By Allison F. Sheedy

Apple’s aggressive challenge to an external compliance monitor’s investigation into Apple’s antitrust compliance policies may be planting seeds of doubt that Apple hopes will bear fruit in its appeal of Judge Denise Cote’s decision in United States v. Apple, Inc. that Apple conspired to raise e-book prices.

Apple is charging that the court-appointed monitor has unreasonably demanded that he meet with Apple’s top executives, attempted to expand his reach far beyond Apple’s e-books line of business, and charged the company more per hour than Apple has ever paid an outside counsel.  After Judge Cote rejected Apple’s arguments in the U.S. District Court for the Southern District of New York last week, Apple immediately filed an interlocutory appeal of that decision.

On Tuesday the U.S. Court of Appeals for the Second Circuit granted Apple a temporary administrative stay of the monitor until a three-judge panel can rule on Apple’s motion for a full stay pending appeal.

Judge Cote hand picked Michael Bromwich in September to serve as an external compliance monitor “to review and evaluate Apple’s existing internal antitrust compliance policies and procedures, and to recommend to Apple changes to address any deficiencies in those policies and procedures.”  Although Bromwich lacked antitrust credentials, he had longstanding ties to the Judge herself.  Because of Bromwich’s lack of topical experience, Judge Cote appointed an assistant monitor with more antitrust experience, Bernard Nigro, to help him navigate the terrain.  In December, Apple complained to the Court about the monitor’s purportedly intrusive conduct. click here for more »

By Marlene Koury

Last week’s victory of the U.S. Department of Justice (the “DOJ”) in its challenge to a consummated merger in U.S. v. Bazaarvoice Inc. shows that dominant companies that assume they are free to gobble up their main competitors if such consolidations do not meet the thresholds for reporting under the Hart-Scott-Rodino Act (“HSR”) may be in for some rude awakenings.

While the DOJ has not been shy about suing to block proposed mergers that it deems anticompetitive, traditionally it has not sued to dismantle consummated mergers that did not meet the threshold for pre-merger reporting under HSR.  Last year, however, the lack of pre-merger review did not stop the DOJ from suing Bazaarvoice for acquiring its only significant rival in the dynamic online product ratings and reviews (R&R) market.  The DOJ had not reviewed the merger before consummation because Bazaarvoice’s $168.2 million acquisition of PowerReviews in June 2012 was below the reporting threshold for HSR.

Judge William H. Orrick of the U.S. District Court for the Northern District of California held on Wednesday that Bazaarvoice violated Section 7 of the Clayton Act by purchasing its “closest and only serious competitor,” creating the likelihood of an anticompetitive effect in the U.S. market for R&R. click here for more »

By Seth D. Greenstein

On Friday, the Supreme Court granted certiorari in American Broadcasting Companies v. Aereo, Inc. (“Aereo”), the case that is now slated to decide the question of whether a company “publicly performs” a copyrighted television program by providing consumers a technology to receive and record a broadcast of that program via antenna and then transmit that recording to themselves over the internet.

To Supreme Court mavens, certiorari seemed unlikely under the Court’s rules.  There is no split of opinion among the federal circuit courts of appeals over the legality of Aereo’s business model.  Although broadcasters have sued Aereo in multiple jurisdictions, courts have denied the broadcasters’ requests for a preliminary injunction.  It is debatable whether the case involves a question of exceptional importance, given that Aereo is a small company and the courts disagree as to whether Aereo’s business might cause multibillion dollar networks irreparable harm.

But the unconventional Aereo took an unlikely step after broadcasters sought Supreme Court review of Aereo’s victory in WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), in which the U.S. Court of  Appeals for the Second Circuit affirmed the district court’s denial of broadcasters’ motion for a preliminary injunction seeking to bar Aereo consumers from accessing recorded broadcast television programs while the programs are airing on broadcast television.  Aereo responded to the petition for certiorari by agreeing that the Court should take the case.  As Aereo observed, although it has thus far prevailed in litigation, it continues to be sued whenever it launches in a new city.  Certiorari was needed, Aereo told the Court, to stop the war of attrition that threatened both Aereo and, in its view, all modern technology systems that store and give consumers access to their content in the internet “cloud.”  click here for more »