Blog o’ Blogs October 2015

CPI
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October 2015, Volume 5, Number 10
Both Europe and the U.S. get equal time this month with several interesting case decisions that cast broad ripples in competition waters. Plus DG Comp wanting the right to seize personal phones (U.S. readers will immediately think of Tom Brady and the NFL), the VW scandal, a plea for convergence, and more.
No slam dunk in Ninth Circuit antitrust ruling in O’Bannon v. NCAA
The court below took an excessively broad view of its authority under the Sherman Act to invalidate a restraint based on the possibility that a less restrictive approach could be taken.
Sasha Volokh (Washington Post)
The General Court on the scope of the Commission’s powers to request information

The lines of what’s reasonable are of course blurry, and the Court’s approach is—rightly or wrongly—deferential to the Commission and to the need of safeguarding the effectiveness of its investigations, particularly at an early stage. 

Alfonso Lamadrid (Chillin’Competition)
Rethinking Rebates Policy Under EU Competition Law
The most clear inference that can be drawn is that economic analysis of the impact of the behaviour of dominant undertakings in markets where competition is already severely limited is scarcely relevant.
David Wood & Peter Alexiadis (Kluwer Competition Law Blog)
The Case Against Antitrust Challenges to Standard Essential Patent “Abuses” Intensifies—Will DOJ and FTC Finally Get the Message?
In short, DOJ, like FTC, is advancing an argument that undermines, rather than bolsters, the case for applying antitrust to SEP holders’ efforts to defend their patent rights.
Alden Abbott (Truth on the Market)
United Kingdom: Consumer Rights Act 2015 introduces new procedures for competition litigation, including collective follow-on damages actions

They [provisions on private actions] have been described in the media as introducing “US-style class actions law suits”; whilst this is undoubtedly somewhat hyperbolic, it is clear that things will never be the same again.

Matthew O’Regan (Kluwer Competition Law Blog)
Brent Snyder Explains Antitrust Division Approach to Credit for Compliance Programs
Where a company has had a failed (or no) program and is going to be criminally charged by the Division, if the company can document that it has taken substantial steps to implement a robust compliance program and changed the culture of the organization, the Division will consider giving credit in plea negations for this effort.  
Robert Connolly (CartelCapers)
The VW Diesel Scandal: Turning a Blind Eye on Emissions to Protect the European Automobile Industry
Our findings can also cast light on the role of governments who systematically turned a blind eye to all sorts of trickeries by automakers so that politicians could keep announcing greener and greener standards as if they were not costly to achieve.
Eugenio Miravete (Competition Policy Blog)
When is evidence of a foreign cartel proof of a U.S. price-fixing conspiracy?
The court also clarified that plaintiffs cannot survive summary judgment by bootstrapping conspiratorial conduct in other foreign markets.
Daniel Boland & Michael Hartman (Power of Intelligence)
Case C-23/14, Post Danmark A/S v Konkurrencerådet: first thoughts on the judgement
I would mention for the time being that the ruling is valuable, first and foremost, for the many issues that it clarifies.
Pablo Ibáñez Colomo (Chillin’Competition)
The When and What of Active Supervision

The new FTC staff guidance does not suggest that states should actively supervise regulatory boards, nor does it recommend a one-size-fits-all approach.

Debbie Feinstein & Geoffrey Green (FTC Competition Matters)
Blown out of the Water? Air Cargo and the Future of Extra EU/EEA Cartel Damages Claims
Because the immediate victims of a cartel, or those next in the supply chain, may be able to pass on their losses to others further down the chain, the cartelists cannot be said to be seeking to gain at their expense. 
Tom Richards (Competition Bulletin)
U.S. Antitrust Chief Sees Need for Convergence on Single-Firm Conduct
Aggressive, beneficial competition and anticompetitive exclusionary conduct can look very similar.
Jeffrey May (Antitrust Connect Blog)
Call My Bluff
The note includes an assertion that it [DG Comp] has power to seize and inspect the private electronic devices of individuals. Seriously? How is that going to work?
Stephen Kinsella (Kluwer Competition Law Blog)
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