Antitrust and Unfair Competition Law

The newsletter of the ISBA’s Section on Antitrust & Unfair Competition Law

2004 Articles

The Antitrust Criminal Penalty Enhancement and Reform Act of 2003 By Bridget C. Kevin June 2004 On October 29, 2003, Senators DeWine (R-OH) and Kohl (D-WI) introduced the Antitrust Criminal Penalty Enhancement and Reform Act of 2003 (S. 1797)1 to modify the existing antitrust laws in three chief ways.
Clarett v. National Football League March 2004 The district court for the Southern District of New York granted Maurice Clarett's Sherman Act Section 1 motion for summary judgment challenging an NFL rule that prohibits teams from drafting players who are not at least three seasons removed from their high school graduation.
The common law approach and improving standards for analyzing single firm conduct By R. Hewitt Pate March 2004 A speech from R. Hewitt Pate to the Thirtieth Annual Conference on International Antitrust Law and Policy at Fordham.
Consumer protection in India By Karen Kaspar January 2004 In the age of globalization and a growing trend toward free trade, the consumer in today's market is at a significant disadvantage.
Danger signs in vertical pricing arrangements By Blake L. Harrop March 2004 One of the most difficult areas of counseling under the antitrust laws is in the area of Resale Price Maintenance ("RPM"), an area where suppliers become actively involved with the resale prices of their customers.
Dealing with a grand jury investigation By John L. Conlon January 2004 Antitrust counsel sometimes forget that the Sherman Act is a criminal statute.
Down one and three to go: Supreme Court to decide four antitrust cases in 2003-04 term By Robert E. Draba March 2004 Throughout the 1980s, the United States Supreme Court regularly decided one or two major antitrust cases each term.
Editor’s notes November 2004 This issue leads off with an analysis of the long-awaited joint FTC and DOJ report examining competition in the health care sector.
Editor’s notes By Jason Dubner June 2004 Our final issue of the 2003-2004 term begins with two pieces that focus on the interplay between antitrust and intellectual property law.
Editor’s notes March 2004 This issue kicks off with a reprint of a fascinating address by R. Hewitt Pate, Assistant Attorney General, Antitrust Division, U.S. Department of Justice, explaining how a common law approach to antitrust law in the U.S. has allowed courts and enforcers to incorporate sophisticated techniques into their analysis, as such concepts become available. Mr. Pate shows how the European Union is beginning to employ the same incremental approach to competition law.
Editor’s notes January 2004 Filled with practical advice and timely commentary, the December issue of the Antitrust & Unfair Competition Law newsletter is bound to make the perfect gift for that hard-to-shop-for antitrust lawyer on your holiday gift list!
First Data and Concord merger primer By Winnie Wong January 2004 The Department of Justice filed suit on October 23, 2003 to block the proposed merger between First Data, Corp. and Concord EFS, Inc.
The Health Care Competition Report: Insights from the Federal Antitrust Agencies By Scott D. Stein & Richard D. Raskin November 2004 On July 23, 2004, the Federal Trade Commission and the Department of Justice released a long-awaited joint report examining competition in the health care sector.
Implied Immunity: Stock Exchanges Options survives Trinko By Robert E. Draba November 2004 "Section 1 of the Sherman Act makes illegal any contract, combination or conspiracy in restraint of trade."1 But Congress has the power to exempt conduct from liability under Section 1 with a regulatory scheme.
In re Flat Glass Antitrust Litigation November 2004 In late September, the Third Circuit reversed in part the Western District of Pennsylvania's grant of summary judgment for a defendant glass manufacturer alleged to have participated in a price-fixing conspiracy.
Infusion Resources v. Minimed, 351 F.3d 688 (5th Cir. 2003) June 2004 Infusion Resources, Inc. and Diabetes Resources, Inc., d/b/a Insulin Infusion Specialties ("IIS"), brought suit against Minimed, Inc. ("Minimed") for price discrimination under the Robinson-Patman Act ("RPA"), 15 U.S.C. Section 13(a)/ Section 2(a) Clayton Act, and the Louisiana Price Discrimination Act ("LPDA"), La. R.A. Section 51:3331; a claim for lack of fair dealing under the Louisiana Unfair Trade Practices Act ("LUPTA"), La. Section 51:1409; and claims for breach of the implied duty of good faith, breach of contract, defamation and violation of trade secrets.
Pharmaceutical patent settlement cases: Mixed signals for settling patent litigation By Margaret J. Simpson June 2004 In its October 2003 Report on Competition and Patent Law and Policy, the Federal Trade Commission wrote that "competition and patents are not inherently in conflict.
Recent antitrust decisions January 2004 United States v. Visa U.S.A., Inc., 344 F.3d 229 (2d Cir. 2003): Defendants Visa, U.S.A., Inc., VISA International Corp. and MasterCard International Inc., appealed the District Court's finding that their "exclusivity plans" violated section 1 of the Sherman Act. Visa, U.S.A. and MasterCard, each a joint venture of numerous banks, had membership rules that allowed their members to offer both Visa and MasterCards, but prohibited the members from offering any other competing charge or credit card.
Recent HSR enforcement actions: Understanding the limits of the investment-only exemption By Jennifer Clarke-Smith June 2004 Two recent Hart-Scott-Rodino Act enforcement actions by the Federal Trade Commission ("FTC") and the Department of Justice's Antitrust Division ("DOJ") highlight the importance of being well informed about the limits of the Act's exemption for investments made solely for the purpose of investment.
Unsportsmanlike conduct committed by the BCS By Nicole Hanna January 2004 The college football season thus far has been more exciting than in previous years. Dominant schools are being upset by traditionally weak schools, bridging the gap that was once so prevalent in college football, and thus making it seem as though all college football teams are standing on equal ground.
US and EU approaches to the antitrust analysis of intellectual property licensing: Observations from the enforcement perspective By Makan Delrahim June 2004 In today's world, whether firms are creators or consumers, intellectual property rights are crucial to performance. Intellectual property rights, whether copyrights, patents, or another legal form, are increasingly crucial to all sectors of the economy and continue to fulfill Thomas Jefferson's prophecy of providing the "fuel to the fire of ingenuity."