The Supreme Court of Canada has denied defendants leave to appeal from the British Columbia Court of Appeal’s certification decision in Pro-Sys Consultants Ltd. v Infineon Technologies AG – the DRAM price-fixing class action.

The B.C. Court of Appeal’s earlier decision certifying a class of direct and indirect purchasers of DRAMs (semiconductor memory chips also known as “dynamic random access memory”) remains therefore the definitive pronouncement on the law on class certifications in competition cases in Canada.  As previously discussed, the B.C. Court of Appeal’s decision lowered somewhat the threshold for class certification –allowing plaintiffs at the certification stage to show a “credible and plausible methodology” for addressing damages on a class-wide basis and finding that the certification judge had erred when he subjected plaintiff’s expert to “rigorous scrutiny.”

The B.C. Court of Appeal had found that it could be possible for plaintiffs to prove that the manufacturers benefitted from their wrongful conduct, and thus prove liability on a class-wide basis as a common issue.  The Court of Appeal had noted that guilty pleas to the conspiracy charges in the United States and manufacturers’ agreements to pay fines calculated as a function of the gross pecuniary gain they derived from the crime amounted to “admissions that they engaged in the wrongful conduct alleged by the appellant and that they obtained an unlawful benefit from that conduct.”

Time will tell whether the decision will result in more competition class action proceedings in Canada – a country where there have been very few contested competition class action certification hearings to date.

The Bundeskartellamt, Germany’s version of the U.S. Department of Justice Antitrust Division, has announced it is fining eight coffee roasters 30 million euros ($35.9 million) for illegally fixing the price of wholesale coffee sold to bulk customers such as restaurants and hotels.

Bundeskartellamt President Andreas Mundt spoke strongly about the need for antitrust regulation, saying that “cartels … are highly damaging to society and therefore have to be rigorously prosecuted” and noting that “coordinated price increases for consumer goods such as coffee have a direct impact on consumers’ wallets,”

The Bundeskartellamt is  assessing a fine for the German Coffee Association (GCA) and 10 employees.  The eight coffee roasters (Tchibo GmbH, Kraft Foods Außer Haus Service GmbH, J.J. Darboven GmbH & Co. KG, Melitta SystemService GmbH & Co. Kommanditgesellschaft, Luigi Lavazza Deutschland GmbH, Seeberger KG, Segafredo Zanetti Deutschland GmbH and Gebr. Westhoff GmbH & Co. KG) include local units of two U.S. companies, Kraft Foods Inc. and Luigi Lavazza SpA. 

According to the Bundeskartellamt’s investigation, from at least 1997 through mid-2008, a group of directors and sales managers at the roasters within the GCA coordinated price hikes and cuts – but mostly hikes – for roasted coffee supplied to restaurants, caterers, hotels, vending machine companies and other bulk consumers.

The Bundeskartellamt has a Leniency Programme, which allows for fines to be waived or reduced for cartel members who report price-fixing or cooperate.  It was a leniency filing from cartel member Alois Dallmayr Kaffee OHG that triggered the Bundeskartellamt’s investigation in the first place, and it has escaped a fine as a result.  Two other coffee makers – Melitta and Darboven – cooperated with the investigation and have apparently received reduced penalties as a result, though the amount of the fines for each cartel member have not been released.  The GCA has admitted liability and said it regretted the infringement in a separate statement.

German law allows the Bundeskartellamt  to fine member companies up to 10 percent of their revenues from the previous fiscal year if they uncover a cartel in the course of an investigation.  With the potential for such a mammoth fine, it is not surprising that six of the companies and their employees have already agreed to settle the regulator’s claims instead of fighting. 

This week’s activity is part of increased scrutiny the Bundeskartellamt has placed on the coffee industry in Germany in recent years.  Though this investigation has only been underway since 2009, the Bundeskartellamt already fined three of the coffee roasters (Tchibo, Melitta and Alois Dallmayr) and six of their employees approximately 159.5 million euros in December based on a similar price-fixing cartel in the retail sector that allegedly ran from early 2000 until July 2008.  A separate investigation into cappuccino makers based on similar price-fixing suspicions remains underway, and is expected to be completed soon.

