Friday, October 08, 2010

Supreme Court Opens New Term by Declining Review of Four Antitrust Decisions

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter, and John W. Arden.

On the opening day of its 2010-2009 term, the U.S. Supreme Court denied review of four antitrust decisions involving price discrimination, price fixing, and conspiracy to restrain trade.

Price Discrimination

Left standing by the court was a decision of the U.S. Court of Appeals in Philadelphia (2010-1 Trade Cases ¶76,865), rejecting a food distributor’s price discrimination claims against food manufacturer Michael Foods, Inc. and favored food service management company Sodexo, Inc.

The appellate court had ruled that the complaining regional food distributor and Sodexo—the world's largest food service management company—were not "competing purchasers" for purposes of the Robinson-Patman Act.

The food distributor asked the Supreme Court specifically whether, in order to establish competitive injury under the Robinson-Patman Act, a plaintiff had to prove that the favored and disfavored purchasers bought discriminatorily priced products at the exact same moment at which they or their customers competed to resell those products.

The petition is Feesers, Inc. v. Michael Foods, Inc., Docket No. 09-1499, cert. filed June 2, 2010, review denied October 4, 2010.

Price Fixing

The Court refused to review a decision of the U.S. Court of Appeals in Philadelphia (2010-1 Trade Cases ¶76,893) rejecting a terminated motor vehicle dealer’s price fixing claims against auto maker Mercedes-Benz. The decision affirmed summary judgment in favor of the automobile manufacturer on the dealer’s antitrust counterclaims.

The dealer questioned (1) whether the lower courts’ rulings were contrary to antitrust summary judgment precedent and (2) whether requiring a damage expert to independently verify antitrust liability was contrary to antitrust law and rules regarding the admission of expert testimony.

The petition is Coast Automotive Group, Ltd. v. Mercedes Benz, U.S.A, Dkt. 09-1509, cert. filed June 8, 2010, review denied October 4, 2010.

Filed Rate Doctrine

Home purchasers were denied review of a decision of the U.S. Court of Appeals in New Orleans (2010-1 Trade Cases ¶76,968), barring price fixing claims against title insurers under the federal “filed rate” doctrine.

The home purchasers—alleging a conspiracy to fix the price of title insurance—questioned (1) whether the federal "filed rate" doctrine bars Texas state antitrust and state unfair practices claims where Texas law expressly forbids these practices and (2) whether a federal court of appeals should have addressed or certified to the Texas Supreme Court the key unresolved questions of whether the plaintiffs’ Texas state law claims are barred by Texas law.

The petition is Winn v. Alamo Title Insurance Co., Dkt. 10-19, cert. filed June 28, 2010, review denied October 4, 2010.


The Court will not review a California appellate court decision (2010-1 Trade Cases ¶77,065), holding that California Cartwright Act claims against Federal Communications Commission (FCC) licensees were preempted by the Federal Communications Act.

The state appellate court upheld dismissal of allegations that the FCC licensees hoarded or warehoused licenses and made misrepresentations to the FCC in order to retain licenses.

Complaining licensees asked (1) whether any or all state-law claims for damages, arising out of fraud, tortious interference with contractual relations and unfair competition, which are in some way associated with an FCC-issued license, are state “regulation” of rates and market entry; (2) whether preemption is limited to only those claims that directly affect the regulation of rates and market entry; and (3) whether the Federal Communications Act’s savings clause for actions arising under antitrust law applies to claims under both state and federal antitrust law.

The peitition is Havens v. Mobex Network Services, LLC, Dkt. 09-1518, cert. filed June 10, 2010, review denied October 4, 2010.

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