Posted by : Matthew Wild | On : December 8, 2008

On December 2, 2008, three Marsh executives went on trial in the Supreme Court of the State of New York (New York County) on charges of violating the Donnelly Act in connection with bid rigging of insurance policies.  As you may recall (and discussed on the February 22, 2008 Post), two Marsh executives were convicted on Donnelly Act violations after a 10 month trial.  These cases have been brought by the New York Attorney General.  Marsh paid $850 million to settle and another Marsh executive pleaded guilty.



Posted by : Matthew Wild | On : October 24, 2008

On October 20, 2008, the Antitrust Division, Colorado, Iowa, Kansas, Minnesota, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas and Wyoming sued to enjoin JBS Beef’s acquisition of National Beef Packing in the United States District Court for the Northern District of Illinois.  (Beef Complaint; Beef Press Release)  The government alleges that the merger would combine the third and fourth largest U.S. beef packers, which would result in lower prices for cattle and higher prices for beef consumers.  This action is interesting in two respects.  First, one of the theories of competitive harm is that the beef packers will gain monopsony power.  While the monopsony theory is well established and has been pursued in Antitrust Division challenges to mergers (e.g., Cargill’s acquisition of Continental Grain’s Commodity Marketing Group), some academics reject it because it is inconsistent with the monopsonist’s economic interest to drive prices so low that suppliers exit.  Second, although venue and personal jurisdiction were available in any district where the companies did business, the government chose the Chicago as its forum.  It likely did so because it has received favorable treatment there in the past and Seventh Circuit cases are favorable to merger challenges.  For example, the government prevailed in United States v. UPM Kymmene Oyj (a case in which this author was trial counsel) even though the government’s case was at best shaky and viewed by many as without merit.



Posted by : Matthew Wild | On : September 11, 2008

The attorneys general of Virginia, Alabama, Colorado, Florida, Kansas, Nebraska, Oklahoma, Utah and Washington filed an amicus curiae brief in favor of petitioner in Pacific Bell Telephone Co. v. Linkline, No. 07-512, which is pending before the Supreme Court.  This case raises the issue of whether a price squeeze claim can be maintained against a firm that does not have a duty to deal with the plaintiff.  As discussed in the Post of June 24, 2008, this case created a conflict between the Antitrust Division and FTC.  The Antitrust Division filed an amicus curiae brief supporting certiorai and urging reversal while the FTC issued a statement asserting that this case was not appropriate for certiorari and in any event, was correctly decided.  The brief (attached States Amicus Curiae Brief) filed by these nine state attorneys general supports the Antitrust Division’s position.



Posted by : Matthew Wild | On : July 11, 2008

Resale price maintenance liability remains alive even after Leegin Creative Leather Products v. PSKS, 127 S.Ct. 2705 (2007) (holding that rpm agreements are now subject to the rule of reason). On June 17, 2008, the Third Circuit held that a Mack truck franchisee raised a triable issue of fact under the rule of reason concerning an alleged resale price maintenance scheme. Toledo Mack Sales & Serv. v. Mack Trucks, No. 07-1811, 2008 WL 2420729 (3d Cir. June 17, 2008). In particular, the Court held that the plaintiff came forward with sufficient evidence to show that the existence of an agreement between the manufacturer and dealers to stop discounting and the agreement may have caused prices to increase violating the rule of reason. Relying on Monsanto v. Spray-Rite Serv., 465 U.S. 752 (1984), the dealers’ frequent input and complaints about discounting were sufficient to raise a triable question over the existence of an agreement. With respect to the showing under the rule of reason, the dealer established that the manufacturer had sufficient power in the engine placed in front of the cab and the low cab over engine truck markets to control prices in those markets. Accordingly, its efforts to reduce intrabrand competition could have affected interbrand competition and caused prices to increase in the relevant markets. The Third Circuit rejected the R-P- Act claim holding that the statute does not apply to custom made goods of the type that were at issue in this case. The Third Circuit also rejected the statute of limitations defense holding that the plaintiff could rely on evidence of overt acts that took place before the limitations period to prove the existence of the conspiracy during the limitations period. Counsel must be careful in advising their clients about resale price maintenance. In addition to liability that can arise as demonstrated by this decision, state attorneys general remain active in this area. See March 14 and May 23, 2008 Posts.