While it may not really be always sunny in Philadelphia, it’s certainly a bright day for plaintiffs in the In re Processed Eggs Antitrust Litigation, who have announced that Land O’Lakes Inc. and two of its subsidiaries, Moark and Norco Ranch Inc., have agreed to settle the egg price-fixing case in the Eastern District of Pennsylvania for $25 million and a promise to cooperate in litigation against the remaining defendants.

Direct purchasers of shell eggs and egg products filed this class action in 2008 against several egg producers alleging that they participated in an industry wide price-fixing conspiracy.  They also allege that several egg trade associations, including United Egg Producers and United States Egg Marketers, coordinated the conspiracy.  The plaintiffs claim that the defendants conspired to restrict the egg supply through hen reductions, cage space requirements and exporting eggs at a loss which allegedly raised the price of eggs and egg products.

The plaintiffs previously settled with Sparboe Farms.  Remaining defendants include other egg producers such as Cal-Maine Foods Inc., Michael Foods Inc., and Rose Acre Farms.

The current settlement covers all direct purchasers of eggs and egg products since 2000 and is awaiting approval by the court.

On Wednesday afternoon, the Senate Antitrust Subcommittee will hold a general oversight hearing on the two federal antitrust enforcement agencies, the Department of Justice’s Antitrust Division and the Federal Trade Commission’s Bureau of Competition.

The heads of these agencies, Assistant Attorney General for Antitrust Christine Varney and Federal Trade Commission Chair Jon Leibowitz will testify.  The hearing is scheduled for June 9, 2010, at 2 p.m. in room 226 of the Dirksen Senate Office Building.    

A general oversight hearing allows the Subcommittee to consider the overall performance of the agencies without reference to a particular topic or piece of legislation.  Members of the Subcommittee are free to ask the witnesses questions about any matter within the purview of their respective agencies.  The House and Senate Judiciary Committees usually hold such a hearing about once a year.         

More information on the hearing can be found on the Senate Judiciary Committee website.

Maybe comedian Jon Stewart had a point about Apple.  Last month, he chastised the chic technology company, saying: “You guys were the rebels, man, the underdogs – people believed in you!  But now, are you becoming … The Man?”

It seems that the U.S. Department of Justice might agree.  According to the New York Times, the DOJ is investigating Apple for using its successful iTunes online music store to muscle Amazon out of the way.

According to the Times, Amazon annoyed Apple by offering promotions to music labels in exchange for an exclusive window to sell those labels’ new songs.  In response, Apple withdrew its own marketing support for the songs that Amazon highlighted.  According to Billboard magazine, which broke word of Apple’s practices in March, one music executive described Apple’s response as: “They are . . . diverting their energy from ‘let’s make this machine better’ to ‘let’s protect what we got.’” 

That’s precisely the sort of attitude that attracts antitrust enforcers, especially when it comes from an industry leader.  And in the world of music sales, no other company is even close to Apple.  According to the Times, Apple has 69 percent of the market for online music sales, compared to 8 percent for Amazon, which is the number two in the market.  Indeed, Apple is also the largest music distributer over any platform, surpassing WalMart two years ago.   According to the Times, Apple now has over 25 percent of the entire music sales market.

As Apple has grown, it has triggered an increasing amount of antitrust scrutiny.  Earlier this month, reports emerged that DOJ or the Federal Trade Commission may investigate Apple for prohibiting writers of programs for its iPhone, iPod, and iPad line from using third-party software to create their applications.  It is also possible that DOJ is investigating Apple and other companies (including Google) for agreeing not to poach each others’ employees.  And last year, the FTC criticized Apple for having Google CEO Eric Schmidt serve on its board, which led soon after to Schmidt’s departure from Apple.

This is not the first time that the government has taken a hard look at online music prices.  In 2006, DOJ started a similar probe of record labels, for trying to raise the change the price of music sales on Apple’s iTunes.  Ultimately, Apple last year introduced more flexible pricing for iTunes music than it initially offered.

The timing for the antitrust story about Apple seems right on the money: on May 26, 2010, Apple became the largest technology company in the world, surpassing Microsoft.  And we all know what happened between DOJ and Microsoft.