Apple Fails to State Antitrust Claims Against Samsung for Standards Setting Abuse

This posting was written by Cheryl Beise, Editor of CCH Guide to Computer Law.

The federal district court in San Jose, California held on October 18 that Apple, Inc. failed to allege sufficient facts to support its claims that rival Samsung Electronics Ltd. violated Section 2 of the Sherman Act by abusing a private standard setting process for mobile wireless technology.

The court dismissed Apple’s claims under Section 1 of the Sherman Act as incompatible with its allegations supporting its section 2 claims. Apple’s California Unfair Competition Law claim predicated on Samsung’s Sherman Act violations also was dismissed.

Global Patent War

The ruling was the first blow to Apple in the U.S. in its global war with Samsung regarding several utility and design patents related to both parties' mobile device technologies. Cases are pending in at least ten countries. The Federal Court in Sydney, Australia issued an October 13 temporary ban on the sale of Samsung's Galaxy 10.1 tablets. In August, a court in Dusseldorf, Germany temporarily halted sales of Galaxy 10.1 tablets, while a court in The Hague banned sales of the South Korean company’s Galaxy S, S II smart phones.

According to the district court, Apple failed to allege sufficient facts to meet Fed.R.Civ.Pro. 9(b)’s heightened pleading standard in support of its Sherman Act monopolization claim. Apple contended that Samsung fraudulently induced the European Telecommunications Standards Institute (ETSI), a standard setting organization (SSO) for mobile wireless carrier technology, to adopt a standard incorporating a Samsung patent as essential technology.

Specifically, Samsung allegedly failed to disclose intellectual property rights in its patent and breached a promise to license its essential technology on fair, reasonable, and non-discriminatory (FRAN) terms to ESTI members.

Anticompetitive Conduct

In order to establish anticompetitive conduct for failure to disclose intellectual property rights, a plaintiff must show that there was an alternative technology that the SSO was considering during the standard setting process and that the SSO would have adopted an alternative standard had it known of the patent holder's intellectual property rights.

The court found that Apple failed to allege sufficient facts to support a plausible inference that if Samsung had disclosed its intellectual property rights to the ETSI, a viable alternative technology performing the same functionality would have been incorporated into the UMTS standard, or that the relevant functionality would not have been incorporated into the standard at all.

False Declarations

Apple's allegations that Samsung submitted false FRAND declarations were not sufficient to put Samsung on notice of the particular misconduct that created the basis of the alleged fraud, in the court’s view. Apple did not set forth facts establishing when the alleged false FRAND declarations were made, by whom they were made, or with regard to which patents were they made. The court granted Apple leave to amend its Sherman Act sec. 2 claims.

The court dismissed Apple’s restraint of trade claim under Section 1 of the Sherman Act without leave to amend. To state a violation under Section 1, a plaintiff must show a unity of common purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.

Unilateral Conduct

Apple’s allegation that Samsung unilaterally subverted ETSI’s collaborative standard-setting process in order to restrain trade was not reconcilable with its allegation that Samsung contracted with, combined with, or conspired with ETSI or is members to restrain trade, according to the court. Apple necessarily failed to allege a concerted action between Samsung and ETSI necessary to state a claim under Section 1, the court held.

The decision in Apple Inc. v. Samsung Electronics Co. Ltd., 11-CV-01846-LHK, will appear in CCH Trade Regulation Reporter and CCH Guide to Computer Law.

Further details regarding CCH Trade Regulation Reporter appear here. Details regarding CCH Guide to Computer Law appear here.

Antitrust Agency Heads Discuss Recent Enforcement Efforts at ABA Spring Meeting

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Attendees of the American Bar Association Section of Antitrust Law 59th Annual Spring Meeting on April 1 heard from the heads of the two federal antitrust agencies on recent enforcement efforts.

“Balanced Activism”

FTC Chairman Jon Leibowitz described the past year as another one of “balanced activism.” He suggested that, when viewed in tandem, the FTC’s review of the Google/AdMob transaction and the settlement with Intel Corporation demonstrate this balanced enforcement.

In May 2010, the FTC announced that it would not challenge Google’s proposed acquisition of mobile advertising network company AdMob because the transaction was unlikely to harm competition in the emerging market for mobile advertising networks. The agency’s concerns about the deal were outweighed by Apple’s planned entry into the market (CCH Trade Regulation Reporter ¶16,453).

In August 2010, the agency announced that Intel Corporation agreed to settle FTC charges that it unlawfully maintained its monopoly by stifling competition in the market for computer chips in violation of Sec. 5 of the FTC Act (CCH Trade Regulation Reporter ¶16,483). Chairman Leibowitz cautioned that businesses run the risk of facing a Sec. 5 case if they “compete by sabotaging competitors” instead of using innovation.

Injunction in Hospital Merger Case

The FTC’s recent victory in the federal district court in Toledo, Ohio, in its challenge to ProMedica Health System Inc.’s proposed acquisition of St. Luke’s Hospital was also discussed. Chairman Leibowitz told attendees that he was very pleased with the decision (2011-1 Trade Cases ¶ 77,395). He mentioned that Judge Katz cited extensively to the recently issued Department of Justice/FTC Horizontal Merger Guidelines (CCH Trade Regulation Reporter ¶13,100).

Chairman Leibowitz noted that the decision is the first preliminary injunction win in an FTC hospital merger challenge since a federal district court in Missouri temporarily blocked the merger of the only two commercial hospitals in Poplar Bluffs, Missouri (1998-2 Trade Cases¶72,227). That decision was reversed by the U.S. Court of Appeals in St. Louis (1999-2 Trade Cases ¶72,578), however, and the FTC eventually dismissed that matter.

