Law Extends Civil Leniency for Antitrust Cooperators
On June 9, 2010, President Obama signed into law a 10-year extension of the
civil leniency provisions of the Antitrust Criminal Penalty Enhancement and
Reform Act of 2004 (ACPERA). The new law extends the sunset date for ACPERA to
June 22, 2020.
ACPERA protects individuals and companies that self-report criminal
violations of the Sherman Act to the Department of Justice's Antitrust Division
from the treble damages and joint-and-several liability ordinarily imposed in
private antitrust litigation. ACPERA's protections are designed to promote
participation in the Antitrust Division's leniency program and to encourage
leniency applicants to cooperate with private plaintiffs.
Under the leniency program, the first member of an antitrust cartel to report
the anticompetitive conduct and cooperate with the government – and otherwise
meet the requirements of the program – is granted amnesty from criminal
prosecution. ACPERA provides an additional incentive for such cooperators. In
exchange for cooperation with private plaintiffs, the civil liability of
leniency applicants is limited to single damages attributable only to the
leniency applicant's own sales to plaintiffs, while other co-conspirators remain
jointly and severally liable for all damages, including treble damages.
Supreme Court Blocks NFL's Attempt to Sidestep Antitrust Law
On May 24, 2010, the Supreme Court unanimously ruled in American Needle, Inc.
v. National Football League that the NFL is not exempt from antitrust laws and a
dispute over NFL-licensed apparel can proceed. Though recognizing that some
coordination is needed to run the sports league, the Court held that the NFL is
not a single entity but rather a consortium of 32 separately owned teams that
compete with one another for fans, ticket sales and players, and "in the market
for intellectual property" (including the trademarks licensed for sportswear).
Workshops Signal Increased Focus on Competition in Agriculture Markets
On May 21, 2010, the U.S. Departments of Justice and Agriculture held their
second joint public workshop on competition and regulation in the agriculture
sector, and Agriculture Secretary Tom Vilsack announced the formation of a task
force to bolster enforcement of the Packers and Stockyards Act, which regulates
the business of packers and poultry dealers and prohibits them from engaging in
unfair, discriminatory or deceptive practices and other specified conduct. This
workshop focused on issues in the poultry industry. An earlier workshop was
concentrated on grain farming and hog production. Three additional workshops are
scheduled this year.
Proposed Revisions to Horizontal Merger Guidelines Issued
On April 20, 2010, the U.S. Department of Justice and the Federal Trade
Commission issued proposed revised
Horizontal Merger Guidelines
intended to inform companies and lawyers how the federal agencies evaluate the
likely competitive impact of mergers. The proposed guidelines clarify guidelines
issued by the two agencies in 1992 and last revised in 1997. The period for
public comments closed June 4, 2010.
European Commission Revises Competition Rules for Goods/Services Distribution
On April 20, 2010, the European Commission announced the adoption of a new block
exemption regulation for agreements between manufacturers and distributors and
other downstream purchasers for the sale of products and services. In order to
benefit from the block exemption, neither the manufacturer nor purchaser (in the
purchasing market) may have a market share in excess of 30%, and the agreement
must not contain any "hardcore" restrictions of competition, such as fixing
resale prices or re creating barriers to the EU's single market. The new
guidelines specifically address online sales. Additional information is
available in our March 2010
EU/UK Competition Law Newsletter.