Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Baker Botts LLP

As vertical issues continue to attract attention in the world of antitrust, the U.S. Supreme Court’s decision in Ohio v. American Express was a long-awaited milestone.  The outcome of the decision was not surprising—many commenters had predicted that a Court that has generally been skeptical of antitrust plaintiffs would uphold the U.S Court of Appeals for the Second Circuit’s decision in favor of American Express—but a few features of the decision were noteworthy.

Recall that the case involved Amex’s use of non-discriminatory provisions, or “NDPs,” that prevent a merchant that accepts Amex cards from engaging in strategic behavior to steer customers toward use of a different payment card that might carry a lower transaction fee for the merchant. At issue was whether the NDPs constituted unreasonable restraints that suppressed interbrand competition by preventing merchants from favoring lower-cost payment methods by customers. Continue reading “Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling”

Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements

dojenrdThe Justice Department’s (DOJ) policing of class-action settlements in recent months has the potential to serve as a significant check on the plaintiffs’ bar. While DOJ has had the right to express its view of proposed class-action settlements since 2005 pursuant to the Class Action Fairness Act (CAFA), only recently has the department’s Consumer Protection Branch exercised its authority to oppose such settlements. Washington Legal Foundation certainly applauds these efforts to intervene in and oppose frivolous, unfair, or inequitable class settlements, but what DOJ has done recently in several environmental citizen suits may be even more significant. Continue reading “Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements”

Thanks to the Court, Justice Done in AT&T/Time Warner Merger Challenge

DOJOur nation’s federal prosecutors recommend themselves as dispassionate champions of the law. As then-Attorney General Robert Jackson put it: “Although the government technically loses a case, it has really won if justice has been done.” The government, he said, should seek “truth and not victims.” The United States’ top lawyers repeat these sentiments often.

For the Justice Department’s Antitrust Division, seeking “truth and not victims” means prosecuting cases that benefit consumers. And it means winning with strong economic analysis rather than with legalistic maneuvering or chicanery.

By this measure the government’s lawsuit to block the merger of AT&T and Time Warner was a shambles. Continue reading “Thanks to the Court, Justice Done in AT&T/Time Warner Merger Challenge”

DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC.

*Ed. Note: This is Greg’s inaugural commentary as a featured expert contributor. Greg is a member of WLF’s Legal Policy Advisory Board, and has extensive experience in law enforcement as a former United States Attorney and Deputy General Counsel of the FBI. He also served five terms in the Nevada legislature, where he was Chairman of the Senate Judiciary Committee.

Last month, in several speeches delivered in New York City to separate groups of white collar defense lawyers, Deputy Attorney General Rod Rosenstein announced a new U.S. Department of Justice (DOJ) policy concerning the proper coordination of penalties in corporate criminal cases.  This new policy, implemented by way of a new section in the U.S. Attorneys’ Manual (and a tweak to an existing provision), seeks to address the problem of “piling on” of multiple penalties by multiple enforcement entities in the context of corporate resolutions. Continue reading “DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions”

Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS “Apple v. Pepper” Amicus Brief

app storeEd. Note: With this post we welcome WLF’s newest attorney, Corbin K. Barthold, as a WLF Legal Pulse author.

Many legal disputes pit the affective and sometimes utopian thinking of lawyers against the statistical and efficiency-oriented thinking of economists. The archetypal lawyer subscribes to the maxim ubi jus ibi remedium—“where there is a right, there is a remedy.” The archetypal economist is more likely to agree with Oliver Wendell Holmes, Jr.’s view that “such words as ‘right’ are a constant solicitation to fallacy.”

In antitrust cases, at least, the Supreme Court often sides with the economists. Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), is a good example. It says that only the direct purchaser of an abusive monopolist’s goods or services may sue the monopolist for violating the antitrust laws. Someone who buys a product only indirectly—someone who, say, buys from a retailer who buys from an antitrust-law-violating manufacturer—is out of luck. She may not sue even if the retailer incorporated some of the supracompetitive wholesale price into the retail price. It would be too difficult, Illinois Brick concludes, to accurately apportion damages among distributers, retailers, and consumers. Continue reading “Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS “Apple v. Pepper” Amicus Brief”

Tronox/Cristal Merger Fight Highlights the FTC/DOJ Divide in U.S. Merger Control Proceedings

06633 - Royall, M. Sean ( Dallas )Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Justin Epner, an Associate in the firm’s Washington, DC office.  The authors would like to thank Jasper Hicks, who is an Associate in Gibson Dunn’s Denver, CO office, for his substantial contributions to this post.

In early 2017, Mississippi-based titanium dioxide (TiO2) pigment producer Tronox Limited (“Tronox”) agreed to purchase the TiO2 business of one of its rivals, Saudi Arabian producer Cristal (“Cristal”).  Alleging a horizontal competitive effects theory, the Federal Trade Commission (FTC) voted in December 2017 to challenge the deal in its internal administrative court.  Roughly two months after the FTC initiated the administrative challenge, however, the litigation took an interesting and unusual turn—Tronox filed a federal lawsuit of its own against the Commission in the Northern District of Mississippi.  Continue reading “Tronox/Cristal Merger Fight Highlights the FTC/DOJ Divide in U.S. Merger Control Proceedings”

Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?

DOJAsbestos—the heat-resistant, naturally occurring silicate mineral—disappeared from the manufacturing marketplace over 40 years ago. In those four decades, litigation involving asbestos has been as impervious to resolution as the mineral itself is to high temperatures. When we’ve asked mass-tort litigators “what’s the next asbestos?” some have answered—not entirely in jest—”asbestos.”

The reasons for asbestos litigation’s endurance are many, but defendants, judges, and public officials have started to spotlight the role of bankruptcy trusts and plaintiffs’ lawyers’ use of them as both shield and sword. Numerous voices, including state attorneys general and Members of Congress, have called on the U.S. Department of Justice (DOJ) to investigate misconduct and potential fraud. DOJ has a number of potent oversight and enforcement options at its disposal, some of which are discussed below. Continue reading “Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?”