FTC Decision That Rambus Monopolized Reversed by D.C. Circuit Court

April 22, 2008

We have followed the Rambus saga for some time. My last post linked to the Federal Trade Commission’s decision holding that Rambus had engaged in illegal monopolization and linking to an extended discussion by my partner, Andy Updegrove. Today, the Federal Circuit Court of Appeals reversed the FTC, holding that Rambus was not guilty of monopolization. Decision here. More to follow, as we have a chance to review this decision.

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Lawyers Sanctioned $8.5 Million and Reported to State Bar Over Failure to Produce Electronic Evidence

January 12, 2008

When I was a new lawyer, working at Howrey in Washington, D.C, the firm ‘s client, Litton Industries, was sanctioned in the amount of $10 million for discovery misconduct – the failure to produce relevant documents during discovery. But for the sanction, Litton would have been entitled to an award of its costs and attorneys fees in the litigation, which it had won. I suspect, however, that Litton (and Howrey) took this with good graces – Litton had been awarded $277 million in damages. See Litton Systems, Inc. v. AT&T, 91 F.R.D. 574 (S.D. N.Y 1981), aff’d, 700 F.2d 785 (2nd Cir. 1983). Ironically, the documents in question (which were produced very late but before trial) were ruled inadmissible at trial, and therefore the defendant suffered no prejudice as a result of the late production. Even though I was not involved in this case while at Howrey, this painful episode for the firm and the lawyers directly involved left a lasting memory upon my young and impressionable mind, and I recalled it as I read about the pickle in which a group of California lawyers have found themselves in the patent case Qualcomm v. Broadcom. In the Qualcomm case a key issue was whether Qualcomm, which accused Broadcom of patent infringement, had participated in the Joint Video Team (“JVT”), a standards-setting body. Broadcom aggresively sought discovery from Qualcomm on its…

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Go Directly to Jail

December 19, 2007

We’re always warning our standards setting clients that U.S. antitrust laws are about more than just money – you can go to jail. After a while, it feels like these warnings lose their force. This recent press release from DOJ is a reminder that a violation of the antitrust laws is both a criminal and a civil violation: An independent consultant and two executives of Dunlop Oil & Marine Ltd., a manufacturer of marine hose located in Grimsby, United Kingdom, pleaded guilty today and have agreed to serve record-setting prison sentences for participating in a conspiracy to rig bids, fix prices, and allocate market shares of marine hose sold in the United States, . . . . . . Under the terms of their plea agreements, Whittle has agreed to serve 30 months in jail, Allison has agreed to serve 24 months in jail and Brammar has agreed to serve 20 months in jail. These are the longest prison sentences that foreign national defendants charged with antitrust offenses have agreed to serve in the Division’s history. ‘Nuff said. This is serious stuff. You have to wonder if these guys knew that they were playing with fire until it was too late.

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Conduct in Standard Setting Can Violate the Sherman Act

October 17, 2007

Antitrust. It shouldn’t be a surprise that it might be illegal under the antitrust laws for a company with a 90% marketshare in a key, patented technology to agree as a member of a standards developing organization that it would license its technology on “fair, reasonable and non-discriminatory” (or FRAND) terms if that technology is included in the standard, and then, after adoption, violate that pledge. Nevertheless, a federal district court held that Qualcomm could not be held liable under the antitrust laws under these facts. In an important decision at the intersection of standard-setting and antitrust law the Third Circuit disagreed, reversing the lower court. Andy Updegrove addresses the case (and provides a link to the decision) in his article here, so I’ll defer to his extensive discussion and analysis.

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Supreme Court Changes the Rules on Vertical Price Fixing

June 29, 2007

As recently as 1977 virtually all “vertical restraints” were per se illegal under the federal antitrust laws. This included “nonprice” restraints, which are agreements between firms operating at different levels than the manufacturer that restrict the conditions under which firms may resell goods. An example might be a restriction on the locations from which a retailer may sell a manufacturer’s product. Supreme Court precedent also restricted both vertical “maximum” price restrictions (example: “you may not price this product higher than $12/unit”) and vertical “minimum” price restraints (example: “you may not price this produce at less than $10/unit”). However, over the last 30 years the Supreme Court has, in effect, withdrawn each of these antitrust prohibitions, holding that these restraints must be subject to the “rule of reason” (requiring an economic examination in every case to determine whether the harms outweigh the benefits), rather than the per se doctrine (per se illegal = automatically illegal; no excuse will do). In 1977 the Supreme Court dropped the per se rule on “nonprice” restraints in the case of Continental T.V., Inc. v. GTE Sylvania, Inc. I had the pleasure (is there an emoticon for sarcasm?) of writing a Law Review Note on that case: Sylvania and Vertical Restraints on Distribution, 19 Boston College Law Rev. 751 (1978). Twenty years later, in State Oil Co. v. Khan, the second leg of this three-legged stool…

