In In re: Mushroom Direct Purchaser Antitrust Litigation, Eastern District of Pennsylvania Judge Thomas N. O’Neill denied a summary judgment motion filed by defendants, who were members of the Eastern Mushroom Marketing Cooperative Inc. Defendants’ motion claimed that as a cooperative, they were shielded from Sherman Act liability by the Capper-Volstead Act. The Court rejected defendants’ argument and held that the Capper-Volstead Act exemption does not apply to EMMC because 1) one of its members was a mushroom distributor and nongrower “who had the power to participate in the control and policymaking of the association through voting,” and 2) its participation in the EMMC cannot be excused as a “de minimus technicality.” The court held that this distributor is “the very type of entity from which Capper-Volstead was designed to protect the interests of farmers/producers.” The court further held that even if EMMC was a Capper-Volstead cooperative, “Capper-Volstead was not intended to create an absolute shield from antitrust liability” and does not shield cooperatives that conspire with nonmembers.
Capper-Volstead Act Does Not Shield Mushroom Cooperative With Non-grower Member
April 12, 2009 – 5:50 pm
Magnesite Price Fixing Case Revived
April 12, 2009 – 5:38 pm
In Animal Science Products Inc. et al. v. China National Metals & Minerals Import & Export Corp.,a new amended complaint revived an antitrust class action against China-based magnesite exporters, accusing the defendants of conspiring to fix the mineral’s prices. The original complaint was dismissed for failure to state a claim under the Sherman Act because the complaint did not allege that any of the defendants brought processed magnesite into the United States. According to the amended complaint, “the defendants have expressly agreed to conspire to fix prices and limit competition” since at least April 2000 and have sold and delivered magnesite and related products to U.S. customers at inflated or fixed prices.”
Bristol-Meyers Agrees to Fine for Concealing Settlement Information
April 10, 2009 – 2:58 pm
Bristol-Meyers Squibb Co. has agreed to pay $2.1 million to settle an FTC claim against it for violating court orders stemming from two earlier antitrust cases. The FTC alleged that Bristol-Meyers issued misleading compliance reports and concealed material information about a proposed 2006 settlement deal with Apotex Corp. to keep a copycat version of the drug Plavix, marketed by Bristol-Meyers and Sanofi-Avenis, off the market. In 2003, Bristol-Meyers paid $150 million to all 50 states, the District of Columbia and four U.S. territories to settle charges that it colluded with other pharmaceutical companies to keep generic versions of its Buspar and Taxol drugs off the market. In 2007, Bristol-Meyers paid $1.1 million to settle allegations by nationwide attorney generals that it misled the states about another proposed patent deal with Apotex. Under both settlements, Bristol-Meyers agreed to notify the states of any patent litigation settlements and to provide states with yearly compliance reports. In this latest case, the FTC alleged that Bristol-Meyers’ misleading statements and failure to fully disclose the terms of the 2006 settlement with Apotex violated the terms of the two earlier settlement agreements.
EC Issues Statement of Objections re: Visa Multilateral Interchange Fees
April 7, 2009 – 2:06 pm
In the continuing saga of the EC’s battle over interchange fees with Visa and MasterCard, the Commission has followed up its tentative settlement with MasterCard with a new Statement of Objections to Visa stating its preliminary view that Visa’s unilateral setting of multilateral interchange fees 1) restrict competition between banks to gain merchant acceptance business and 2) fail to advance technical and economic goals that would benefit consumers.
EC Will Not Challenge MasterCard Fees, For Now
April 2, 2009 – 3:03 pm
EU Competition Commissioner Neelie Kroes announced that the EC will not pursue MasterCard for failing to comply with a 2007 Commission decision that the card network’s cross-border multilateral interchange fees constituted a restrictive business practic. After repealing its cross border fees in June 2008, MasterCard increased other fees in October of that year, raising the Commission’s concerns. Recently, however, MasterCard has implemented a new fee methodology that will result in a substantially reduced average weighted cross-border interchange fee levels compared with that found to be in breach of EU antitrust rules. The Commissioner cautioned that the EC will continue to monitor the implementation of the new methodology.
Heat Stabilizer Cartel Investigation
March 28, 2009 – 1:29 pm
On March 23, 2009, The EC recently sent a Statement of Objections to a number of heat stabilizer companies relating to potential cartel activity. Heat stabilizers are used in PVC products to improve rigidity, appearance, and thermal resistance.
North Sea Shrimp Cartel Investigation
March 28, 2009 – 1:19 pm
On March 24-25, 2009, the EC inspected the premises of companies involved with North Sea shrimp and related products. The inspections occurred in several member states based on cartel concerns. Company names have yet to be released.
EC Inspects French Electricity Company
March 12, 2009 – 1:16 pm
On March 10, 2009, EC and French competition authority officials inspected the electricity company EDF based on concerns that the company may be abusing a dominant market position to rause whole electricity prices in France.