Anyone who doubts that ballot design can change the course of the world needs to revisit the infamous Butterfly Ballot’s pivotal role in George Bush’s unusual path to the U.S. presidency.

Perhaps realizing the decisive effects ballot design can have, the European Commission is seeking comments on a proposed Microsoft Web Browser Ballot that could weaken Microsoft Internet Explorer’s global domination.

The European Commission is inviting software companies, computer manufacturers, consumers and other interested parties to submit comments on the Microsoft proposal to offer users of its Windows operating system a greater choice of web browsers.

Microsoft hopes the proposal will settle the web browser chapter of its long-running antitrust dispute with EU antitrust enforcers. click here for more »

The United States Supreme Court in the last two years has given defendants in federal civil cases two key victories.  Now, a powerful Senator has joined with plaintiffs’ groups in introducing a bill to repeal those decisions. 

The two decisions – 2007’s Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and this year’s Ashcroft v. Iqbal, 129 S.Ct. 1937 – concern the level of detail that a plaintiff must allege to survive a motion to dismiss.  Twombly held that while a complaint need not allege “detailed” facts, it must include “enough facts to state a claim to relief that is plausible on its face.”  “Naked assertions” of fact are not enough.  Iqbal clarified that Twombly, an antitrust case, applied to all civil lawsuits.  Iqbal may have also raised the standard even higher with its direction to courts to “draw on [their] experience and common sense” in assessing a complaint’s plausibility. 

Plaintiffs’ groups now seek a legislative repeal of Twombly and Iqbal.  They say that Twombly and Iqbal go too far because wronged persons with legitimate claims sometimes do not have access to specific facts before they sue.  In an employment discrimination case, for example, a plaintiff may observe discriminatory behavior, but the defendant alone may have the revealing employment records. click here for more »

Sports leagues and other joint ventures may score an antitrust victory in the Supreme Court this term that makes the Baseball Antitrust Exemption look strictly minor league.

The Supreme Court will hear the case of American Needle, Inc. v. National Football League, which concerns the NFL’s practice of licensing NFL and team logos and other intellectual property exclusively through the NFL’s wholly-owned subsidiary, NFL Properties LLC.

At issue is the extent to which joint ventures, like the NFL, can be considered “single entities” under antitrust law—as opposed to multiple, collectively-acting ball clubs—and thus not held subject to the anticonspiracy prohibitions of § 1 of the Sherman Act.  American Needle thus has the potential to be a watershed case in antitrust analysis of sports leagues and other joint ventures. click here for more »

While the antitrust class action is historically an American enforcement tool, the European Union is on the verge of pressing this powerful hammer into the hands of its member states.

Under a draft EU Directive, state bodies and nonprofit organizations appointed by national governments would be able to bring class actions in national courts against companies that fix prices or abuse their dominant market share.  Victims would automatically be included in the class action unless they opt out.  The draft Directive allows victims at least two years to take legal action to recover actual losses and lost profit after a final court ruling on a company’s liability.

European Competition Commissioner Neelie Kroes is expected to present the proposed Directive to fellow commissioners in the next few weeks.  If adopted as a Directive by the European Commission, EU Member States would be required to implement it or face heavy fines. click here for more »