Posted by : Matthew Wild | On : July 7, 2008

On July 1, 2008, the Antitrust Division announced that VISA agreed to rescind a rule that required merchants to give VISA debit cards superior treatment than non-VISA debit transactions from VISA branded cards. Under the rule, VISA allowed merchants to waive the signature and PIN requirements for transactions of less than $25 on VISA debit cards but required the entry of a PIN or a signature on a VISA branded card for a non-VISA debit transaction. With a 70% share of the debit card market, this hurdle may have given VISA an unfair competitive advantage. This practice had become the subject of investigations by the Antitrust Division and the District of Columbia, New York and Ohio attorneys general. It is not surprising that VISA is gun-shy in light of its multi-billion settlements in private antitrust litigation. The Antitrust Division’s press release is attached. DOJ Press Release (VISA)



Posted by : Matthew Wild | On : May 23, 2008

The state attorneys general continue to be hostile to the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007), which overruled Dr. Miles Medical Co. v. John D. Parke & Sons. Co., 220 U.S. 373 (1911), and made resale price maintenance subject to the rule of reason under Section 1 of the Sherman Act. 35 state attorneys general have written to Congress asking that it pass S. 2261 which would make resale price maintenance a per se violation of Section 1.  State Attorney General Letter; S. 2261.  The March 31, 2008 post reported that the New York, Michigan and Illinois attorneys general obtained a consent decree under state law against Herman Miller for its resale price maintenance scheme. The May 8,2008 post reported that although the FTC modified Nine West’s consent decree that had prohibited resale price maintenance, the FTC reminded Nine West that it was still subject to state restrictions. This most recent letter further confirms that counselors must be cognizant of state law when they advise clients about the legality of resale price maintenance. It would be prudent for clients to act unilaterally and follow the Colgate doctrine rather than rely on Leegin.



Posted by : Matthew Wild | On : April 14, 2008

The Connecticut Supreme Court recently held that the Connecticut Attorney General may pursue “damages to its general economy caused by violations of the Connecticut Antitrust Act.” State of Connecticut v. Marsh and Mclennan Companies, Inc., SC 17861 (Ct. Apr. 15, 2008). In Marsh, the Connecticut Attorney General claimed that the bid rigging scheme orchestrated by Marsh — in which Marsh decided which insurance companies should win individual contracts and which should submit high bids — caused far reaching harm to the entire Connecticut general economy. Insurance companies that did not comply with Marsh’s demands would be cut-off from all of Marsh’s customers. The Connecticut Attorney General argued that Connecticut was particularly vulnerable to Marsh’s scheme as Connecticut is home to many insurance companies. While the Court recognized that its decision conflicted with Hawaii v. Standard Oil Co. of California, 405 U.S. 251 (1972) (holding that Clayton Act does not confer standing for general economic harm), the Court observed that the relevant language of the Connecticut Antitrust Act differed from the Clayton Act. The Court noted that unlike the Clayton Act, the Connecticut Antitrust Act provides specifically that the attorney general may bring an action as parens patriae “with respect to damages to the general economy of the state or any political subdivision thereof.” The Court recognized that although the state may have difficulty proving those damages, it would be improper to grant a motion to dismiss the Complaint on that basis. A copy of the opinion is attached.

Connecticut v. Marsh



Posted by : Matthew Wild | On : March 31, 2008

On March 21, 2008, Herman Miller, Inc. entered into a consent decree with the attorneys general for New York, Michigan and Illinois to resolve allegations of resale price maintenance over its Aeron chair — an ergonomic desk chair. Filed in the United States District Court for the Southern District of New York, the Complaint alleged that Herman Miller used its Suggested Retail Price policy to enforce a resale price maintenance scheme over the Aeron chairs. According to the Complaint, Herman Miller coerced retailers to agree not to advertise or discount Aeron chairs below Herman Miller’s Suggested Resale Price or a pre-determined discount set by Herman Miller. The states alleged violations of Section 1 of the Sherman Act and the New York, Illinois and Michigan antitrust statutes. Although this action was brought after the Supreme Court in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007), held that resale price maintenance was subject to analysis under the rule of reason (and no longer a per se violation of Section 1), the Complaint pled only a per se violation. The consent decree requires Herman Miller to refrain from resale price maintenance and enforcement of its Suggested Retail Price policy for all of its products. Herman Miller also was required to pay a $750,000 fine. This case serves as a cautionary tale to manufacturers who take too much comfort from Leegin. With aggressive enforcement by state attorneys general and potential litigation by terminated retailers under more stringent state laws, manufacturers would be well advised to act unilaterally under the Colgate doctrine. They are free to terminate discounters unilaterally but should not require retailers to agree to adhere to resale prices as a condition of receiving shipments. Similarly, to reduce the chance that any termination of a discounter could be considered the product of a conspiracy between the manufacturer and other retailers, manufacturers should refuse to listen to complaints from retailers about discounting. The Herman Miller Complaint and Consent Decree are attached. Herman Miller Complaint; Herman Miller Consent Decree



Posted by : Matthew Wild | On : February 22, 2008

February 22, 2008.  Two former Marsh executives (William Gilman and Edward McNenney) were convicted after a 10-month bench trial of bid rigging in violation of New York’s Donnolly Act.  They were acquitted of grand larceny and engaging in schemes to defraud.  These charges stem from Marsh’s scheme of steering business to insurers who paid Marsh the highest contingent commissions.  The case was brought by the New York State Attorney General in New York State Supreme Court, New York County.  In addition to agreeing to refrain from such conduct in the future, Marsh had paid $850 million to settle with the New York Attorney General.  Another executive pleaded guilty to engaging in a scheme to defraud in 2005.