March Antitrust Bulletin

March 3, 2017

Denial of Certiorari Ends Landmark Robinson-Patman Act Dispute Over Bulk Packaging

On Feb. 27, the U.S. Supreme Court denied Wisconsin-based grocery chain Woodman’s Food Market Inc.’s petition for certiorari in its long-running dispute with household products manufacturer Clorox. The denial leaves in place the U.S. Court of Appeals for the Seventh Circuit’s August 2016 decision in the case, which concluded that the sale of products in bulk package sizes does not constitute a promotional “service” subject to the Robinson-Patman Act’s protections against price discrimination. The 7th Circuit’s opinion, which endorsed the reasoning of an amicus curiae brief submitted by the Federal Trade Commission (FTC), reversed earlier district court decisions that had reached the opposite conclusion based on decades-old — and now-repudiated — FTC administrative decisions.

FTC Issues New Study on Effectiveness of Merger Divestiture Remedies

On Feb. 3, the FTC announced the release of a new report from its Bureaus of Competition and Economics on The FTC’s Merger Remedies 2006-2012. Following in the footsteps of the 1999 Study of the Commission’s Divestiture Process, which analyzed 35 FTC merger orders from 1990 through 1994, this new report studied 89 such orders from 2006 through 2012, including 50 selected case studies, an additional 24 drawn specifically from the pharmaceutical industry, and the remaining 15 drawn from a variety of other industries. The FTC also published a post on its Competition Matters blog summarizing the key findings of the study. Notably, the FTC found that buyers of ongoing businesses had consistently succeeded in restoring or preserving competition, whereas buyers of piecemeal divested assets had not always achieved that result.

Agencies Update International and Intellectual Property Licensing Guidelines

On Jan. 13, the U.S. Department of Justice Antitrust Division (DOJ) and FTC jointly announced the issuance of two new sets of antitrust guidelines. The first, Antitrust Guidelines for the Licensing of Intellectual Property, updates the agencies’ 1995 guidelines, taking into account intervening changes in the law, the agencies’ enforcement and policy activities in recent years, the 2010 Horizontal Merger Guidelines, as well as the numerous public comments on the draft guidelines issued last year.

The second, Antitrust Guidelines for International Enforcement and Cooperation, also builds upon prior guidelines issued jointly by the agencies in 1995. The new guidelines, however, are more expansive, distilling the agencies’ experience in cooperating with foreign competition regulators and addressing recent developments in U.S. antitrust law as it relates to foreign commerce. The agencies finalized the guidelines after receiving public comments from a variety of sources.

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