ABA Section of Antitrust Law Social Media

The following was posted by Kathleen Foote on AT-State, the email discussion list of the State Enforcement Committee of the ABA Section of Antitrust Law.

On en banc rehearing of California ex rel. Harris v. Safeway, Inc., the Ninth Circuit on July 12, 2012 held that an agreement among supermarkets to share profits during a strike was not immune from antitrust attack under the non-statutory labor exemption, but also held that it was not subject to quick look (or per se) condemnation. The panel had previously held that the agreement was not exempt, and moreover was unlawful under quick look analysis. The case arose over a written agreement among the four leading Southern California supermarket chains, made in preparation for the lengthy 2003-04 strike/lock-out. Under it, they secretly pooled and shared their profits during the strike, in order to assure that each chain’s financial position would remain stable regardless of actual performance in the marketplace. The California Attorney General’s Sherman Act filed suit to enjoin the profit-pooling, contending that the agreement on its face eliminated or at least reduced each chain’s incentives to compete vigorously for business.
See
http://www.latimes.com/business/la-fi-grocers-antitrust-20110713,0,5031453.story

Matt Hammond to Communications & Digital Technology Industries Committee:

On Friday, June 17, 2001, the Department of Justice issued an updated Antitrust Division Policy Guide to Merger Remedies. From the press release:

The updated policy guide highlights the role of the Antitrust Division’s recently created Office of the General Counsel, which will be principally responsible for enforcing division consent decrees. The updated policy guide also reflects the changes in the merger landscape and the lessons the division has learned from the remedies it has entered into since the issuance of the original guide in 2004, ensuring that it accurately details the division’s merger remedy practices.

The policy guide states that effective merger remedies typically include structural or conduct provisions, or a combination. In horizontal merger matters, the division continues to rely predominantly on structural remedies, sometimes in combination with conduct remedies. However, the division has found that in many vertical transactions tailored conduct relief can prevent competitive harm while allowing the merger’s efficiencies to be realized.
The key principles the Antitrust Division applies in analyzing merger remedies remain the same:
· Effectively preserving competition is the key to an appropriate merger remedy;
· Remedies should focus on preserving competition, not protecting individual competitors; and
· A remedy must be based on careful application of legal and economic principles to the particular facts of a specific case.
Press Release: http://www.justice.gov/atr/public/press_releases/2011/272365.htm
Policy Guide to Remedies: http://www.justice.gov/atr/public/guidelines/272350.pdf

The following note was originally posted on AT-TEI, the email discussion list of the Transportation and Energy Industries Committee of the ABA Section of Antitrust Law and is provided as an example of the timely updates provided by the Section and its Committees.  In addition to email discussion lists, the Section and its Committees have established 18 Facebook pages, 28 LinkedIn groups and subgroups, and 13 Twitter accounts (See http://bit.ly/g7ELq4).  The sites will only become more useful as more members contribute, so please visit the Section’s various social media sites, http://bit.ly/g7ELq4, and participate.

ABA Section of Antitrust Law

Transportation & Energy Industries Committee

Antitrust Law Development

U.S. Court of Appeals Dismisses Claims Oilcos Conspired with OPEC

On February 8, 2011, the Fifth Circuit Court of Appeals affirmed dismissal of consolidated gasoline retailer class actions that challenged foreign-owned petroleum companies with conspiring with OPEC to fix crude oil and gasoline prices in the U.S.  Based on the political question and act of state doctrines, the decision holds that U.S. courts do not have jurisdiction over these claims.  This ruling is consistent with prior federal court decisions involving OPEC and with the Justice Department’s longstanding policy not to bring an antitrust enforcement action against OPEC.

