2013 National Lawyers Convention
Is the antitrust enforcement authority of the Federal Trade Commission, proceeding under the FTC Act, broader than that of other litigants – whether private plaintiffs or the Department of Justice – proceeding under the Sherman Act? Section 5 of the FTC Act prohibits “unfair methods of competition in or affecting commerce” – language which some have interpreted as equivalent in scope with parallel provisions of the Sherman Act. As recent Supreme Court decisions have appeared to narrow the scope of the Sherman Act, however, the FTC has moved in the opposite direction. In addition to the Valassis and U-Haul “invitation to collude” cases (a cause of action not recognized under the Sherman Act), the FTC has pursued so-called “Sherman Act plus” antitrust actions against N-Data and Intel. Is this seeming divergence between FTC Act and Sherman Act enforcement authority legally defensible? What are its broader policy implications?
The Corporations, Securities & Antitrust Practice Group hosted this panel on "'New' Antitrust Enforcement Authority under the FTC Act" on Thursday, November 14, during the 2013 National Lawyers Convention.
Corporations: 'New' Antitrust Enforcement Authority under the FTC Act: Defensible Statutory Interpretation or Plumbing the Penumbras?
12:00 p.m. – 2:00 p.m.
- Mr. David A. Balto, David A. Balto Law Offices; Program Fellow, Health Policy Program, New America Foundation
- Mr. Thomas O. Barnett, Partner, Covington & Burling LLP
- Hon. F. Scott Kieff, Commissioner, U.S. International Trade Commission
- Hon. Maureen, K. Ohlhausen, Commissioner, Federal Trade Commission
- Mr. J. Thomas Rosch, Of Counsel, Latham & Watkins LLP
- Moderator: Hon. Stephen F. Williams, United States Court of Appeals, District of Columbia Circuit
[Watch or listen now!] Telecommunications & Electronic Media Practice Group Podcast
Ajit Pai was nominated to the Federal Communications Commission by President Barack Obama and on May 7, 2012 was confirmed unanimously by the United States Senate. He was interviewed by Gregory Sopkin of Wilkinson Barker Knauer, LLP for a Federalist Society Teleforum on current hot topics before the Commission. Topics included incentive auctions, federal spectrum, the IP transition, process reform, and media ownership. Commissioner Pai's goal in all of these areas is to create a regulatory environment in which competition and innovation will flourish, and he seeks to shape regulation that gives private firms the strongest incentive to raise and invest capital; to develop new products and services; and to compete in established and new markets. Specifically, Commissioner Pai is working to remove uncertainty that can deter businesses and investors from taking risks, to revisit outdated regulations, and to set clear, modernized rules for the road.
- Hon. Ajit V. Pai, Federal Communications Commission
- Moderator: Mr. Gregory E. Sopkin, Partner, Wilkinson, Barker, Knauer, LLP
[Listen now!] SCOTUScast 7-3-13 featuring Christopher Kratovil
Chris Kratovil July 03, 2013
On June 20, 2013 the Supreme Court announced its decision in American Express Co. v. Italian Colors Restaurant. The question here was whether the Federal Arbitration Act (FAA) permits courts to invalidate a contractual waiver of class arbitration on credit card “swipe fees” if the cost to the plaintiff of arbitrating individually exceeded any possible individual recovery.
In an opinion delivered by Justice Scalia, the Court held by a vote of 5-3 that the FAA does not permit courts to invalidate a contractual waiver of class arbitration on the grounds that a plaintiff’s cost of arbitrating his individual claim exceeds any potential recovery. Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined the majority opinion. Justice Thomas filed a concurring opinion. Justice Kagan filed a dissenting opinion, which was joined by Justices Ginsburg and Breyer. Justice Sotomayor took no part in the consideration or decision of the case.
To discuss the case, we have Christopher Kratovil, who is a member of Dykema’s Litigation practice in the Firm’s Dallas office.
[Listen now!] SCOTUScast 07-07-10 featuring Jeffrey Standen
On May 24, 2010, the Supreme Court announced its decision in American Needle v. NFL. The question in this case was whether the formation of National Football League Properties (NFLP) by the 32 NFL teams and its activities in licensing their team logos collectively and the like was a contract, combination, or conspiracy in restraint of trade such that it would fall within the scope of §1 of the Sherman Antitrust Act.
In an unanimous opinion delivered by Justice Stevens, the Court held the teams' own concerted trademark licensing activities, as well as those that the teams conducted by and through the NFLP, were not categorically beyond the Sherman Antitrust Act's coverage, but should instead be evaluated for legality under the rule of reason.
To discuss the case, we have Willamette University College of Law Professor Jeffrey Standen.