By David Golden

The jurisdiction of the Federal Trade Commission could be significantly curtailed under the decision issued by the U.S. Court of Appeals for the Ninth Circuit in AT&T Mobility, Inc. v FTC.

Reversing the lower court, the Ninth Circuit found that the FTC did not have authority to bring an enforcement action against AT&T Mobility for inadequate disclosures to its subscribers regarding data throttling for mobile broadband Internet service.  According to the appellate court, AT&T Mobility’s “status” as a “common carrier” completely exempts all of its other non-common-carrier activities from FTC oversight under Section 5 of the Federal Trade Commission Act (“FTCA”).

Section 5 of the FTCA exempts certain categories of businesses from FTC authority.  Banks and credit unions are examples of exempt categories.  Common carriers are also examples.

click here for more »

Here are some of the developments in antitrust news this past week that we found interesting and are following.

New York Attorney General Launches Antitrust Probe of Mylan’s EpiPen Contracts.  New York state’s attorney general on Tuesday opened an investigation into pharmaceuticals giant Mylan, focused on its contracts with local school systems to buy its lifesaving EpiPens.  The skyrocketing price of those auto-injection devices, used to counteract potentially fatal allergic reactions, has drawn intense criticism of the company this summer.  The office of Attorney General Eric Schneiderman said it launched its probe after a preliminary review revealed Mylan might have inserted anti-competitive terms into its deals to sell EpiPens.

Mastercard Sued for 14 Billion Pounds in Britain’s Biggest Damages Claim.  About 46 million people in Britain could potentially benefit from a legal case brought against Mastercard demanding 14 billion pounds ($19 billion) in damages for allegedly charging excessive fees, according to court documents filed in London.  The case brought by a former chief financial services ombudsman alleges the payments company set unlawfully high fees charged to stores when shoppers swipe their debit or credit cards that were passed on to consumers in higher prices.  Mastercard was accused of doing this for 16 years between 1992 and 2008, according to the documents filed at the Competition Appeal Tribunal on Thursday.

Google Given More Time to Reply to EU Antitrust Charge on Android.  Alphabet’s Google has been given two more weeks to counter EU antitrust charges that it uses its dominant Android mobile operating system to block competitors, the European Commission said on Thursday.  The EU competition enforcer in April accused the U.S. technology giant of harming consumers because of its demand that mobile phone makers pre-install Google Search and the Google Chrome browser on their smartphones to access other Google apps.  Google was initially given until July 27 to respond to the charges but asked for an extension to Sept. 7.

As US Puts Breaks on Megadeals, Walgreens Prepares to Unload.  Walgreens believes that it will probably have to unload more stores than expected to ease antitrust concerns over its pending, $9.41 billion acquisition of Rite Aid, a deal that would make the nation’s largest drugstore chain even larger.  While it still expects to complete the acquisition this year, the Deerfield, Illinois, company said Thursday that it will probably have to divest more than 500 stores.  The company previously said that it expected to divest 500 or fewer.

Here are some of the developments in antitrust news this past week that we found interesting and are following.

U.S. sues to stop Deere from buying Precision Planting.  The U.S. Justice Department filed a lawsuit on Wednesday aimed at stopping Deere & Co from buying Monsanto Co’s Precision Planting farm equipment business.  The Justice Department said the proposed deal would mean higher prices for farmers who want to buy equipment for high-speed precision planting, which allows farmers to plant row crops like corn up to twice as fast as with conventional machinery.   Deere said in a statement that it would fight the lawsuit, saying that the Justice Department’s antitrust concerns were “misguided.”

China Opens Antitrust Investigation Into Uber’s Deal With Didi.  The authorities in China are investigating Uber’s planned sale of its Chinese operations to a local rival, complicating a deal intended to bring the American ride-share operator’s costly venture there to an end.  At a daily news briefing on Friday, Shen Danyang, a spokesman for the Chinese Commerce Ministry, said the inquiry was prompted by local concerns about Uber’s plan to sell the business to Didi Chuxing, of China.  The deal, announced last month, would create a company worth about $35 billion that would hold a strong position in the Chinese market for hailing cars via smartphone apps.

Nexstar wins U.S. antitrust approval to merge with Media General.  Nexstar Broadcast Group has won U.S. antitrust approval to buy Media General Corp on condition that it sell seven television stations, the Justice Department said on Friday.  The $4.6 billion dollar deal had been announced in January.

