class action proceedings (Pro-Sys Consultants / Microsoft)
Steve Szentesi Law Corporation
New C.D. Howe Institute Report on Indirect Purchaser Class Actions Before Supreme Court Decision – Consensus? Open the Door* Canada’s Supreme Court is expected to release a long awaited indirect purchaser competition class action decision on 31 October 2013. This case, and the tortuous (and (...)

The Court of Appeal of England and Wales rules that the making of an order for further information against a French litigant is in the English Court’s discretion, and is not precluded by French Law No. 68-678 or the Council Regulation No 1206/2001 (Secretary of State for Health / Servier Laboratories)
Blackstone Chambers
Curtains for the French Blocking Statute?* Never the most celebrated actor on the stage of English litigation, the French Blocking Statute nonetheless has its fans, particularly among competition lawyers. The recent decision of the Court of Appeal in Secretary of State for Health v Servier (...)

The Court of Appeal of England and Wales rules that the making of a disclosure order against a French litigant is in the English Court’s discretion, and is not precluded by French Law No. 68-678 or the Council Regulation No 1206/2001 (National Grid Electricity Transmission / ABB)
Blackstone Chambers
Curtains for the French Blocking Statute?* Never the most celebrated actor on the stage of English litigation, the French Blocking Statute nonetheless has its fans, particularly among competition lawyers. The recent decision of the Court of Appeal in Secretary of State for Health v Servier (...)

The UK High Court dismisses defendants’s stay application in long term interchange fee litigation (MasterCard)
The University of Manchester
On 4 May 2013, Mr Justice Field handed in a judgment in WM Morrison Supermarkets, dismissing an application by a number of the defendants within the MasterCard group for an immediate stay of the proceedings until a related appeal which is currently pending before the Court of Justice of the (...)

ECJ Advocate General Cruz Villalón deals in his opinion with the exceptions to the right of access to public documents implying that it cannot be excluded that the commercial interests of the leniency applicants may be damaged by disclosure (EnBW)
University of Bristol - Law School
AG Cruz Villalon on access to leniency applications: A stringent test. Really? (C-365/12)* In his Opinion of 3 October 2013 in case C-365/12 EnBW Energie, Advocate General Cruz Villalon has proposed a holistic interpretation of the regulatory schemes relating to access to documents of the (...)

The US District Court for Western District highlights the unique damages theory, which requires plaintiffs to “show that the method of calculating damages measures ‘only those damages attributable to that theory’ of injury asserted by the plaintiffs (Barfield/Sho-Me Power)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Missouri landowners brought a class action asserting that electric companies that had easements over their properties for the transmission of electricity had exceeded the scope of their easements, by also transmitting fiber optic communications through the properties in addition to electricity. (...)

The U.S. Commissioner Wright offers proposed policy statement to guide the FTC’s section 5 unfair methods of competition enforcement
Techfreedom
,
International Center for Law & Economics (Portland)
Section 5 of the FTC Act gives the Commission authority to challenge “unfair methods of competition” (UMC). In June 2013, Commissioner Joshua Wright of the FTC released a proposed policy statement on the Commission’s UMC authority. His statement is intended to create guidance for enforcement (...)

The European Commission adopts a package of measures to facilitate competition law private actions in the EU
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
,
Herbert Smith Freehills (London)
1. Introduction and overview The European Commission (the "Commission") on 11 June 2013 adopted a package of measures aimed at facilitating competition law private actions in the EU. The package consists of: A proposal for a Directive on competition law private damages actions in the EU (...)

The US District Court for the Northern District of California certifies class action underlying that the predominance element “does not require a plaintiff to prove that each element of her claim is susceptible to class wide proof” (Diamond Foods Securities Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Shareholders of a nut processing, marketing and distributing company brought a class action under the federal securities laws, asserting that the company had maintained artificially high share prices by understating the cost of walnuts. Defendants argued that the plaintiff had failed to (...)

The Liaoning State Administration for Industry and Commerce issues provisions on the procedures for transferring evidentiary leads in anti-monopoly cases
University of Melbourne
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
On 3 May 2013, the Liaoning AIC issued the Provisions on the Procedures for Transferring Evidentiary Leads in Anti-Monopoly Cases. Under the AML, the SAIC is responsible for non-price related aspects of monopoly agreements and abuse of dominance conduct under the AML. The provisions apply to (...)