The retailers’ complaints all target CITGO Petroleum, which is owned by Venezuela’s national oil company, and others also name Saudi Aramco, Lukoil, and companies related to these nationally-owned petroleum companies.  They variously allege that the defendants conspired with OPEC to limit crude production and restrict the operating capacity of refineries, some located in the U.S., in order to fix crude and refined products prices in the U.S., where the plaintiff-retailers operate.  Although one of the complaints apparently attempted to avoid reference to the OPEC agreements among sovereign nations, the district court read the complaints as challenging “decisions of sovereign states to restrict the production of crude oil within their own territories.”

The political question doctrine excludes from federal court jurisdiction controversies that involve the policy choices that the Constitution reserves for the political branches of the government.  Holding that the political question doctrine precluded jurisdiction in this case, the Fifth Circuit relied principally on two factors.  First, the text of the Constitution gives responsibility for regulation of foreign commerce to the Congress and foreign relations to the President.  But this lawsuit asks the judiciary “to reprimand foreign nations and command them to dismantle their international agreements,” certainly a foreign policy question committed to the political branches.  Second, the court observed, the courts do not have appropriate standards to address the issues raised by this lawsuit:  “The Sherman and Clayton Acts are decidedly inadequate to provide judicially manageable standards for resolving such momentous foreign policy questions.”

Similarly, the act of state doctrine provides that U.S. courts will not decide the legality of the actions of a foreign government in its own territory.  The Fifth Circuit held that this lawsuit asks the court to review decisions of other governments about how they will exploit their own natural resources, which the judiciary cannot address.

Addressing the allegation that one way in which the defendants maintained higher U.S. products prices was to restrict refinery output, the court held that this conclusory allegation, unsupported by additional facts, could not support an independent conspiracy based on refining agreements.  The Supreme Court’s 2007 Twombly decision requires that antitrust plaintiffs allege enough factual detail to provide “plausible grounds to infer an agreement.”

Read more from the Transportation & Energy Industries Committee at http://www.abanet.org/dch/committee.cfm?com=AT310800&edit=0

The American Bar Association’s Section of Antitrust Law (the “Section”) is the leading professional organization for those interested in the fields of antitrust and competition law, trade regulation, consumer protection and economics.  

The Section and its committees have launched a social media presence to foster greater interactivity with the membership and promote the Section leadership’s transparency and accessibility.  The Section is now on social media such as Facebook, LinkedIn, and Twitter.  Most of the Section’s committees are now using one or more of these forms of social media and several committees are using all three.  

Links to the presence on LinkedIn are provided below:

 Section of Antitrust Law http://www.linkedin.com/groups?gid=3234362&trk=anetsrch_name&goback=.gdr_1280922599439_1

Section of Antitrust Law Social Media Working Group http://www.linkedin.com/groups?mostPopular=&gid=3484695

Antitrust Source http://www.linkedin.com/groups?mostPopular=&gid=2995793 

Business Torts & Civil RICO Committee http://www.linkedin.com/groups?mostPopular=&gid=3569221

Cartel & Criminal Practice http://www.linkedin.com/groups?gid=2914919&trk=anetsrch_name&goback=.gdr_1280925173662_1

Civil Practice and Procedure http://www.linkedin.com/groups?mostPopular=&gid=3432174.

Communications & Digital Technology Industries http://www.linkedin.com/groups?mostPopular=&gid=3484866

Consumer Protection http://linkd.in/fdcfR5

Consumer Protection Conference http://linkd.in/gikBwI

Corporate Counseling http://www.linkedin.com/groups?mostPopular=&gid=3624609

Distribution & Franchising http://www.linkedin.com/e/qy5ai7-geq6um1q-6y/vgh/3494773/

Economics http://www.linkedin.com/groups?mostPopular=&gid=3554139

Federal Civil Enforcement http://www.linkedin.com/groups?mostPopular=&gid=3507064

Healthcare & Pharmaceuticals http://www.linkedin.com/groups?gid=3432337&trk=anetsrch_name&goback=.anh_3234362_1285784670442_1

Insurance & Financial Services http://www.linkedin.com/groups?mostPopular=&gid=3054445

