Apple may be facing an antitrust probe in India due to a consumer complaint urging India’s Competition Commission to investigate whether Apple violated competition laws by partnering with two of India’s largest mobile phone operators to sell the iPhone 4.  

Apple chose two of India’s major carriers – Bharti Airtel and Aircel – as partners to sell Apple’s most recent iPhone model, the iPhone 4, which was unveiled in India on May 27, 2011.  Previously, Apple partnered with Bharti Airtel and Vodafone Essar Ltd. for earlier iPhone models, the iPhone 3G and 3GS.  No consumer complaints were filed in connection with the partnerships for the earlier models.

The iPhone 4 partnerships essentially block rival carriers from selling the iPhone 4 and theoretically may encourage Bharti Airtel and Aircel to artificially increase prices if they face no competition from rival carriers.  India’s antitrust laws bar agreements that are “likely to cause an appreciable adverse effect on competition within India.”

Apple’s practice of partnering with one or two carriers is common in other markets, including other Asian markets. Apple typically partners with only one carrier in other Asian markets and two carriers in the U.S.  In the U.S., Apple initially partnered with AT&T for all iPhone products, adding Verizon as a partner in February 2011 (while maintaining its partnership with AT&T). 

In June, Apple began selling an “unlocked” version of the iPhone 4 in the U.S., meaning that consumers could purchase the iPhone directly from Apple – at list price – and use the phone with other GSM-compatible carriers, such as T-Mobile.

Apple claims that the iPhone 4s sold in India are similarly “unlocked,” allowing consumers to choose among a variety of GSM-compatible carriers or switch carriers at any time. 

As of yet, the Competition Commission has not committed to investigating Apple, saying only that the agency “may examine the complaint to see if [Apple] is violating any law.”

TV network Viacom is suing cable TV operator Cablevision to stop Cablevision from delivering Viacom channels to subscribers’ iPad tablets.

Viacom claims that Cablevision’s iPad app, which works only in a subscriber’s home, violates contractual, copyright, and trademark rights, because the companies’ agreement allows Cablevision to distribute Viacom’s programming via only “cable TV.”  Cablevision has countered that the app is nothing more than “cable TV,” delivered to homes over Cablevision’s equipment and then sent to iPads as a new type of TV set.

Potentially, such litigation may call into question the regulatory, as well as contractual, status of content delivered by a multichannel video programming distributor (“MVPD”) when the transmission is neither within its conventional service footprint nor sent over the “open” Internet.

Viacom is engaged in a similar lawsuit, filed in April, against Time Warner Cable, which also proposed to send cable programming to tablet computers.  That suit may be nearing settlement, as Viacom and Time Warner asked the judge for a “standstill” order while they negotiate, which the court granted on June 22.

Policymakers have expressed concern about a perceived lack of competition among cable operators and other MVPDs such as satellite and fiber-optic providers.

In the past four years, customers have filed antitrust suits against cable operators challenging the parameters of the services they offer.  One suit sought to compel a cable operator to offer channels “a la carte” instead of in bundles.  Another challenged the practice of making interactive cable services available only to those who rent set-top boxes from the cable operator, leaving out those who buy a set-top box from another source.  None of these suits have been successful to date.

In its 2010 “National Broadband Plan,” the Federal Communications Commission stated that encouraging competition in the devices that subscribers can use to view interactive pay television would also promote competition among the MVPDs themselves.  The suits by Viacom bear watching because they could help determine who will decide which devices can receive pay TV service.

The U.S. Court of Appeals for the Sixth Circuit has revived an antitrust suit brought by carpet dealer Watson Carpet & Floor Covering, Inc. alleging rival dealer Carpet Den Inc. and supplier Mohawk Industries Inc. conspired against Watson to harm its business.

In Watson Carpet & Floor Covering, Inc. v. Mohawk Industries Inc. et al., No. 09-6140, the Sixth Circuit reversed the lower court’s ruling that Watson had failed to state a claim under the pleading standard set forth by the Supreme Court in Bell Atlantic Corp. v. Twombly.  According to the appeals court, Watson’s allegations of an agreement to restrain trade and subsequent acts in furtherance of the conspiracy were sufficient to overcome a motion to dismiss.

The Watson decision came on June 22 – just one day after the same court upheld the dismissal of an antitrust complaint on Twombly/Iqbal grounds even though the information needed to establish the plaintiffs’ claims was controlled by the defendants.  In that case, New Albany Tractor, Inc. v. Louisville Tractor, Inc., No. 10-5100, the court’s decision to uphold the dismissal appeared to have been made reluctantly.  The appellate court all but bemoaned the fact that, under the binding precedent of the Supreme Court’s Iqbal decision, no discovery could be conducted in a case such as New Albany Tractor even though the facts necessary to establish the plaintiffs’ claims were solely within the purview of the defendants.

In contrast, Watson was able to allege specific facts surrounding the agreement among the defendants to drive it out of business, including how it was implemented.  Where Watson obtained this information is not clear, although it may have been from discovery in a prior related litigation that predated Twombly.

Without a doubt, future plaintiffs with similar claims based upon information within the exclusive purview of the defendants, and without the benefit of discovery, face significant challenges in the post-Twombly/Iqbal world.

The U.S. Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) plan to sign a memorandum of understanding with China’s three antitrust enforcement agencies, signaling the first formal pact of cooperation between U.S. and Chinese regulators. 

This deal comes on the heels of China’s sweeping antitrust reform, a policy it developed with advice from foreign agencies like the FTC.  The growing number of countries with antitrust laws and agencies, combined with the increasingly global profile of corporations, has made international cooperation extremely important.  Moreover, multi-jurisdiction, transnational antitrust investigations are now common, meaning that different agencies often have overlapping authority. 

A formal memorandum of understanding facilitates agencies’ ability to share information, especially confidential documents.  The FTC hopes this deal will bring international antitrust policy one step closer to a convergent set of global standards with consistent enforcement. 

The U.S. shares similar agreements with a handful of other countries (Russia, Japan, Israel, and the E.U.) and intends to actively pursue new deals, especially with developing countries like India.

Huntsman International LLC, a subsidiary of the chemical giant Huntsman Corp., has agreed to pay $33 million to settle a class action suit alleging anticompetitive practices.

The direct purchaser plaintiffs claim that five major chemical companies, BASF, Dow Chemical, Bayer, LyondellBasell, and Huntsman, colluded to fix the price of feedstock used to make polyurethane foam.  They point to repeated instances of simultaneous and identical price increases as evidence for their claim that a conspiracy to maintain artificially high prices existed. 

These five players allegedly wield exclusive control of the U.S. polyurethane feedstock market.  Plaintiffs alleged that this, combined with high barriers for market entry and feedstock’s status as an undifferentiated commodity, makes the industry particularly susceptible to price-fixing agreements. 

Huntsman’s settlement acknowledges no wrongdoing.  A spokesman for Huntsman said that the company wanted to avoid the expense of complex, long-term litigation and move forward with business.

The plaintiffs are very satisfied with the $33 million agreement, a figure that represents 1.4% of Huntsman’s sales during the contested period.  LyondellBasell and Bayer have reached similar deals. 

Counsel for the plaintiffs say they will continue to pursue the remaining defendants, BASF and Dow Chemical.