Antitrust Law Blog

Now that Judge Alito is Justice Alito, many have asked what impact, if any, may be prophesized for the resolution of antitrust and other competition based matters before the United States Supreme Court. While Judge Alito served on the United States Court of Appeals for the Third Circuit from 1990 to January 31, 2006, he has been involved in but a sparse number of antitrust and competition related matters.

Beginning in February 2003, several independent class action suits were filed in California state court against various car manufacturers, dealers, and trade associations on behalf of consumers who purchased new vehicles in California that were manufactured or distributed by one of the defendants. These suits alleged that the defendants violated California's antitrust and unfair business practices laws by conspiring to prevent Canadian distributors from exporting cars to California in order to maintain a higher price for those cars in California. In July 2003, California's Judicial Case Coordination Panel consolidated these suits. Honda Motors Co., Ltd. of Japan ("Honda"), Volkswagen AG of Germany ("Volkswagen"), Nissan Motor Ltd. of Japan ("Nissan"), and the Canadian Automobile Dealers' Association ("CADA"), all non-U.S. entities, were among the defendants in this action. Each of these parties, all of whom were served in their respective home countries, made a special appearance in California court in order to move to quash service of summons for lack of personal jurisdiction. In December 2004, the trial court concluded that it did indeed lack personal jurisdiction over these foreign defendants. In In re Automobile Antitrust Cases I and II, 135 Cal. App. 4th (2005), handed down on December 22nd, California's First Appellate District upheld this ruling on appeal.

On December 19, the European Commission ("Commission") published a Staff Discussion Paper on the application of Article 82 of EC Treaty. Article 82 of the EC Treaty prohibits the abuse of a dominant position, and is the EU's equivalent of Section 2 of the Sherman Act. The Paper is designed to promote a debate as to how European consumers are best protected from dominant companies' exclusionary conduct which risks weakening competition on the EU markets. The proposals are not meant to represent a potential radical change in policy. The Commission "simply wants to develop, and explain its theories of competitive harm on the basis of sound economic assessment for the most frequent types of abusive behavior to make it easier to understand its policy."

In American Bar Association v. Federal Trade Commission, No. 04-5257 (D.C Cir. 2005), the Court of Appeals for the District of Columbia federal Circuit refused to allow the Federal Trade Commission ("Commission") to regulate the handling of client confidential information by attorneys engaged in certain legal practices. Although certain regulations included in the statute by reference had listed "real estate settlement services" and "tax planning and tax preparation services" as activities in which a financial institution may engage, the court held that the statute itself had no provision that could.

The federal price discrimination law, the Robinson-Patman Act, is often criticized as being antithetical to the antitrust laws in that it sometimes promotes price uniformity rather than price competition. In Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., ____ U.S. ____ (2006), the Supreme Court took a major step towards harmonizing Robinson-Patman with other antitrust laws. Not only did the court raise the bar on the competitive injury requirements in secondary line cases, but it stated that the Robinson-Patman Act should not be construed to discourage price reductions that are the hallmark of interbrand competition and should be limited to cases where the favored purchaser has market power.