Intellectual Property http://www.linkedin.com/groups?mostPopular=&gid=3515325

International http://www.linkedin.com/groups?mostPopular=&gid=3596582

Joint Conduct http://www.linkedin.com/groups?about&gid=3678812&trk=anet_ug_grppro

M&A http://www.linkedin.com/groups?mostPopular=&gid=3556324

Pricing Conduct http://www.linkedin.com/groups?mostPopular=&gid=3402558

Privacy and Information Security http://www.linkedin.com/groups?mostPopular=&gid=3473681

Trade, Sports and Professional Associations http://www.linkedin.com/groups?mostPopular=&gid=3661955

Trial Practice http://www.linkedin.com/groups?mostPopular=&gid=3551024

Unilateral Conduct http://www.linkedin.com/groups?mostPopular=&gid=3664910

Young Lawyers Representatives http://www.linkedin.com/groups?gid=3476514&trk=anetsrch_name&goback=.anh_3234362_1285784670442_1

Antitrust Masters Course http://www.linkedin.com/groups?gid=3194181&trk=anetsrch_name&goback=.gdr_1280925003047_1

#antitrust #ABASAL

The note below was posted on the listserve of the International Committee of the Section of Antitrust Law, American Bar Association, and is an example of the timely reports provided to members.

I. Today, the European Commission (Commission) fined 11 airlines a total

of EUR 799,5 million for fixing prices in their cargo business. These

carriers coordinated their action on surcharges for fuel and security

without discounts over a six year period. The cartel arrangements

consisted of numerous contacts between airlines, at both bilateral and

multilateral level, covering flights from, to and within the EEA. Airlines

providing airfreight services primarily offer the transport of cargo to

freight forwarders, who arrange the carriage of these goods including

associated services and formalities on behalf of shippers.

At the same time, the Commission allegations of collusion on two other

surcharges and regarding freight rates in the Statement of Objections have

been dropped from the case for insufficient evidence. The Commission also

dropped charges against another 11 carriers and one consultancy firm which

had previously received the Statement of Objections for the same reason.

All carriers were granted a 50% reduction on sales between the EEA and

third countries in order to take into account the fact that on these

routes part of the harm of the cartel fell outside the EEA. The Commission

increased the fine for SAS by 50% for its previous involvement in a cartel

in the airline sector. All carriers received a reduction of 15% on account

of the general regulatory environment in the sector which can be seen as

encouraging price coordination. Four carriers were also granted a 10%

reduction for limited participation in the infringement. As the fines on

two companies would have exceeded the legal maximum of 10% of their 2009

turnover, the amount (before possible leniency considerations) was reduced

to this level.

Five carriers applied for a reduction claiming inability to pay the fine.

However, none of the applications met the conditions for a reduction.

II. A couple of weeks ago, there were a few interesting decisions/opinions

regarding parent liability for cartels. The General Court held in T-24/05,

Alliance One and Others vs. Commission (i) that liability cannot be

imposed on a parent company that has pure financial interests (see para

195 seq). In this respect see also para 67 of the Opinion of the General

Advocat Kokott dated ? 23.4.2009 in C-97/08? P, Akzo Nobel NV ua vs

Commission, decision by the ECJ dated 14 September 2010.? (ii) Regarding

Joint Ventures the Court held that where an undertaking is under the joint

control of two or more other undertakings or persons, those undertakings

or persons are by definition able to exercise decisive influence over it.

That is not enough, however, to enable them to be held liable for the

infringement of the competition rules committed by the undertaking which

they control jointly, because such liability also requires fulfillment of

the condition concerning the actual exercise of decisive influence. If

those conditions are fulfilled, it would be possible to hold the various

undertakings or persons which exercise joint control liable for the

unlawful conduct of their subsidiary, as the judgment in Case T-314/01

Avebe v Commission [2006] ECR II-3085 illustrates. In that case, the

General Court upheld a Commission decision attributing to two companies,

each with a 50% shareholding in a subsidiary and having joint management

power in the commercial management of the subsidiary, liability for the

unlawful conduct of that subsidiary. If it transpired that, in reality,

only one of the undertakings or persons holding joint control in fact

exercises decisive influence over the conduct of their subsidiary, or if

other specific circumstances were to justify it, the Commission would be

able to hold only that undertaking or person jointly and severally liable,

with its subsidiary, for the infringement committed by the subsidiary.

