September 4, 2014

MFNs Becoming A Battleground In FCC’s Review Of Comcast/Time Warner Deal

By Allison F. Sheedy

The biggest regulatory review of the year—the Federal Communications Commission’s examination of Comcast Corp.’s proposed acquisition of Time Warner, Inc.—has taken an interesting foray into analyzing competitive tactics, with the FCC’s invitation to media companies to confidentially raise concerns about Comcast’s use of most favored nation (“MFN”) provisions in its contracts to purchase content.

The Wall Street Journal reported yesterday that the FCC has invited companies, including Discovery Communications, to offer feedback about Comcast’s MFNs to aid its evaluation of the proposed take-over.  The FCC also publicly released a request for information to Comcast that included (among many other items) details about each agreement in which Comcast has used an MFN.

In a typical form, an MFN is a contractual promise obtained by a buyer from a seller that the seller will not give a better price to any other purchaser.  A buyer usually seeks an MFN clause as a form of protection to ensure that its competitors do not get cost or other advantages.

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Categories: Antitrust Enforcement, Antitrust Litigation, Antitrust Policy

    August 13, 2014

    NCAA’s Loss In O’Bannon Trial May Be Only A Partial Victory For Competition

    By Jeffrey Shinder and David Scupp

    Although competition scored a win on Friday in the student athletes’ antitrust suit led by former UCLA basketball player Ed O’Bannon against the NCAA, it wasn’t a complete blowout.

    Judge Claudia Wilken of the U.S. District Court for the Northern District of California issued a 99-page decision that permanently enjoins the NCAA from enforcing its blanket restriction on FBS football and Division I basketball collegiate athletes receiving any portion of the licensing revenue generated from the use of the players’ names, images, and likenesses.

    The decision, rendered after trial in In re Student Athlete Name & Likeness Licensing Litigation, held that the NCAA’s restrictions violated antitrust law. The decision is significant: it marks the first time that a court has heard a challenge to the NCAA’s “amateurism” principles, it cuts through the NCAA’s rhetoric, and it rules largely in favor of the plaintiffs. But, while a significant victory for plaintiffs, the relief obtained was limited in ways that may unnecessarily restrict competition.

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    Categories: Antitrust Litigation

      August 7, 2014

      Federal Court Denies Class Certification In Intel Antitrust Litigation

      By David Golden

      Plaintiffs in the long-running In re Intel Corporation Microprocessor Antitrust Litigation class action have suffered a major setback with last week’s denial of class certification by the U.S. District Court for the District of Delaware.

      The lawsuit, filed in 2005, alleges that Intel illegally excluded its major rival, Advanced Micro Devices (commonly referred to as “AMD”), from the U.S. market for x86 computer microprocessors[1] by paying computer manufacturers “loyalty payments” and “rebates” to use only Intel chips. The proposed class is compromised of indirect purchasers that bought computers that contained Intel microprocessors. The plaintiffs contend Intel’s payments to computer manufacturers reduced competition for chips, and ultimately raised the prices consumers paid for computers.

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      Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

        August 4, 2014

        Massachusetts Court Hosts Debate On Whether Partners HealthCare Merger Settlement Will Affect The Common Health Of The Commonwealth

        By Daniel Vitelli

        A Massachusetts state court has extended the time for a contentious debate on a proposed antitrust settlement that the Massachusetts State Attorney General says will help hold down medical expenses, and critics say will result in greater market power for the state’s largest health care system.

        Attorney General Martha Coakley is asking Suffolk Superior Court Judge Janet L. Sanders to approve a consent judgment that reflects a settlement agreement the Attorney General’s office has reached with Partners HealthCare System, Inc. The deal resolves an investigation by the Attorney General’s office into Partners’ acquisitions of South Shore Health and Educational Corp. (South Shore Hospital) and Hallmark Health Corp. (Lawrence Memorial Hospital and Melrose-Wakefield Hospital).

        The court has scheduled a hearing on the proposed antitrust settlement for Sept. 29, 2014. The court has also extended the public comment period on the settlement to Sept. 15, and given the Attorney General until Sept. 25 to respond to the comments.

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        Categories: Antitrust Litigation

          June 16, 2014

          In re Student Athlete Name and Likeness Litigation – Recap Of The First Week Of Trial

          By David Scupp

          The participants in the highly anticipated, and potentially transformative, antitrust trial In re Student Athlete Name and Likeness Licensing Litigation spent their first week of trial grappling with the myths and realities of college athletics.

          Plaintiffs, led by former UCLA basketball star Ed O’Bannon, challenge the NCAA’s rules denying compensation to college athletes for use of their name and likeness in television broadcasts, rebroadcasts, game clips, and video games. To win, plaintiffs will have to overcome the NCAA’s “amateurism” justification for restricting its athletes’ compensation – a defense that the NCAA has employed successfully for decades. This will be one of, if not the, primary battlegrounds in the case. Much of the testimony heard during the first week of trial focused on this issue.

          Plaintiffs opened their case by calling O’Bannon himself. His testimony sought to debunk the “myth” of the “student athlete” that participates in college athletics merely as an “avocation.” He explained that at UCLA academics were not a priority, with the 40 to 45 hours he spent per week on basketball related activities, dwarfing the 12 hours per week he spent studying. O’Bannon asserted that he attended UCLA to play basketball, and only “masqueraded” as a student. He also made clear that he does not see college athletes as “amateurs.”

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          Categories: Antitrust Litigation

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