April 13, 2015

The Antitrust Week In Review

Here are some of the developments in antitrust news this past week that we found interesting and are following.

Formal Charges May Be Next in Europe’s Google Antitrust Inquiry.  Although Europe’s antitrust investigation of Google has dragged on without a settlement for nearly five years, the internet giant’s breathing room may soon come to an end.  Margrethe Vestager, the European Union’s antitrust chief, will make her first trip to Washington on Wednesday to participate in two antitrust conferences. The visit has raised expectations that she may be on the verge of announcing some action against Google.

U.S. announces first antitrust e-commerce prosecution.  The U.S. Department of Justice’s antitrust division has announced its first prosecution specifically targeting Internet commerce, saying a man has agreed to plead guilty to conspiring to illegally fix the prices of posters he sold online.  David Topkins was accused of conspiring with other poster sellers to manipulate prices on Amazon Marketplace, a website for third-party sellers.  Topkins was accused of violating the Sherman Act by conspiring with other poster sellers to use algorithms, for which he wrote computer code, to coordinate price changes.

Shell-BG takeover to test China’s pledge on antitrust transparency.  Royal Dutch Shell’s $70 billion bid for BG Group will test a pledge by China’s antitrust regime to be more transparent, after it faced strong criticism last year from the United States and Europe.  China’s new competition law has been a wildcard for large international deals in recent years, particularly where natural resources are concerned.

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Categories: Antitrust Litigation, International Competition Issues

    April 6, 2015

    The Antitrust Week In Review

    Here are some of the developments in antitrust news this past week that we found interesting and are following.

    Antitrust and Other Inquiries in Europe Target U.S. Tech Giants.  European antitrust regulators are intensifying their scrutiny of giant American tech companies.  Not only is the European Union antitrust investigation into Google heating up, but additional European countries are looking into Facebook’s privacy settings, and Apple, which already is under scrutiny for its low corporate tax arrangements in Ireland, is now facing potential antitrust questions from the European Commission about the company’s upcoming music streaming service.

    StubHub is suing Ticketmaster over ticket cancellations.  StubHub, the largest ticket reseller in the U.S., filed an antitrust lawsuit against competitor Ticketmaster and the NBA’s Golden State Warriors, claiming that they worked together to cancel tickets that were resold on StubHub.  StubHub, which is represented by Constantine Cannon, stated that it “seeks to stop unfair and illegal anti-competitive business practices that prevent fans from deciding how they want to resell their tickets and which artificially drive up ticket prices.”

    European Commission Asks Companies to Go Public With Google Complaints.  The European Commission has asked several companies to go public with confidential complaints they have made against Google, according to sources.  The companies that have filed submissions with the commission include Yelp and other major American technology companies, as well as leading German and French publishing groups that claim Google has too much control over how Europeans access information over the Internet.

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    Categories: Antitrust Litigation, International Competition Issues

      April 2, 2015

      Congress Grapples With The Right Mix For Bipartisan Data Breach Bill

      By Leigh Orliner LaMartina

      Congress is actually making progress in advancing a bipartisan bill that seeks to stem the avalanche of data breaches that lately seem to threaten massive amounts of sensitive consumer financial information with alarming regularity.

      On March 25, 2015, the House Energy and Commerce Committee voted to approve the Data Security and Breach Notification Act of 2015 (the “Act”), which was authored by Rep. Marsha Blackburn (R-TN) and Rep. Peter Welch (D-VT).

      The proposed legislation would mandate that entities (1) maintain reasonable data security measures; and (2) notify consumers in a timely manner of data breaches that may leave them vulnerable to economic harm.  This standard would apply to entities that own or possess, or contract for third parties to maintain or process, data containing certain personal information. Notably, in early drafts, third party “Service Providers” were to be exempt from the draft’s security and notification requirements, required to notify only the “Covered Entity” whose data had been breached.

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      Categories: Antitrust Litigation

        March 31, 2015

        Supreme Court Seeks To Untangle Patent And Antitrust Principles Caught In Spider-Man’s Web

        By Seth D. Greenstein

        The Supreme Court heard oral argument today on whether litigation over a toy based on Spider-Man’s web should be used to vanquish a 50-year-old precedent precluding patent owners from collecting patent royalties on expired patents under a per se rule, and to replace it, in effect, with an antitrust Rule of Reason analysis.

        In Kimble v. Marvel Enterprises, Inc., an individual inventor patented a toy glove that shoots foam string, similar to Spider-Man’s web.  After Stephen Kimble, the patent owner, showed his invention to the president of Marvel, Marvel began selling an allegedly infringing “Web Blaster” toy.  The patent owner and Marvel settled their patent and breach of contract litigation with an agreement assigning the patent to Marvel, and requiring Marvel to pay specified royalties on sales, with no reduction in the royalty amount or termination date after the patent expired.

        When the patent owner filed suit over a dispute under the settlement agreement, Marvel responded with a declaratory judgment claim that, under Brulotte v. Thys Co., 379 U.S. 29 (1964), it had no obligation to pay any royalties after the patent expired.  In Brulotte, the Court prohibited the licensor of a hop-picking invention from collecting royalties after the patent term, as “an assertion of monopoly power” analogous to tying sales of patented items to unpatented items, since an invention disclosed in an expired patent enters the public domain.  Kimble and Marvel testified, however, that neither was aware of Brulotte when settling the prior case.  Both the district court and the Ninth Circuit found for Marvel, holding that Brulotte prohibits collection of patent royalties on sales after the expiration of a patent.

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        Categories: Antitrust Litigation

          March 30, 2015

          The Antitrust Week In Review

          Here are some of the developments in antitrust news this past week that we found interesting and are following.

          Amex to Ask for Stay of Ruling Prohibiting Merchants From Promoting Other Cards.  American Express has announced that it will be seeking a stay of a ruling that could ban the company’s longstanding practice of prohibiting merchants from encouraging customers to pay with lower-cost cards.  Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York ruled last month that the practice violates U.S. antitrust laws.  The court is currently in the process of considering proposed remedies.

          EU antitrust regulators to investigate ecommerce.  European Union regulators plan to investigate ecommerce in an effort to remove barriers to cross-border trade in the 28-nation bloc, according to the EU’s antitrust chief.  The investigation could lead to action against companies that deliberately block online sales.  European Competition Commissioner Margrethe Vestager said she decided to launch the inquiry because such anticompetitive hurdles are hampering the growth of online sales.

          F.T.C. Addresses Its Choice Not to Sue Google.  Several members of the Federal Trade Commission are defending the actions taken by the agency in its antitrust investigation of Google, nearly a week after an internal document from 2012 came to light, revealing that some staff attorneys  had wanted to sue Google for anticompetitive practices.  However, the FTC’s five commissioners ultimately voted not to sue.  The three commissioners who were at the FTC at that time defended the decision and issued a joint statement asserting that the report represented “a fraction” of the “voluminous record and extensive internal analysis” that was conducted on the matter.

          German Business Leaders Clash With Google, Antitrust Officials.  German business leaders are clashing with Google and European Union antitrust officials in a heated public debate over how to deal with the power of U.S. Internet firms.  Mathias Döpfner, the chief executive of German publishing house Axel Springer SE, and Deutsche Telekom AG Chief Executive Timotheus Höttges have both attacked the business practices of certain U.S. Internet firms in Europe, and expressed frustration at the lack of action by competition authorities.  The dispute is occurring as the EU prepares to announce the next steps in its long-running antitrust investigation of Google, which has been fruitless to date, despite three attempts at a settlement.

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          Categories: Antitrust Litigation, International Competition Issues

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