The US Supreme Court confirms that courts must conduct a rigorous analysis to determine whether antitrust class action plaintiffs meet the requirements for class certification (Comcast)
Jones Day (Los Angeles)
,
Jones Day (Washington)
,
Jones Day (Chicago)
The U.S. Supreme Court has reaffirmed that courts must conduct a "rigorous analysis" to determine whether antitrust class action plaintiffs meet the requirements for class certification, even when that requires inquiry into the merits of the underlying claims, and individual issues of damages (...)

The UK Court of Appeal clarifies the rules regarding “on the merit” appeals and underlines in red the “insuperable task” that parties challenging competition authority decisions must overcome (Everything Everywhere)
The University of Manchester
Everything Everywhere v Competition Commission was an appeal brought by the UK’s mobile telephone operator, Everything Everywhere Ltd (the “Appellant”), following the Competition Appeal Tribunal’s (the “Tribunal”) ruling in May 2012. The Court of Appeal (the “Court”) dismissed the appeal in favour of (...)

Advocate General Jääskinen of the ECJ puts forward that an absolute level of protection should be afforded by legislative means to the leniency applicants (Donau Chemie)
University of Bristol - Law School
Why is #competition law so special? Or how #leniency will kill private #damages actions (AG C-536/11)* In his Opinion of 7 February 2013 in case C-536/11 Donau Chemie and Others, Advocate General Jääskinen has developed a line of reasoning that goes well beyond the issue at hand (whether access (...)

The UK Government announces plans to introduce an opt-out class action regime in its consultation paper on options for reforming the private enforcement system (DBIS)
Blackstone Chambers
Collective Actions: loss in complex cases* The big news from last week’s UK announcement on reforming private competition enforcement is that the government plans to introduce opt-out class actions for competition claims. The proposals incorporate various “safeguards” designed to ensure that the (...)

A US Court of Appeals applies “consumer-or-competitor” rule to deny antitrust standing to foreign manufacturer of drug marketed in US by licensee (Ethypharm/Abbott)
Wolters Kluwer (Riverwoods)
Third Circuit Holds the Line on Antitrust Standing* In order to assert an antitrust injury, a plaintiff needs to be a consumer or a competitor in the restrained market, the U.S. Court of Appeals in Philadelphia ruled on January 23, 2013. If a company makes the choice not to compete, then it (...)

The England and Wales High Court refuses to strike out the conspiracy claim relying upon a cartel infringement on the market for copper plumbing tubes (WH Newson / IMI)
Blackstone Chambers
Conspiracy in the CAT: the scope of section 47A* What kinds of “follow-on” claims may be brought in the CAT? ‘[A]ny claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil (...)

The EU Court of Justice entirely rejects an appeal by German energy company for failing to substantiate the unduly reversed burden of proof and the allegedly incorrect assessment of the fines imposed for breaching a seal during a EU dawn raid (E.ON)
Mircea & Partners (Bucharest)
I. Introduction Breaching of a seal constitutes a serious violation of the Commission’s investigative powers in the competition field for which fines not exceeding 1 % of the undertaking’s turnover may be imposed. On 15 April 2008, E.ON Energie brought an action for annulment against a (...)

US Eastern District Court of New York approves class settlement in a price-fixing lawsuit brought against Vitamin C manufacturers (Vitamin C Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In determining whether to finally approve a class settlement reached with one defendant, the court considered the objections of several members of the proposed indirect purchaser settlement class regarding class counsel’s decision to forego a monetary distribution to the class and instead make a (...)

The US District Court for the Eastern District of Pennsylvania certifies a class in a price-fixing conspiracy case against two leading blood reagent producers (Blood Reagents Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
The plaintiffs, who alleged a price-fixing conspiracy between two leading blood reagent producers, moved for class certification. The court began by noting its duty to perform a rigorous analysis and to find by a preponderance of the evidence that each requirement of Rule 23 had been satisfied (...)

The US Second Circuit reversed grant of summary judgment on horizontal price-fixing claim (Publication Paper Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this case, the Second Circuit overruled a district court order granting summary judgment to a company accused of horizontal price-fixing. The plaintiffs presented direct evidence of conspiracy in the form of testimony from one of the conspirators who testified that he had reached an (...)

