Trade Regulation Tidbits

This posting was written by John W. Arden.

News, updates, and observations:

 The 111th Congress opened with the introduction of two major pieces of antitrust legislation on January 6. The proposed “Discount Pricing Consumer Protection Act” (S. 148) would restore the ban on resale price fixing that was overturned by the U.S. Supreme Count in Leegin Creative Leather Products Inc. v. PSKS, Inc., 2007-1 Trade Cases ¶75,753, 127 S. Ct. 2705 (2007). The measure would amend Sec. 1 of the Sherman Act by adding the following: "Any contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act." The bill's sponsor, Sen. Herb Kohl (D-Wisconsin), said: "Permitting manufacturers to set minimum retail price significantly harms the ability of retailers to discount, leads to higher prices for consumer goods, and damages retail competition."

A second proposal—which would repeal the antitrust exemptions protecting freight railroads—was introduced in both houses of Congress. The proposed "Railroad Antitrust Enforcement Act" (S. 146) was introduced by Sen. Kohl on January 6, 2009. The next day, Rep. Tammy Baldwin (D-Wis.) introduced the House version (H.R. 233).

 President Elect Barack Obama is expected to name FTC Commissioner Jon Leibowitz as the next FTC Chairman and to choose Harvard law professor Einer Elhauge as the new head of the Department of Justice Antitrust Division, according to a January 15 Reuters story. The story attributes the information to “antitrust sources who have been following the matter.” Leibowitz, who has served on the FTC since , is expected to succeed FTC Chairman William Kovacic, a Republican. Elhauge is reportedly on the top of the short list to head the Antitrust Division. Other top candidates are Janet McDavid of Hogan and Hartson, Douglas Melamed of WilmerHale, and William Bauer of Arnold & Porter LLP. The article appears here.

 Federal court litigation increased 9% in 2008, with antitrust filings growing by 27% over the previous year, according to the 2009 edition of the Law360 Litigation Almanac, which was released on January 13. The sharp rise in antitrust litigation extended a multi-year trend of dramatic increases “as private plaintiffs firms closely track government investigations and prosecutions,” the Almanac stated. A “slew of cases” were filed against chocolate makers, egg product processors, and packaged ice distributors soon after the government announced investigations in these industries. Class actions were found to have hit a new high in 2008, rising 8% over 2007. The publication also included law firm rankings. The largest competition/antitrust law practices were at Baker & McKenzie, Cleary Gottlieb, Kirkland & Ellis, Latham & Watkins, and Gibson Dunn. The firms retained for the most class actions were Morgan Lewis, Littler Mendelson, Greenberg Traurig, Jones Day, and Gibson Dunn.

 William Blumenthal will step down as General Counsel at the FTC, the agency announced on January 6. Blumenthal, who joined the Commission in February 2005, is leaving to join Clifford Chance US LLP as a partner in the firm's mergers and acquisitions practice and chairman of its U.S. antitrust group. "In the years ahead, Bill's thoughtful approach will provide an enduring, valuable model for FTC officials and for the larger community of competition law and consumer protection authorities," said FTC Chairman William E. Kovacic in announcing Blumenthal's departure. On January 15, it was announced that David C. Shonka will take over as Acting General Counsel for the agency. Further details about Skonka's appointment appear here.