October Antitrust Bulletin

October 18, 2010

FTC Announces Proposed Revisions to “Green Guides”

On Oct. 6, 2010, the Federal Trade Commission (FTC) announced proposed modifications to its “Green Guides,” guidelines originally issued in 1992 to help marketers avoid making misleading environmental claims. The proposed changes include new guidance on product certifications and seals of approval, renewable energy claims, renewable materials claims, and carbon offset claims. Public comments on the proposed changes will be accepted until Dec. 10, 2010.

Public Statements May Give Rise to Antitrust Liability

A federal district court recently ruled that statements made during earnings calls in response to analysts’ questioning may give rise to a Sherman Act Section 1 claim, at least when coupled with a relatively quick response by competitors. In In re Delta/AirTran Baggage Fees, allegations that Delta and AirTran had signaled their intention to impose first-bag fees when, for example, AirTran publicly stated it had not implemented the fee because Delta had not done so and it would “prefer to be the follower” – and Delta announced a first-bag fee less than two weeks after this statement – were sufficient to survive a motion to dismiss. This case serves as a reminder that company representatives should avoid commenting publicly on what business decisions they may think their competitors should make.

UK Antitrust Agencies Release Joint Merger Guidelines

On Sept. 16, 2010, the United Kingdom’s Office of Fair Trading and Competition Commission issued joint merger assessment guidelines which set forth the criteria and methodology the agencies will use when assessing mergers under UK merger control law – including how they define a “relevant merger situation” and what is meant by a “substantial lessening of competition.”

European Court of Justice Declares Communications with In-house Counsel Not Privileged

On Sept. 14, 2010, the European Union’s highest court ruled that internal company communications with in-house attorneys are not covered by legal professional privilege, and cannot automatically be withheld from competition law investigations conducted by the European Commission. Additional information is available in our September/October 2010 EU/UK Competition Law Newsletter.