Anyone who doubts that ballot design can change the course of the world needs to revisit the infamous Butterfly Ballot’s pivotal role in George Bush’s unusual path to the U.S. presidency.

Perhaps realizing the decisive effects ballot design can have, the European Commission is seeking comments on a proposed Microsoft Web Browser Ballot that could weaken Microsoft Internet Explorer’s global domination.

The European Commission is inviting software companies, computer manufacturers, consumers and other interested parties to submit comments on the Microsoft proposal to offer users of its Windows operating system a greater choice of web browsers.

Microsoft hopes the proposal will settle the web browser chapter of its long-running antitrust dispute with EU antitrust enforcers. click here for more »

The United States Supreme Court in the last two years has given defendants in federal civil cases two key victories.  Now, a powerful Senator has joined with plaintiffs’ groups in introducing a bill to repeal those decisions. 

The two decisions – 2007’s Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and this year’s Ashcroft v. Iqbal, 129 S.Ct. 1937 – concern the level of detail that a plaintiff must allege to survive a motion to dismiss.  Twombly held that while a complaint need not allege “detailed” facts, it must include “enough facts to state a claim to relief that is plausible on its face.”  “Naked assertions” of fact are not enough.  Iqbal clarified that Twombly, an antitrust case, applied to all civil lawsuits.  Iqbal may have also raised the standard even higher with its direction to courts to “draw on [their] experience and common sense” in assessing a complaint’s plausibility. 

Plaintiffs’ groups now seek a legislative repeal of Twombly and Iqbal.  They say that Twombly and Iqbal go too far because wronged persons with legitimate claims sometimes do not have access to specific facts before they sue.  In an employment discrimination case, for example, a plaintiff may observe discriminatory behavior, but the defendant alone may have the revealing employment records. click here for more »

Sports leagues and other joint ventures may score an antitrust victory in the Supreme Court this term that makes the Baseball Antitrust Exemption look strictly minor league.

The Supreme Court will hear the case of American Needle, Inc. v. National Football League, which concerns the NFL’s practice of licensing NFL and team logos and other intellectual property exclusively through the NFL’s wholly-owned subsidiary, NFL Properties LLC.

At issue is the extent to which joint ventures, like the NFL, can be considered “single entities” under antitrust law—as opposed to multiple, collectively-acting ball clubs—and thus not held subject to the anticonspiracy prohibitions of § 1 of the Sherman Act.  American Needle thus has the potential to be a watershed case in antitrust analysis of sports leagues and other joint ventures. click here for more »

While the antitrust class action is historically an American enforcement tool, the European Union is on the verge of pressing this powerful hammer into the hands of its member states.

Under a draft EU Directive, state bodies and nonprofit organizations appointed by national governments would be able to bring class actions in national courts against companies that fix prices or abuse their dominant market share.  Victims would automatically be included in the class action unless they opt out.  The draft Directive allows victims at least two years to take legal action to recover actual losses and lost profit after a final court ruling on a company’s liability.

European Competition Commissioner Neelie Kroes is expected to present the proposed Directive to fellow commissioners in the next few weeks.  If adopted as a Directive by the European Commission, EU Member States would be required to implement it or face heavy fines. click here for more »

Discover Financial Services more than tripled its profits in the third fiscal quarter 2009, due in part to the antitrust settlement that Constantine Cannon and co-counsel secured last year. According to Discover’s quarterly financial statement, the company’s profits included approximately $287 million (after tax) in settlement payments relating to this lawsuit. 

In October 2008, Discover recovered $2.75 billion – the third-largest antitrust recovery in world history – from Visa and MasterCard.  This settlement was the result of a lawsuit alleging that the defendants illegally blocked Discover from issuing credit and debit cards through banks.  Discover’s lawsuit followed a successful action against Visa and MasterCard by the Antitrust Division of the United States Department of Justice, which proved that the defendants had violated the antitrust laws.

For more information about this successful recovery, click here.

Canadian competition law litigation took a step forward last week with the decision in Irving Paper Ltd v. Atofina Chemicals Inc. et al., in which the Ontario Superior Court certified a consolidated class of direct and indirect purchasers in a horizontal price-fixing case involving the hydrogen peroxide industry.  The case has important precedential value as it represents the first time in Canada that an antitrust class action was certified in an international conspiracy/cartel case on a contested basis.

The Court had to determine whether a class of purchasers of hydrogen peroxide met the criteria for certification under the Class Proceedings Act, including: 1) whether the pleadings disclosed a cause of action; 2) whether there was an identifiable class of two or more persons that would be represented by the class representative; 3) whether the claims or defenses of the class members raise common issues; 4) whether the class proceeding was the preferable procedure for the resolution of the common issues; and 5) whether there was a representative plaintiff or defendant who would adequately represent the interests of the class. click here for more »

Constantine Cannon’s founding partner, Lloyd Constantine, has written a book that answers the timely question of how do you rescue an industry from the greed and anticompetitive conduct of financial giants?  Constantine’s answer was to lead an historic legal battle against Visa and MasterCard that led to those financial giants paying billions of dollars to America’s merchants.

Constantine’s book, Priceless: The Case That Brought Down The Visa/MasterCard Bank Cartel,  tells the tale of how Constantine Cannon, at the time a young boutique antitrust law firm, took down the Visa and MasterCard bank cartel in the groundbreaking Visa Check/MasterMoney Antitrust Litigation.  The book hits the bookstores and the web-based booksellers on October 6, 2009. click here for more »