The US Second Circuit Second Circuit perforates Matsushita standards in reviewing price-fixing conduct by commercial papers manufactures (Publication Paper Antitrust Litigation)
Hausfeld (New york)
Seizing upon the "opportunity to clarify the application of the standards established" more than a quarter-century ago in Matsushita Electric Industrial Co. v. Zenith Radio Corp. for determining the existence of a jury question as to collusive behavior, the Second Circuit reversed a summary (...)

The US Court of Appeals for the Second Circuit overturnes the district court’s grant of summary judgment holding that the Matsushita standard does not apply in the presence of unambiguous price-fixing evidence (Publication Paper Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
The Second Circuit was asked to determine, among other things, whether there was enough evidence for a jury to find that the alleged agreement among competitors to raise prices actually caused the price increases that subsequently occurred. 690 F.3d at 65-66. While the Court conceded that it (...)

The Chinese Supreme Court issues its first judicial interpretations on anti-monopoly law suits
Pillsbury Winthrop Shaw Pittman (Shanghai)
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Pillsbury Winthrop Shaw Pittman (Beijing)
On May 3, 2012, the Supreme People’s Court of China finalized and issued the Regulations on Several Issues Concerning Application of Law in the Trial of Civil Cases Arising from Monopolistic Conducts (the “New Regulations”). These Regulations are China’s first judicial interpretation of (...)

The UK Government publishes a consultation on private actions in competition law proposing a rebuttable presumption of 20% price rise for damages against proven cartels
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. A Rebuttable Presumption of 20% Price Rise for Damages against Proven Cartels?* The UK Government yesterday published a consultation on private actions in competition law. It includes a suggestion that there should be a rebuttable (...)

The Hungarian Supreme Court upholds second instance judgment in the Budapest road construction cartel case and rules on the admissibility of evidence and the applicability of the ECHR to cartel proceedings (Betonút)
lakatos, koves and partners
On 6 February 2012 the Hungarian Supreme Court adopted a judgment in which the decision of the Hungarian Competition Office (“HCO”) and the earlier judgments of the Metropolitan Court and the Metropolitan Court of Appeal in a cartel matter relating to road construction works in Budapest were (...)

The US Seventh Circuit clarifies the expert testimony standards in connection with class certification (Mesner/Northshore Univ. Health)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this opinion, addressed above with respect to the class certification element of predominance, the Seventh Circuit also clarified the standards trial courts should use in evaluating expert testimony submitted in connection with class certification. The plaintiffs filed a motion seeking to (...)

The US Seventh Circuit clarifies the standards trial courts should use in evaluating expert testimony submitted in connection with class certification (Mesner/Northshore Univ. Health)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this opinion overturning the district court’s denial of class certification, the Seventh Circuit clarified the standards trial courts should use in evaluating expert testimony submitted in connection with class certification. The plaintiffs filed a motion seeking to exclude the defendant’s (...)

A US District Court denies defendants’ motion to dismiss regarding indirect purchaser claims based on foreign sales (TFT-LCD Antitrust Litigation)
Jones Day (Cleveland)
,
Jones Day (Chicago)
,
Jones Day (Chicago)
This article has been nominated by readers for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Recent decisions by the Third Circuit and the Northern District of California make it easier for (...)

A US Court of Appeals holds that the Foreign Trade Antitrust Improvements Act imposes a substantive merits limitation rather than a jurisdictional bar (Animal Science Products/China Minmetals)
Jones Day (Cleveland)
,
Jones Day (Chicago)
,
Jones Day (Chicago)
This article has been nominated by readers for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Recent decisions by the Third Circuit and the Northern District of California make it easier for (...)

The Tokyo District Court awards damages to the Japanese State in a bid-rigging case concerning the supply of jet fuel (Kosumo Sekiyu)
European Commission - DG COMP
I. Introduction In a judgment of 27 June 2011, the Tokyo District Court ordered nine oil companies to pay a total of 8.4 billion yen (104 million dollars at the time) to the Japanese State in restitution. The oil companies had violated the Japanese Antimonopoly Act by engaging in bid-rigging (...)

