The plaintiffs in In re: ATM Fee Antitrust Litigation have responded to the Northern District of California court’s grant of summary judgment to the defendants’ on their plaintiffs’ per se theory by amending the complaint to allege a rule of reason violation. The complaint alleges that the banks participating in the Star ATM network have jointly set the interchange fee paid by the bank issuing the ATM card to the ATM owner that processes a transaction. This fee is sometimes passed on to the cardholder, allegedly in some cases with a markup. Previous challenges to credit card interchange fee setting have been decided under the Rule of Reason because of the pro-competitive aspects of the joint venture forming the card network.
EU Approves Dutch TV/Radio Regulatory Proposal
February 12, 2009 – 5:00 pm
The EC has approved a Dutch regulatory proposal intended to allow alternative radio and TV signals to compete more effectively with those offered by the Netherlands’ largest cable operators.
French Competition Counsel Voids IPhone Exclusive Deal
February 4, 2009 – 2:39 pm
Update February 2009: An appellate court in Paris has upheld the decision that Orange SA may not be the exclusive service provider for Apple’s I-Phone in France. The decision conflicts with those in other countries, and Orange SA plans to seek review before the French high court.
As it has throughout the world, Apple reached an exclusive deal to sell phone service for the I-Phone for use in France. The French deal involved a 5 year exclusive with Orange SA. The French Competition counsel held that 5 years was too long and ordered that other carriers be permitted to offer service with an I-Phone. The investigation is on-going, but French authorities have stated that exclusive deals for future versions of the I-Phone should be limited to 3 months.
Freight Transport Price Fixing Case Dismissed
February 3, 2009 – 12:06 pm
Judge William Duffey, Northern District of Georgia, dismissed an antitrust complaint under Twombly for failing to sufficiently allege concerted activity among a group of freight transportation carriers. The court argued that allegations that merely allow one to imagine that a “conspiracy may have occurred” were insufficient because “imagination is not enough.” More specifically, the court held that parallel conduct and making price information public were alone insufficient to state a claim.
Third Circuit Remands Plastics MDL on Class Certification Issue
February 3, 2009 – 12:01 pm
Update September 2010: On remand, the district court denied class certification.
Following its decision in the recent hydrogen peroxide case, the Third Circuit remanded In Re: Plastic Additives Antitrust Litigation for additional consideration as to whether common issues in fact predominate.
Attempt to Monopolize Resin Industry Case Goes Forward
February 3, 2009 – 11:54 am
Judge Joan Lefko, Northern District of Illinois, dismissed a tying claim, but allow other antitrust allegations made by DSM Desotech Inc. against 3D Sytems Corp. to go forward in a private antitrust action involving the stereolithography machine industry. The machines use lasers to cut objects from resin. DSM argues that 3DS has tried to exclude it from the resin market by discouraging customers from using non-3DS-approved resin in its machines, designing new machines to work only with approved resin, and discouraging the use of older machines. Given that only three competitors currently compete in the resin market, and 3DS’s share is about 50%, the court permitted attempted monopoly claims to go forward. The case also involves patent infringement claims brought by DSM.
Undersea Cable Manufacturers Investigated by EU
February 3, 2009 – 11:37 am
The EC has confirmed late January unannounced inspections at the premises of unamed high voltage undersea cables manufacturers.
DOJ & EC Approve Sun Microsystems/Oracle Merger
February 1, 2009 – 1:45 pm
Update January 2010: The EC agreed to let the merger move forward without conditions.
Update November 2009: The EC issued a statement of objections to the merger expressing concern over the fate of Sun’s open source database. The DOJ reiterated its position that sufficient competitive threats existed in the market to prevent anticompetitive effects from flowing from the merger.
Update August 2009: The DOJ has announced that it has closed its investigation and will permit the merger to go forward. The parties are still awaiting word from the EC
The investigations are expected to be resolved by September.
Class Complaints Challenge Walmart-Netflix Deal
January 27, 2009 – 12:50 pm
A number of class action complaints have been filed throughout the country challenging a 2005 agreement between Walmart and Netflix in which the retailer agreed to abandon the on-line DVD rental business and transfer its customers to Netflix, and in turn, Netflix agreed not to sell movies on-line and to refer its customers to Walmart for movie purchases. The plaintiffs contend that the agreement unlawfully divides the market. Walmart claims that it independently decided to exit the on-line rental market before entering the the deal with Netflix, and thus the arrangement is not anticompetitive.
EC Investigates Standard & Poor’s
January 23, 2009 – 5:03 pm
The EC has begun investigating Standard & Poor’s conduct towards users of International Securities Identification Numbers (ISINs), specifically forcing financial institutions, such as banks and investment funds, to pay licensing fees for the use of US ISIN codes in their own databases.