III. Regarding a linked subject matter, Advocate General Yves Bot stated

on 26 October 2010 in C-352/09 P, ThyssenKrupp vs Commission, that

competition law is for everyone mandatory law, the application of which

cannot be excluded by contractual agreements. Hence, an agreement between

two parties declaring that the application of competition rules should be

differ from the common rules should be void regarding the liability

towards the Commission.

For additional information please find

1. Commission Press release at

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1487&format=HTML&aged=0&language=EN&guiLanguage=en.

2.Judgment of the General Court T-24/05 Alliance One vs

Commission dated ? 27 October 2010, ? at

http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?lang=en&num=79898972T19050024&doc=T&ouvert=T&seance=ARRET

3.Opinion of the Advocate General in C-352/09 P, ThyssenKrupp vs

Commission dated 26 October 2010 at

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&jurcdj=jurcdj&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALLTYP&numaff=&ddatefs=20&mdatefs=10&ydatefs=2010&ddatefe=27&mdatefe=10&ydatefe=2010&nomusuel=&domaine=&mots=&resmax=100&S

ubmit=Rechercher (no English version available).

Kind regards,

______________________________________

Christina Hummer

Dr. iur., LL.M. (NYU)

Solicitor (England & Wales) / Attorney-at-Law (New York)

Saxinger Chalupsky & Partner

Rechtsanwälte GmbH

B-1040 Brussels, Rue de Pascale 22

Tel +32 2 230 78 00

Fax +32 2 230 78 10

The American Bar Association’s Section of Antitrust Law (the “Section”) is the leading professional organization for those interested in the fields of antitrust and competition law, trade regulation, consumer protection and economics.

 The Section and its committees have launched a social media presence to foster greater interactivity with the membership and promote the Section leadership’s transparency and accessibility.  The Section is now on social media such as Facebook, LinkedIn, and Twitter.  Most of the Section’s committees are now using one or more of these forms of social media and several committees are using all three. 

Links to the presence on Facebook are provided below: 

Section of Antitrust Law http://www.facebook.com/pages/ABA-Section-of-Antitrust-Law/154356664578926

Civil Practice and Procedure http://www.facebook.com/pages/ABA-Antitrust-Civil-Practice-Procedure-Committee/156462017703549 

Communications & Digital Technology Industries http://www.facebook.com/pages/ABA-Antitrust-Communications-Digital-Technology-Industries-Committee/136922266352197 

Consumer Protection  http://on.fb.me/htU3ZZ

Consumer Protection Conference  http://on.fb.me/f4izBo

Exemptions & Immunities Committee http://on.fb.me/hlINvd

Healthcare & Pharmaceuticals http://www.facebook.com/pages/ABA-Antitrust-Health-Care-and-Pharmaceuticals-Committee/159399014086798

Insurance & Financial Services http://www.facebook.com/home.php#!/pages/Insurance-Financial-Services-Committee-ABA-Section-of-Antitrust-Law/292126441578

Intellectual Property http://www.facebook.com/home.php#!/pages/ABA-Antitrust-Intellectual-Property-Committee/121247044597952?ref=ts

Joint Conduct http://www.facebook.com/home.php#!/pages/Joint-Conduct-Committee-ABA-Section-of-Antitrust-Law/264309501720?ref=ts

M&A http://www.facebook.com/home.php#!/pages/Mergers-Acquisitions-Committee-ABA-Section-of-Antitrust-Law/217540877867?ref=ts