The UK OFT publishes guidance to help company directors understand their responsibilities under competition law
Linklaters (London)
,
Linklaters (London)
,
UK Competition Appeal Tribunal (London)
On 27 June 2011, the OFT published guidance on how it will assess the extent of an individual director’s responsibility for infringements of competition law. Where a company has breached competition law, the OFT can apply to court seeking a competition disqualification order (“CDO”) against an (...)

The UK OFT issues revised guidance on how businesses can achieve compliance with competition law
Linklaters (London)
,
Linklaters (London)
,
UK Competition Appeal Tribunal (London)
On 27 June 2011, the OFT published guidance on how it will assess the extent of an individual director’s responsibility for infringements of competition law. Where a company has breached competition law, the OFT can apply to court seeking a competition disqualification order (“CDO”) against an (...)

The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores/Dukes)
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (Washington)
This article has been selected for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision (...)

The French Criminal Supreme Court takes side in favour of the admissibility of the appeal by the Rapporteur général of the Competition Authority in a case concerning emails seizure (Orange)
Linklaters (Paris)
House searches carried out by the French competition authority (“Autorité de la concurrence”), a shared prerogative since 2009 with the Ministry of Finance & Economy (“DGCCRF”), are in principle governed by the Code of Criminal procedure. Furthermore, it has been held by the Supreme Court in (...)

The China’s Supreme Court issues rules on Private Actions under the Anti-Monopoly law
Linklaters (Beijing)
,
Linklaters (Shanghai)
,
Linklaters (London)
On 25 April 2011, the Supreme People’s Court of China (the “SPC”) published on its website a draft of the long-awaited Provisions by the Supreme People’s Court on the Issues Regarding the Application of Law in Handling Anti-monopoly Civil Litigation Cases (the “Provisions”) for public consultation. (...)

The Chinese Supreme People’s Court publishes revised rules on civil causes of action
Jones Day (Beijing)
,
Gibson Dunn (Hong Kong)
,
Jones Day (Beijing)
The Chinese Supreme People’s Court ("SPC") has made substantial progress in recent months writing rules for private enforcement of China’s 2008 Anti-Monopoly Law ("AML"). On March 20, 2011, the SPC published revised Rules on Civil Causes of Action, which define which courts are competent to hear (...)

The French Criminal Supreme Court rules that illegally obtained evidences cannot be used before the Competition Authority (Phillips and Sony)
Université Aix-Marseille
I. The Issues at Hand In France, the competition authority (Autorité de la concurrence that used to be known as the Conseil de la concurrence) is in charge of ruling cases of anticompetitive practices. Even though it is not technically a court, one can appeal its decisions before the Appeal (...)

The European General Court upholds the European Commission’s 38 M € fine on energy operator for the breach of a seal during an inspection (E.ON)
European Commission
* Article published in ECN Brief 01/2011. The original title of this article appears below the e-Competitions title. Please note that the ECN is not the actual "author" of this case summary, but the mere source. As mentioned by the ECN : "The information provided by the ECN Brief is for (...)

The Paris Court of Appeals defines and applies a demanding standard of proof for justification of dawn raids targeting press groups (Amaury)
Jones Day (Paris)
Dawn raids vs. the freedom of the press* Paris Court of Appeals, Order of 17 June 2010, Amaury and Others Relying on what seems to be unprecedented reasoning, the President of the Paris Court of Appeals has quashed a judicial order authorizing a dawn raid against several companies belonging (...)

The EU General Court imposes a high burden on the European Commission to refuse access to its confidential records (Editions Odile Jacob)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
On June 9, 2010, the EU’s General Court (Court) issued its judgment on an appeal by Editions Odile Jacob (EOJ) against a decision by the European Commission (the Commission) refusing to disclose certain documents relating to the Commission’s review under the EC Merger Regulation of the (...)

A US Federal Court reinforces that the Twombly “facial plausibility” standard serves as strong basis for dismissal in a price-fixing class action (LaFlamme / Société Air France)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom (Washington)
On April 5, 2010, Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York issued a Memorandum and Order dismissing the plaintiffs’ putative antitrust class-action complaint against KLM Royal Dutch Airlines and others for failing to state a claim. The plaintiffs (...)

