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Blog o’ Blogs July

By  |  August 15, 2017

June’s summer season brings heat to several debates as legislators on both sides of the Atlantic focused on upcoming cases that could mark a turning point for the Telecommunications, Internet and Internet Services markets. Certainly an interesting summer rush, which may lead to a few shocking news in the coming months as the dust settles on major decisions and upheavals from the past year.

In April 2017, FCC Chairman Ajit Pai issued a Notice of Proposed Order, Restoring Internet Freedom, seeking to reverse the FCC’s previous adoption of “net neutrality” principles in its March 2015 Open Internet Order. Net neutrality is the principle that internet service providers (“ISPs”) should treat all data equally, regardless of source.
Amar Naik and Brittany Walter (Antitrust Law Blog/Sheppard Mullins)
Supreme Court Considers Vitamin C Price Fixing Lawsuit
Just a few days after the Justices of the Supreme Court conferred on the cert petition in the Vitamin C price fixing antitrust case, the Court asked the Acting Solicitor General to file a brief “expressing the views of the United States.”
Terra Hittson and Jonathan H. Hatch  (Antitrust Update)
If you get lost, sometimes you must go back and start again from the beginning. I’ve been a bit lost on whether the Sherman Act is unconstitutional as a criminal statute. It is well accepted that per se violations of the Sherman Act can be prosecuted criminally.  An individual can be sentenced to up to ten years in prison.  But, is the accepted learning on this issue wrong?
Robert Connolly (Cartel Capers)
The Antitrust Laws Do Not Allow Real Estate Agents to Jointly Fix or Set Prices or Commissions
If you have sold or purchased a home recently, you might be under the impression that real estate commissions—the price to engage a real estate broker—are fixed or otherwise set by law in different geographic markets.
Jarod Bona (The Antitrust Attorney)
The Seventh Circuit refused to revive an exclusive dealing claim by one hospital against its competitor because of an exclusivity agreement with an insurance plan. Judge Richard Posner wrote the short opinion strongly reiterating in the health insurance context the established principle that a competitor trying to attack vertical agreements under Section 1 of the Sherman Act will have an uphill struggle under the Rule of Reason.
David Garcia and Nadezhda Nikonova  (Antitrust Law Blog)
In the European Union, Big Pharma has been operating with a target on its back for the best part of the last decade. Eight years after the conclusion of the 2008 pharmaceutical sector inquiry, it is clear that the Commission has largely been true to its stated enforcement priorities.
Philipp Werner & Christian Fulda (Antitrust Connect/Jones Day)
Multi-Defendant Antitrust Litigation: Lessons Learned from In re: Automotive Parts Antitrust Litigation
In the latest development in the massive auto parts antitrust litigation, the State of California settled with Sumitomo Electric Industries, Ltd. and related companies regarding their sale of wire harness systems and heater control panels at allegedly supracompetitive prices. Sumitomo did not admit to any wrongdoing, but agreed to pay California over $800,000
Terra Hittson and Jonathan H. Hatch (Antitrust Update)
Google Shopping Decision- First Urgent Comments
Today is an important day for EU competition law. For various reasons I have not commented publicly on Google’s cases for over two years now (for our previous extensive coverage, see here) The most recent of those reasons is that whereas I used to be a neutral observer (like Pablo still is) I have recently started advising Google in some competition matters, although as of today not directly on the Shopping case.
Alfonso Lamadrid (Chilling Competition)
EU Financial Regulator Issues Aggressive Opinion on “Passaporting” issues
The European Securities and Markets Authority (ESMA), issued an aggressive Opinion on the 31 May 2017, aimed at dashing the hopes of letterbox subsidiaries in the EU. The Opinion also sought to govern growing competition between EU Member States for business relocating as a result of Brexit.
Robert Bell & Roman Madej (Bryan Cave EU Competition Blog)
What She [Sally Q. Yates] Said….
I have written often about the need to reform the Sentencing Guideline for antitrust violations.  U.S.S.G. 2R1.1.  My major beef is that the antitrust guideline measures culpability primarily by the volume of commerce subject to the agreement, to the exclusion of many other very relevant factors…
Robert Connolly (Cartel Capers)
Integration Planning and Pre-Closing Conduct: Gun-Jumping Risks
Complex transactions are subject to an increased level of antitrust scrutiny by competition authorities. This often results in extended waiting periods between signing and closing – it can nowadays be one year or even longer before the parties are able to implement the deal.
Thomas Wilson (Antitrust Connect/Freshfields Bruckhaus Deringer)
U.S. Supreme Court Limits Jurisdictions Where Non-U.S. Businesses May Be Sued
On June 19, 2017, the U.S. Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California,[1] a multi-plaintiff State product liability case in which the Court rejected a loose standard for personal jurisdiction for claims brought by out-of-State plaintiffs.
Robert Reznick & Elena Kamenir (Orrick Antitrust)