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Overview
Including: Federal Antitrust Agencies; Federal Merger Enforcement; Federal Non-merger Civil Enforcement; State Antitrust Enforcement; Private Antitrust Litigation
The US Department of Justice's Antitrust Division recently announced that the division will change its practice and no longer publicly list the names of individuals excluded (or 'carved out') from the protections afforded by corporate plea agreements. In the statement, the division also announced that in the future it will limit its use of carve-outs to individuals whom it suspects may be guilty of a crime.
The Supreme Court recently rejected a class of millions of Comcast subscribers seeking nearly $1 billion in antitrust damages, holding that at the class certification stage, district courts must conduct a rigorous, merits-based analysis of any damages model that purports to show that damages are "measurable on a class-wide basis through use of a common methodology".
In a unanimous and favourable decision for the Federal Trade Commission (FTC), the Supreme Court has found that the state action immunity doctrine does not shield Phoebe Putney Health System's acquisition of Palmyra Park Hospital from antitrust scrutiny, sending the parties back to FTC administrative litigation to battle over the legality of the hospital merger.
The Department of Justice has filed a lawsuit against Bazaarvoice Inc's acquisition of PowerReviews Inc, despite the transaction's relatively small size and the fact that the parties completed it over six months ago. The suit underscores the federal agencies' increased scrutiny of completed mergers and acquisitions in recent years, as well as the significance of so-called 'hot' documents to investigations.
The Federal Trade Commission has released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act 1976, as well as for Section 8 of the Clayton Act. The new thresholds for Hart-Scott-Rodino notification will become effective on February 11 2013.
A recent line of cases suggest that the cooperative selling of jointly owned intellectual property through a lawful joint venture may enjoy certain antitrust protections, whereas the cooperative selling of singularly owned property through the same joint venture may be open to challenge under Section 1 of the Sherman Act. Companies should monitor such cases closely to assess potential antitrust risks that may arise.