Here are some of the developments in antitrust news this past week that we found interesting and are following.

Mylan May Have Violated Antitrust Law in Its EpiPen Sales to Schools.  Schools across the country keep EpiPens in their nurses’ offices in case a student has a severe allergic reaction.  For years, Mylan Pharmaceuticals has been selling the devices to schools at a discounted price, giving them a break from rising costs.  But the program also prohibited schools from buying competitors’ devices — a provision that experts say may have violated antitrust law.

Uber Wins Halt to N.Y. Price-Fixing Lawsuit During Appeal.  A federal judge on Friday granted a request by Uber Technologies Inc. and its chief executive officer to put a passenger’s price-fixing lawsuit against them on hold while they appeal his refusal to let them arbitrate the dispute. Calling his decision a “close call,” U.S. District Judge Jed Rakoff in Manhattan said the defendants had not made a “strong showing” that their appeal would likely succeed, though they would face irreparable harm if arbitration were wrongfully denied.  But he said the appeals court could clarify whether Spencer Meyer, the Connecticut plaintiff, and others like him consent to arbitration when they buy services subject to conditions in “clickwrap” and “browsewrap” agreements found online.

Senate Committee to Scrutinize DuPont-Dow Merger.  The head of U.S. Senate Judiciary Committee has called for hearings next month on the proposed merger between the DuPont Co. and Dow Chemical, as well as on broader issues of consolidation within the seed and chemical industry.  Committee Chairman Sen. Chuck Grassley, R-Iowa, said Wednesday that Iowans are concerned that consolidation could result in higher production costs in an already declining agriculture economy.  The deal is being scrutinized by Justice Department and European antitrust authorities.

Tesla Wins U.S. Antitrust Approval to Buy SolarCity.  Tesla Motors Inc. has won U.S. antitrust approval to buy solar panel installer SolarCity Corp., moving closer to its goal of creating a carbon-free energy and transportation company.  The Federal Trade Commission said on Thursday that the deal was approved.  It was on a list of proposed transactions that were granted quickly because the merging partners have few or no overlaps.

Here are some of the developments in antitrust news this past week that we found interesting and are following.

South Korea says investigating whether Google broke antitrust laws.  South Korea’s antitrust regulator said on Friday it is looking into whether Google has violated the country’s anticompetition laws, acknowledging formal scrutiny of the global internet search company for the first time.  The Korea Fair Trade Commission (KFTC) disclosed the investigation in a brief statement, without commenting on the nature of the probe nor any potential antitrust violations.  A person familiar with the matter told Reuters last month the KFTC inspected Google’s Seoul headquarters in July.

Google Fined for Breaking Russian Antitrust Rules With Android.  Russian antitrust officials fined Google $6.8 million on Thursday, a relatively small penalty that nevertheless represents the latest in a growing list of global regulatory problems for the American search giant.  Russian authorities ruled last year that Google had abused its market position with Android, its mobile operating system, by favoring some of its digital services over those of rivals, including the Russian company Yandex.  As part of its ruling, the Federation Antimonopoly Service said that Google’s rivals had not been able to include their own offerings, like digital maps or search, in the Android operating system that powers a majority of smartphones and other mobile devices in Russia.

Aluminum price-fixing claims rejected by U.S. appeals court.  A U.S. appeals court on Tuesday upheld the dismissal of nationwide antitrust litigation accusing banks and commodity companies of conspiring to drive up aluminum prices by reducing supply, forcing them to overpay.  By a 3-0 vote, the U.S. Court of Appeals for the Second Circuit in Manhattan said so-called commercial end users and consumer end users lacked standing to sue because their alleged antitrust injuries were too far removed from the alleged misconduct.  The plaintiffs had accused Goldman Sachs Group Inc, JPMorgan Chase & Co, the mining company Glencore Plc , and various commodity trading, metals mining and metals warehousing companies of having colluded from 2009 to 2012 to rig prices by hoarding inventory.

Judge sets Aetna-Humana antitrust trial date for Dec. 5.  The federal judge hearing the U.S. Justice Department’s case to block Aetna Inc’s $34 billion purchase of Humana Inc has set a trial date for Dec. 5, 2016, later than the companies had requested.  Aetna and Humana are fighting the Department of Justice’s lawsuit asserting that combining the two companies will harm consumers and raise prices.