Don’t put anything in an email that you wouldn’t want on the front page of the newspaper.  Or in a decision of the European Commission slapping a 1.06 billion Euros fine (approximately $1.5 billion) on your company.

On September 21, 2009, the Commission released a public version of its May 13 decision in which it imposed the record fine on Intel, the world’s largest semiconductor chip manufacturer, for violating EU antitrust law by abusing its dominant position in the market for computer chips known as x86 central processing units (CPUs).

What is most striking about the decision is that it quotes emails by executives of Intel and PC manufacturers, which the Commission contends are powerful evidence of Intel’s culpability.  This is the first time the Commission has publicized such evidence. click here for more »

Antitrust practitioners that pass on the upcoming opportunity to comment on revising the 1992 Merger Guidelines will be missing an opportunity that comes once in a generation.

For 17 years now, the Horizontal Merger Guidelines jointly developed by the U.S. Department of Justice and Federal Trade Commission have been one of a few doctrinal pillars of the faith among antitrust practitioners, most notably with respect to market definition.  Since their promulgation in 1992, the Guidelines have survived two full presidential administrations that were diametrically opposed in their philosophies of merger and unilateral conduct enforcement, a remarkable testament to the Guidelines’ intellectual underpinnings and continuing relevance. 

On September 22, 2009, the DOJ and FTC announced that they would jointly hold workshops in the coming months for the purpose of evaluating whether to revise the Guidelines and, if so, how.  In her speech to the Third Annual Georgetown Law Global Antitrust Enforcement Symposium, Assistant Attorney General and Head of the DOJ’s Antitrust Division, Christine Varney, stated that the workshops would likely discuss at least three broad topics:  market definition, market concentration, and competitive effects. click here for more »

Antitrust enforcers may be seeing a lot of their old friends at Microsoft thanks to the Internet search deal the computer giant has reached with Yahoo!  As Constantine Cannon’s Matt Cantor discusses in his recent article, “Microsoft-Yahoo! ‘Partnership’ Is Anti-Competitive“, the deal raises substantial antitrust issues that may doom it.

It appears that Microsoft and Yahoo!’s proposed “partnership,” which provides for Yahoo! to exit the search business and rely exclusively on Microsoft’s search engine, Bing, will cause the Internet search market – which has indisputably high barriers to entry – to shrink to a duopoly consisting of Bing and Google.  If the DOJ applies traditional antitrust analysis, the deal should be viewed as presumptively anticompetitive, and the partnership will survive the Department’s scrutiny only if one of the legally cognizable antitrust merger defenses can be established. click here for more »

“You see there is only one constant.  One universal.  It is the only real truth.  Causality.  Action, reaction.  Cause and effect.”

 – The Merovingian in The Matrix Reloaded

Characters in science fiction films such as The Matrix series and The Time Traveler’s Wife have struggled with life-or-death issues of causation.  As highlighted by recent decisions of the U.S. Court of Appeals for the District of Columbia, however, issues of causation can be just as fatal to antitrust enforcement.

Although causation may not be the only real truth, for antirust enforcers it can be the make-or-break issue that determines whether they can maintain an antitrust case against a dominant firm.  While a great deal of attention has rightly been focused on how to correctly identify monopolies and exclusionary conduct, relatively little attention has been given to the legal standard for proving that a firm’s conduct has, in fact, (a) caused the exclusion of rivals, and (b) caused or maintained a monopoly. click here for more »

Though Supreme Court Justice Sonia Sotomayor’s nomination hearings made lots of news, the media didn’t spend much time focusing on her antitrust decisions.  But the nation’s newest justice is no stranger to the Sherman Act.

Constantine Cannon – as Lead Counsel in its groundbreaking debit card litigation – has first-hand experience with Justice Sotomayor’s antitrust jurisprudence.  She authored a pivotal decision that kept the debit card litigation alive and led to the largest federal antitrust settlement in U.S. history.  click here for more »

The chairmen of the House and Senate antitrust subcommittees are just saying no to the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 887 (2007).  Leegin overturned the Supreme Court’s 1911 Dr. Miles decision holding that resale price maintenance was per se illegal.  Both bills seek to reinstitute the per se rule by statute.

On January 6, 2009, Chairman Herb Kohl (D-Wis.) of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights introduced S. 148, the “Discount Pricing Consumer Protection Act.”  The Committee held a hearing on the bill on May 19, but it has not taken further action.  click here for more »

The Chairmen of the House and Senate Judiciary Committees have joined forces to open a new – antitrust – front in the war for healthcare reform.  The two leading Democrats are seeking to boost healthcare reform with a partial repeal of an antitrust exemption that’s about as old as Democrats’ efforts to enact universal healthcare.

On September 17, 2009, Chairman John Conyers (D.-Mich.) of the House Judiciary Committee and Chairman Pat Leahy (D.-Vt.) of the Senate Judiciary Committee introduced legislation to repeal the McCarran-Ferguson Act’s exemption from the federal antitrust laws for health and medical malpractice insurers.  The Act dates back to 1945, the same year that President Harry Truman asked Congress to enact a national health insurance program.   click here for more »

In the 2000 Presidential election, Americans became painfully aware of the dirty secret of their democracy — that the integrity of our elections depends on a messy patchwork of voting machines that use disparate and often archaic systems.  Since then, efforts have been made to improve and standardize the system but the weaknesses of the system remain and are particularly apparent in contested close elections.  Now the integrity of our election systems is being raised in a surprising new context — antitrust merger enforcement.  click here for more »

Being a parent means great responsibilities – especially if you’re a corporate parent with subsidiaries active in the European Union.  As a result of the European Commission’s Akzo Nobel case, such corporate parents now face greater antitrust liability for the conduct of their 100%-owned subsidiaries.

On September 10, 2009, the European Court of Justice dismissed Akzo Nobel’s appeal of a 2007 judgment of the Court of First Instance.  The 2007 judgment confirmed a 2004 European Commission decision that fined Akzo Nobel subsidiaries for their participation in a cartel.  What makes this decision particularly noteworthy is that the subsidiaries’ parent company, Akzo Nobel, NV, was held jointly and severally liable on the basis of its 100% ownership of those subsidiaries. click here for more »