The Second Circuit has extended the implied preclusion doctrine with its recent decision affirming the dismissal by the Southern District of New York of a Sherman Act class action in Electronic Trading Group, LLC v. Banc of America Securities LLC (“Short Sale”).

The Short Sale decision is based on the implied preclusion doctrine established by the Supreme Court in Credit Suisse Securities (USA) LLC v. Billing.  That doctrine asks four questions: (1) whether the regulations are located “within the heartland of securities regulations,” (2) whether the regulatory agency had “the authority to regulate,” (3) whether there is “ongoing” regulation, and (4) whether there is “conflict between the two regimes,” i.e., whether there is a conflict between the regulatory scheme and the antitrust laws.  

In Billing, the Supreme Court found that the regulatory scheme established by the securities laws precluded antitrust liability for IPO underwriters accused of, among other things, “laddering” (price discrimination as to bundled services) and tying. click here for more »

The DOJ’s Antitrust Division has sent the European Commission a holiday greeting that appears designed to mollify the EC after a DOJ statement last month that the EC viewed as a lump of coal in its Christmas stocking.

“The Department of Justice’s Antitrust Division commends the efforts of the European Commission …”  These were the opening words of a surprising statement issued by Assistant Attorney General for Antitrust Christine Varney on December 16.  

Ms. Varney was saluting the settlement agreement reached by Microsoft and the Commission in the internet browser tying case.  Microsoft was alleged to have abused its dominant position in the market for PC operating systems by tying its Internet Explorer browser to its Windows operating system.  In settling, Microsoft agreed to a five-year commitment to offer Windows users a ‘browser Choice Screen’ where they can choose to install one or more of the 12 most popular web browsers.    click here for more »

If coffee executives can’t sleep at night, it isn’t the coffee, it’s the antitrust issues.

Coffee companies around the world are working through the holiday season, contending with merger issues in the U.S. and price fixing in Europe.

In the U.S., Green Mountain Coffee Roasters Inc. has voluntarily withdrawn its filing with the FTC regarding its purchase of Diedrich Coffee Inc. after consultation with the antitrust regulators.  Green Mountain has stated it withdrew the filing to give the FTC more time to review the merger, and will refile the report on or before Tuesday.

Green Mountain – the manufacturer of Keurig coffeemakers – announced earlier this month that it had beaten Peet’s Coffee & Tea Inc. in a bidding contest for the purchase of Diedrich, the maker of K-cups –single-serve containers used in the Keurig coffeemakers.

In dropping out of the bidding for Diedrich, Peet’s charged that there were significant antitrust issues with Green Mountain’s successful bid.

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While consideration of health care may be dominating the halls of Congress, state officials are reminding health insurers that the Feds don’t have a monopoly in regulation.

Connecticut Attorney General Richard Blumenthal has announced that his office is investigating the merger of UnitedHealthcare and Health Net Inc.

UnitedHealthcare agreed in July to pay approximately $510 million to buy Health Net’s northeastern licensed subsidiaries.  As part of the deal, UnitedHealthcare agreed to buy the rights from Health Net to acquire its commercial members as they renew their coverage.  The deal was recently approved  by Thomas Sullivan, the Connecticut State Insurance Commissioner.

Health Net provides health benefits to approximately 6.6 million individuals across the United States.  It serves 578,000 members in New York, New Jersey and Connecticut and it is estimated that Health Net’s northeast operations have generated $2.7 billion in revenues for 2009.  

UnitedHealthcare provides health care benefits to 25 million consumers and has contracts with 600,000 physicians and over 5,000 hospitals and 60,000 pharmacies throughout the United States.

Blumenthal released a statement that the deal could violate antitrust laws and that “one of our concerns is whether the merger will cause excessive concentration in some segments of the health insurance market and thereby unlawfully restrain competition.” click here for more »

A subscriber in Florida is suing Sirius XM Radio, challenging the 2008 merger of the two satellite radio services with allegations of deceptive and excessive pricing.

The private suit claims that despite the commitments Sirius and XM made to the Department of Justice and the Federal Communications Commission as a condition of merger approval, the combined firm has raised prices above competitive levels.

Both the DOJ and the FCC conducted reviews of the merger of XM and Sirius – the two companies licensed to provide satellite digital audio radio service under FCC licenses. The licenses originally prohibited the two companies from merging.

The DOJ ended its investigation on March 28, 2008, concluding that satellite radio service was not a relevant market such that the merger would create a monopoly. The DOJ noted that many people subscribed to XM or Sirius for programming that the other did not have, such as Major League Baseball and Howard Stern. For these customers, the two services were not close substitutes for each other. The DOJ also concluded that the merger would bring efficiencies, mostly in the form of cost savings. click here for more »