The US District Court for the Eastern District of Pennsylvania adopts "scope of patent" test for analyzing Hatch-Waxman patent settlements (Cephalon)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
On March 29, 2010, Judge Mitchell S. Goldberg upheld antitrust lawsuits filed by the Federal Trade Commission (FTC) and private plaintiffs against drug maker Cephalon, Inc. (Cephalon), alleging that Cephalon conspired with four generic drug manufacturers to delay generic competition for the (...)

The European Commission publishes documents on Best Practices in competition law enforcement and on the role of the Hearing Officers
European Commission
European Commission: Best practices improve Transparency and Predictability of Proceedings In order to further enhance the transparency and the predictability of Commission antitrust proceedings, detailed explanations concerning how European Commission antitrust procedures work in practice (...)

The Spanish Supreme Court passes an important judgment concerning the violation of the right to rely on all relevant evidence in an antitrust case (SOS Cuetara)
European Court of Justice (Luxembourg)
,
Garrigues
Introduction On 10 December 2009, the Spanish Supreme Court (Tribunal Supremo) passed an important judgment concerning the limits of the notion of due process under Spanish law. In particular, the Supreme Court shed some light on the consequences of the violation of the right to rely on all (...)

The Russian Constitutional Court confirms the constitutionality of certain provision of the Competition Law regulating the powers of the national competition authority (Gazenergoset and Nizhnekamskneftkhim)
University of Technology (Tallinn)
In 2006 two companies, applicants in the present case, OAO “Gazenergoset” and OAO “Nizhnekamskneftkhim” have been found in violation of the competition law. Russian Competition Authority (Федеральная Антимонопольная Служба) (FAS) found that undertakings concerned participated in the concerted practices and (...)

The Paris Court of Appeal opposes to the Supreme Court on admissibility of evidence obtained without the knowledge of the companies under investigation (Avantage / Sony / Philips)
Université Catholique de Lille
,
Potamitisvekris
On 29 April 2009, the Paris Court of Appeal dismissed for the second time the appeal of Philips and Sony against a decision of the Competition Council in 2005 condemning an agreement between the two companies and their respective distributors. In so doing, the Court of Appeal expressed its (...)

The English High Court dismisses novel class action claim for alleged antitrust damages arising out of agreements or concerted practices relating to the supply of air freight services (Emerald/British Airways)
Linklaters (London)
,
A&L Goodbody (Dublin)
The High Court today dealt a serious blow to claimants seeking to bring damages claims on a representative basis (which are, in substance, akin to "opt-out" class actions) by confirming that existing rules cannot be "stretched" to allow such claims in the English courts. In September 2008 two (...)

The French Commercial Supreme Court rules that the NCA may not rely on unfairly obtained recordings as evidence (Sony France and Philips France)
Vogel & Vogel
A small consumer electronics discount retailer brought an action before the Competition Council against some of its suppliers for vertical agreements made with their respective distributors. In support of the action, the retailer produced tapes containing the recordings of phone conversations (...)

The European Commission publishes White Paper on damages actions for breach of EC antitrust rules
Linklaters (London)
,
Linklaters
As foreshadowed in debates before the European Parliament on this topic, the Paper is accompanied by a detailed impact assessment. The Paper confirms the Commission’s thinking that neither Community action nor Member States’ action in isolation can address the obstacles to private enforcement and (...)

The German FCO establishes a new unit to supervise prices in the energy sector
Van Bael & Bellis (Brussels)
On 2 January 2008, the German Federal Cartel Office (FCO) established a new unit B10 which, jointly with the Cartel Offices of the German Länders, will be in charge of controlling whether gas and electricity are being set at appropriate prices. The new unit will have eight full-time members. The (...)

The Swedish Market Court rejects the NCA’s application for fining an association of undertakings providing car towing services for price setting due to standard of proof issue (MRF - Bärgarna / Assistancekåren)
Swedish Competition Authority (Stockholm)
,
Swedavia AB
In 2002, the Swedish Competition Authority (the ) received complaints regarding the Swedish association of companies which provide car towing services, MRF-Bärgarna, and its subsidiary Assistancekåren Sweden AB (“Assistancekåren”). The SCA launched an investigation and in January 2003 carried out (...)