Antitrust defendants got a reminder yesterday that while the United States Supreme Court may have stiffened pleading requirements in recent years, its Twombly decision is not always a silver bullet.

Applying Twombly (which often means the dismissal of an antitrust case), the Court of Appeals for the Second Circuit yesterday restored a complaint alleging price fixing of internet music by major record labels – including EMI, Sony BMG, Universal, Warner, and others – controlling over 80% of digital music in the U.S.

Judge Preska had dismissed the complaint under Twombly.  The appeals court reversed Judge Preska, holding that “[t]he present complaint succeeds where Twombly’s failed because the complaint alleges specific facts sufficient to plausibly suggest that the parallel conduct alleged was the result of an agreement among the defendants.” click here for more »

Italian consumer rights group Codacons has filed class action lawsuits against Italy’s two largest banks – Intesa Sanpaolo SpA (ISP.MI) and UniCredit SpA (UCG.MI) – for banking fees paid by more than 25 million customers.

The cases are the first to be brought under a new law permitting class action suits in Italian courts, and could force the two banks to pay up to 6.25 billion Euros (approximately nine billion dollars) to their customers.

In December 2009, an antitrust regulator ruled that the Italian banks charged higher fees on loans and credit lines to recover part of the overdraft fees canceled by the government in July.  In some cases the bank overdraft fees were 15 times higher than under the old system which was abolished with the aim of lowering charges.

The 25 million customers of Intesa and UniCredit who paid the banking fees can file a request for reimbursement of 250 Euros each, resulting in an overall total of 6.25 billion Euros.

The new law, effective as of January 1, 2010, allows collective lawsuits against any unfair commercial practice from August 16, 2009 onward.  However, unlike in the United States, the Italian law only allows for compensation to victims, not punitive damages against companies. click here for more »

It may be a Hail Mary pass, but New Orleans Saints quarterback Drew Brees has thrown a long bomb to the Supreme Court with a Washington Post op-ed that warns the Supremes that their decision in the upcoming case of American Needle, Inc. v. National Football League, could end up sacking both professional athletes and antitrust enforcement.

At issue in the American Needle case is the extent to which the NFL – and by implication all professional sports leagues – should be considered a single entity immune from antirust claims of conspiracy.  The Supreme Court is slated to hear oral arguments in the case on Wednesday.

In his op-ed, Brees expresses concern that the Seventh Circuit’s decision in American Needle – if affirmed or extended – could enable football teams to agree to abolish free agency and otherwise eliminate all competition from their multibillion dollar business without fear of antitrust scrutiny.

In a previous post, this blog examined the far-reaching implications the American Needle case could have for antitrust regulation of all professional sports leagues in the U.S.

News reports indicate that the Senate Judiciary’s Antitrust Subcommittee will vet the Comcast-NBC Universal joint venture in late January or early February.  The reports indicate that Comcast Chairman Brian Roberts and NBC Universal President Jeff Zucker will testify at the hearing.  

Comcast and NBC Universal announced the $30 billion deal on December 3, 2009.  Because it combines substantial assets in television programming and distribution in one company, the deal will face considerable congressional and regulatory scrutiny.

In addition to the expected Senate hearing, other congressional committees will likely hold similar hearings.  Under the Hart-Scott-Rodino Act, the Department of Justice will review the deal for competitive concerns.  The Federal Communications Commission will consider the communications policy aspects.

Update 01/06/10 – For more information, see today’s Wall Street Journal article on this topic here.