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Son of Rambus

August 9, 2006

Foundry Networks, Inc. has filed suit against Alcatel in federal court in Delaware. The claims are very similar to the claims in the Rambus litigations. A copy of the complaint is here (pdf file). Andy Updegrove discusses this case and its similarities to Rambus in his “Son of Rambus” post, here.

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Antitrust and the "Single Entity" Doctrine

July 24, 2006

It is axiomatic that an entity cannot “conspire” with itself. For example, the Supreme Court has held that a parent corporation and its subsidiary are not capable of an illegal conspiracy under the Sherman Antitrust Act. Of course, as is true with most legal principles, what looks simple at 30,000 feet altitude becomes more complicated the closer one gets to the ground, and the courts have struggled with the definition of a “single entity” in a variety of contexts. Dean Williamson of the DOJ Antitrust Division has written an interesting and in-depth paper analyzing the law and economics of this issue. The paper, titled Organization, Control and the Single Entity Defense in Antitrust, is published here.

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Supreme Court Weighes in on Joint Ventures and Price Fixing

May 3, 2006

Antitrust. While most people don’t know a lot about antitrust law, they do know that price fixing is illegal. And, if you asked them whether two large oil companies, such as Texaco and Shell, could form a joint company to sell oil throughout the western U.S. at a single price, they’d probably say that the “joint venture” was a technicality, and that it was no different than if Texaco and Shell got together and decided to sell gas at the same price individually. Well, the Supreme Court would not agree. In Texaco v. Dagher [link] a case decided earlier this year, the operators of 23,000 service stations selling under the Texas or Shell brands of gasoline challenged the western states joint venture of the two giant oil companies for marketing gasoline, with the product still sold under both the Texaco and Shell brands but at the same price. The Court held that such a joint venture is not “per se” illegal (illegal on its face and indefensible), because Texaco and Shell did not compete directly in the market, but participated jointly through their investment in the joint venture corporation. “As such, though [the joint venture’s] pricing policy may be price fixing in the literal sense, it is not price fixing in the antitrust sense,” wrote Justice Thomas. This case is important law for joint ventures — it gives parties the…

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Supreme Court Weighs in on Patents, Antitrust and Market Power

March 20, 2006

Patents, Antitrust. Suppose that you live in a small farming community, Village 1, that relies entirely on its own members for food supplies. I have the only farm that grows corn. Whenever you come to me to purchase corn I tell you that I will only sell you my corn if you also buy a pound of cauliflower for every pound of corn you purchase. Cauliflower is plentiful, and you don’t want to buy my cauliflower (in fact you don’t even like this vegetable), but since you (and your fellow citizens) need corn you have no choice. Assume that you move to a new community, Village 2. You still need corn, but you discover that there are several purveyors of corn in your new town. You go to the closest of these, and you discover, to your dismay, that this farmer also insists that if you buy his corn, you must also buy his cauliflower. Before purchasing you check around, and learn that the other corn vendors do not require that you purchase cauliflower as a condition to purchasing corn, and you happily proceed to do business only with them in the future. You later learn, to your satisfaction, that the corn farmer that you first encountered in Village 2 has gone out of business. Thie simple example illustrates one of the more complex and vexing doctrines of U.S. antitrust…

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Justice Department Files Antitrust Suit Against National Association of Realtors

September 12, 2005

Antitrust. Here is a link to the Complaint in this long-anticipated lawsuit. A link to the DOJ’s press release, announcing the suit, is here. In a nutshell, the suit alleges that the NAR has blocked competition by allowing real estate agents to withhold listings from brokers who utilize the Internet. The DOJ and the NAR have been attempting for months to negotiate a settlement to the issues raised by this suit, and apparently the NAR made a last gasp attempt last Thursday, when it announced a modified approach to its policy on Internet listings. However, the DOJ believed that the NAR had not gone far enough, precipitating this lawsuit. I’ll discuss this suit in more detail in a later blog.

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