Pricing Conduct http://www.facebook.com/home.php#!/pages/ABA-Antitrust-Pricing-Conduct-Committee/230773199675?ref=ts

Privacy and Information Security http://www.facebook.com/pages/ABA-Antitrust-Privacy-Information-Security-Committee/154288374604175

Public Education and Oral History http://www.facebook.com/pages/edit/?id=159601900730712&sk=basic#!/pages/ABA-Antitrust-Public-Education-and-Oral-History-Committee/159601900730712

Trial Practice http://www.facebook.com/pages/ABA-Antitrust-Trial-Practice-Committee/159544357401054?created#!/pages/ABA-Antitrust-Trial-Practice-Committee/159544357401054

Unilateral Conduct http://www.facebook.com/pages/Unilateral-Conduct-Committee-ABA-Antitrust/157952330908526

Antitrust Masters Course http://www.facebook.com/home.php#!/pages/ABA-Section-of-Antitrust-Law-Antitrust-Masters-Course/100325566689209?ref=mf

Also see:

Young Lawyers Representatives http://www.facebook.com/pages/ABA-YLD-Antitrust-Committee/116049148425309  

The Section is now on Facebook, LinkedIn, and Twitter. Most of the Section’s committees are now using one or more of these forms of social media and several committees are using all three. The Section’s increased use of social media is not limited to committee activities; a Facebook events page and LinkedIn Group were set up for our successful Masters Course.

Social media allows us to provide you with additional value, including multimedia content, such as videos. For example, you can see another side of the Section of Antitrust Law Leadership as it kicked off the 2010 to 2011 year in a spoof video shot at the Marine Corps Air Station Miramar Officer’s Club.

Each month, you can help identify the most innovative use of social media to accomplish the Section’s goals by posting a note on AT-Conversation, the Section’s Facebook page, or the Section’s LinkedIn Group before the end of the first week of the next month. You do not need to wait until the end of the month; we encourage you to post a note when you see something innovative.

In October:

· The Antitrust Source set up its Committee page to display the AT-CP Daily Digest Twitter feed

· The Civil Practice & Procedure Committee converted to the HTML listserv format and embedded logos for Facebook, LinkedIn, and Twitter in their communications and provided a live Twitter feed during their open house program

· The Insurance & Financial Services Committee’s posted a video of Elizabeth Warren on its Facebook page

· The Communications & Digital Technology Industries Committee started a discussion in the Social Media working group’s LinkedIn subgroup about content that is appropriate for posting

· The Section expanded its social media presence to Twitter, Facebook, Tumblr, and LinkedIn, providing umbrella sites linking the Committees’ and Activities’ social media sites

For the Section, anyone who:

· is a member of AT-Conversation, the Section’s general listserv, can post on AT-Conversation by sending an email to AT-Conversation@mail.abanet.org

· “likes” the Section’s Facebook page can post an update on the Section’s Facebook page

· is a member of the Section’s LinkedIn Group can post an update on the Section’s LinkedIn Group

Note that the same basic principles apply to the social media used by the Section’s Committees.

The Section and its Committees have established 15 different Facebook pages, 25 LinkedIn groups and subgroups, 11 Twitter accounts and 3 blogs.

In addition to the Section’s use of Facebook, LinkedIn, and Twitter, social media is currently being used by:

· the Section’s Social Media Working Group

· the Section’s Committees for:

o the Antitrust Source

o Antitrust-Consumer Protection Law Digest

o Business Torts & Civil RICO

o Cartel & Criminal Practice

o Civil Practice & Procedure

o Communications & Digital Technology Industries

o Consumer Protection

o Corporate Counseling

o Distribution & Franchising

o Economics

o Federal Civil Enforcement

o Healthcare & Pharmaceuticals

o Insurance & Financial Services

o Intellectual Property

o International

o Joint Conduct  

o Mergers & Acquisitions

o Pricing Conduct

o Privacy & Information Security

o Public Education & Oral History

o Trade, Sports and Professional Associations

o Trial Practice

o Unilateral Conduct

o Young Lawyer Division

Most of these activities were launched within the last month, and in addition the Section leadership, which has been instrumental in launching and supporting this effort, many of the Section’s Young Lawyer Representatives have played a key role in expanding the Section’s social media presence. A current list of the social media presence will always be available on the Section’s Tumblr blog, and a current list will soon available through a page that will be accessible from the Section’s homepage. A current list of the social media presence will always be available aton the website of the Section’s Technology and Financial Resources Task Force and on the Section’s Tumblr blog

Technology and Financial Resources Task Force

J. Anthony Chavez, Co-Chair

janthonychavez@gmail.com

David H. Evans, Co-Chair

devans@chadbourne.com

Benjamin D. Bleiberg, Member

bbleiberg@chadbourne.com  

Peter S. Breslauer, Member

pbreslauer@mmwr.com

Matthew Bye, Member

matthewbye@google.com

Margaret E. Guerin-Calvert, Member 

mguerin-calvert@compasslexecon.com 

Adam T. Severt, Member 

adam.severt@usdoj.gov

Mozelle W. Thompson, Member

mozellethompson@aol.com

Amanda L. Wait, Member 

await@hunton.com 

#Antitrust #ABASAL #compliance

The Corporate Counseling Committee is pleased to announce the publication of Antitrust Compliance: Perspectives and Resources for Corporate Counselors, 2nd Edition. The official publication date is October 31, 2010, but the book is available for pre-order now on the ABA website.

This book will prove to be a great resource. It contains new and updated chapters to aid outside and in-house counsel charged with developing or updating their clients’ antitrust compliance program. It provides detailed essays exploring specific compliance issues from the perspective of experienced practitioners and antitrust compliance manuals, presentations and other materials that can be customized for use in actual corporate employee training situations.

The book also includes a CD-ROM containing most of the compliance presentations and other resources for ease in adapting that information to your specific circumstances.

The Committee would like to thank all of the contributors, drafters, and editors of Antitrust Compliance. Particular acknowledgment goes to Paula Render, former vice chair of the Committee, who guided the work from beginning to end. Special thanks also to Brian Henry, a former co-chair of the Committee, who held Paula’s role for the 1st edition of the book and made substantial contributions to this edition.

Log on now

(http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5030553) to purchase your copy. The price is $179.00 for Section of Antitrust Law members and $199.99 for non-members. In addition, there are discounts for purchasing multiple copies for your organization.

#Antitrust #ABASAL  #sports #trade associations

The Trade, Sports and Professional Associations (TSPA) Committee of the ABASection of Antitrust Law has started a LinkedIn group (http://www.linkedin.com/groups?mostPopular=&gid=3661955), becoming the 23rd LinkedIn group set up by the Section and its Committees. The Section is now on social media such as Facebook, LinkedIn, and Twitter.  

The TSPA Committee supports all aspects of representing and counseling trade and professional associations and sports organizations on antitrust and competition law issues.

We encourage you to join the Section and this Committee and let one of us know how you would like to get involved.

David L. Meyer, Chair

Frank Hinman, Vice-Chair

Karin Moore, Vice-Chair

Dorothy Raymond, Vice-Chair

Christine Sommer, Vice-Chair

The American Bar Association’s Section of Antitrust Law (the “Section”) is the leading professional organization for those interested in the fields of antitrust and competition law, trade regulation, consumer protection and economics.

The Section and its committees have launched a social media presence to foster greater interactivity with the membership and promote the Section leadership’s transparency and accessibility.  The Section is now on social media such as Facebook, LinkedIn, and Twitter.   Most of the Section’s committees are now using one or more of these forms of social media and several committees are using all three.  For a complete list of the Section’s social media see http://abasal.tumblr.com.

http://www.abanet.org/antitrust/at-bb/10/AT01021.pdf

(Source: )