According to Reuters, the Antitrust Division has opened an investigation into the proposed revenue sharing agreement between Yahoo and Google. Under the agreement, Yahoo will allow Google to put advertisements on its site in exchange for a share of the revenue. Google and Yahoo are reported to have shares of about 80% and 16% respectively of online advertising revenue. The obvious concern is whether the agreement will reduce the incentives for Google and Yahoo to compete and therefore, violate Section 1 of the Sherman Act. Yahoo may have an incentive to raise its prices knowing that under the agreement, it will share in any lost business to Google. The Antitrust Division reportedly has issued civil investigative demands not just to Google and Yahoo but to many other players in the industry. Although not required to do so, Google and Yahoo agreed not to go forward with their collaboration until the Antitrust Division has an opportunity to review the potential effects on competition. The parties have attempted to shrug-off the investigation as expected. But it certainly is not routine. The Antitrust Division does not take issuance of CIDs lightly.
Jul
02
Posted by : | On : July 2, 2008
Jun
30
Posted by : | On : June 30, 2008
According to Reuters, Hewlett Packard Co. received approval today of its $12.6 billion proposed acquisition of Electronic Data Services. Consummation of the transaction would make HP the second largest provider of technology services behind International Business Machines. The transaction is still subject to approval by the EU Competition Commission.
Jun
26
Posted by : | On : June 26, 2008
On June 26, 2008, the Antitrust Division announced that Air France (and KLM Royal Dutch Airlines), Cathay Pacific, Martinair Holland and SAS Cargo Group entered into plea agreements for their participation in the cartel to fix air cargo rates. They agreed to fines of more than $504 million. Air France-KLM agreed to pay $350 million — the second largest fine for an antitrust conviction in U.S. history. Cathay agreed to a $60 million fine; Martinair agreed to a $42 million fine; and SAS agreed to a $52 million fine. So far, the Antitrust Division has obtained $1.27 billion in fines from guilty pleas by cartel participants. This is the largest amount of fines ever imposed as a result of a criminal antitrust investigation. The Antitrust Division’s press release is attached. DOJ Press Release (International Cargo Cartel)
Jun
24
Posted by : | On : June 24, 2008
On June 23, 2008, the Supreme Court granted certiorari in Pacific Bell Telephone Co. v. Linkline Communications, No. 07-512, 2008 WL 2484729 (U.S. June 23, 2008). In a highly unusual public disagreement, the Antitrust Division had filed an amicus curiae supporting certiorari while the FTC had issued a statement opposing certiorari. More on this disagreement is set forth in the June 3, 2008 post.
Jun
21
Posted by : | On : June 21, 2008
On June 9, 2008, the Sixth Circuit rejected a coach’s challenge to the NCAA’s disciplinary rules because he did not allege that the disciplinary rules implicated commercial activity or that he suffered antitrust injury. Bassett v. Nat’l Collegiate Athletic Ass’n, No. 06-5795, 2008 WL 2329755 (6th Cir. June 9, 2008). The Sixth Circuit held that to state a claim under Section 1 of the Sherman Act, “there must be a commercial activity implicated.” Id. at *5. The court further held that “the appropriate inquiry is whether the rule itself is commercial, not whether the entity promulgating the rule is commercial.” Id. (citations omitted). The court then rejected the challenge because the enforcement of disciplinary rules is not a commercial activity. The court also held that plaintiff did not allege antitrust injury. To satisfy this element, the plaintiff had to allege an “anticompetitive effect on the coaching market.” Id. at *7. The coach’s exclusion based on enforcement of the disciplinary rules was insufficient to establish an antitrust injury. It should be noted that the decision contains good dicta explaining when the rule of reason as opposed the per se analysis applies and the nature of the rule of reason analysis.
Jun
15
Posted by : | On : June 15, 2008
On June 2, 2008, the Antitrust Division’s Criminal Section lost a four-day jury trial in the District of Columbia. In United States v. Keitt, 07-CR-041, the defendant was accused of paying a former associate director of the TSA in exchange for favorable treatment in overseeing and administering his company’s contract. The jury acquitted in less than one day. This is the fifth major blow to the Criminal Section within the last year. The March 15, 2008 post discusses the Criminal Section’s four other defeats within the last twelve months — three acquittals after trial and the denial of extradition by the U.K. House of Lords.
Jun
09
Posted by : | On : June 9, 2008
On June 6, 2008, Inova Health System announced that it is has abandoned its merger plans with Prince William Health Systems. The FTC had commenced an action in the United States District for the Eastern District of Virginia on May 12, 2008, in which it sought a preliminary injunction to block the merger during the pendency of its adminstrative proceeding. After the motion for a preliminary injunction had been submitted, the hospitals’ abandoned their merger plans. Abandoning merger plans after litigating through a preliminary injunction hearing is rare. The parties must have incurred millions of dollars in legal fees and a decision on the injunction was due in only a month. If the hospitals had prevailed in district court and merged, it is possible that the FTC would have dropped its administrative challenge. The administrative proceedings in this case also were unusual because the FTC appointed one of its Commissioners (Thomas Rosch) to act as the administrative judge.
Jun
06
Posted by : | On : June 6, 2008
On June 5, 2008, the Antitrust Division issued a press release advising that it was closing its investigation into the potential anticompetitve effects from a joint venture between SABMiller plc (Miller) and Molson Coors Brewing Company to combine their operations in the United States. Although it did not provide any quantitative data, the Antitrust Division stated that based on information it received during its eight-month investigation from a wide-range of industry participants, it concluded that no adverse effect on competition would arise from the combination. Indeed, the Antitrust Division credited the parties’ efficiencies claims — noting that they were “verifiable and specifically related to the transaction and include large reductions in variable costs that are likely to have a beneficial effect on prices.” Thus, they met criteria set forth in the Merger Guidelines. Clearance of a merger based in large part on efficiencies is unusual. As a general matter, efficiencies are used by the parties to explain that there is no anticompetitive motive for the merger. Here, the parties were able to obtain much more credit for their efficiencies. Where beer drinkers are concerned, however, Antitrust Division did not note whether there would be a decrease in quality. Indeed, it is possible that the beer companies might rationalize brands to obtain efficiencies. Do loyalists to, for example, Molson Dry, have anything to fear? The Antitrust Division’s press release is attached. DOJ Press Release (Miller/Coors)
Jun
04
Posted by : | On : June 4, 2008
On June 4, 2008, Electronic Arts (video game maker) gave the FTC an extension of time under the HSR Act to review the potential competitive effects of its $2 billion proposed acquisition of Take-Two (maker of Grand Theft Auto). Under the agreement, EA must give the FTC 45 days’ notice of its intention to close. Parties often grant the Antitrust Division and FTC more time to review their transactions with the hope of convincing the agencies not to challenge the merger or to allow them to negotiate a remedy.