“Last Dollar Fraud”

On the consumer protection front, the FTC’s efforts to combat “last dollar fraud” were highlighted. According to Chairman Leibowitz, the agency is focusing on loan modification, foreclosure rescue, and other scams that are taking the last dollar from consumers suffering from the economic downturn.

Sherman Act, Section 2 Enforcement

Saying that “Section 2 is alive and well,” Assistant Attorney General Christine Varney touted the Justice Department Antitrust Division’s recent settlement with United Regional Health Care System of Wichita Falls (CCH Trade Regulation Reporter ¶50,988). This is the first case in over a decade challenging a monopolist with engaging in traditional anticompetitive unilateral conduct

Criminal Enforcement

In the criminal area, the antitrust chief said that, while the air cargo price fixing inquiry was entering its last chapter, attendees should continue to pay attention to the ongoing municipal bonds industry investigation. The Justice Department has already obtained nine guilty pleas as a result of this investigation. Additionally, a number of former executives at financial service companies and financial institutions have been indicted and are awaiting trial.

AAG Varney also noted Bank of America’s December 2010 agreement to pay a total of $137.3 million in restitution to federal and state agencies as a condition of admission into the Department of Justice's antitrust corporate leniency program for its role in the conspiracy.

State Enforcement

James A. Donahue III, Pennsylvania Chief Deputy Attorney General and Chair of the National Association of Attorneys General Antitrust Task Force, discussed the states’ efforts to ensure that their citizens were “getting the benefits of competition.” Donahue noted the states’ cooperation with the U.S. Justice Department in the municipal bonds investigation.

He also highlighted state actions targeting resale price maintenance. In particular, Donahue noted two settlements between the California attorney general’s office and cosmetics firms in the last year (2010-1 Trade Cases ¶76,922 and 2011-1 Trade Cases ¶77,306).

Donahue also pointed out that the State of New York was appealing a state court’s denial of an order enjoining mattress manufacturer Tempur-Pedic International, Inc. from restricting discounting by its authorized retailers (2011-1 Trade Cases ¶77,311).

Texas Hospital Settles U.S., State Monopoly Claims

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

A Texas hospital has agreed to settle allegations brought by the U.S. Department of Justice Antitrust Division and the State of Texas that it unlawfully used contracts with commercial health insurers to maintain its monopoly for hospital services in violation of Section 2 of the Sherman Act.

The action is notable because it is the first unilateral conduct case brought under Sec. 2 of the Sherman Act in over a decade and because it is the first case brought by the Antitrust Division in the health care sector since the October 2010 civil antitrust lawsuit against Blue Cross Blue Shield of Michigan (BCBSM).

In BCBSM case, which is ongoing, the Justice Department and State of Michigan are challenging most favored nation (MFN) clauses in BCBSM’s agreements with hospitals. The government contends that the MFNs raised hospital prices and prevented other insurers from entering the marketplace. The complaint alleges violations of Sec. 1 of the Sherman Act and the state law analogue.

This latest complaint was filed on February 25 in the federal district court in Wichita Falls, Texas, against United Regional Health Care System of Wichita Falls—by far the largest hospital in Wichita Falls.

Relevant Product Markets

The complaint alleges monopoly power in two relevant product markets in Wichita Falls, Texas and the surrounding area:

(1) the sale of general acute-care inpatient hospital services (inpatient hospital services) to commercial health insurers, and

(2) the sale of outpatient surgical services to commercial health insurers.

United Regional has an approximately 90% share of the alleged inpatient hospital services market and a greater than 65% share of the outpatient surgical services market.

According to the complaint, in order to maintain its monopoly in the provision of inpatient hospital and outpatient surgical services, United Regional systematically required most commercial health insurers to enter into contracts that effectively prohibited them from contracting with United Regional’s competitors.

United Regional’s contracts required these insurers to pay significantly higher prices for services—13% to 27% more—if they contracted with a nearby competing facility, according to the Department of Justice.

The government contends that there was no valid procompetitive business justification for United Regional’s exclusionary contracts.

Proposed Consent Decree

Under the terms of a proposed consent decree, United Regional would be prohibited from entering into contracts that improperly inhibit commercial health insurers from contracting with its competitors.

In particular, United Regional is prohibited from conditioning the prices or discounts that it offers to commercial health insurers based on whether those insurers contract with other health-care providers and from inhibiting insurers from entering into agreements with United Regional’s rivals.

United Regional is also prohibited from taking any retaliatory actions against an insurer that enters into an agreement with a rival provider. The term of the consent decree is seven years.

The case is U.S. and State of Texas v. United Regional Health Care System of Wichita Falls. Further information will appear in the CCH Trade Regulation Reporter.

A press release, complaint, and proposed final judgment are available on the Department of Justice Antitrust Division website.

Varney Discusses Antitrust Enforcement in Distressed Economy

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

Antitrust chief Christine A. Varney made headlines last week when she announced, in a May 11 speech, the withdrawal of the Antitrust Division’s controversial report on single firm conduct. (See Trade Regulation Talk, May 11, 2009).

However, Varney’s comments on other significant issues—from the role of antitrust enforcement in a distressed economy to the Antitrust Division’s enforcement agenda—were not widely reported.

In a speech to the Center for American Progress, the Assistant Attorney General suggested that “a combination of factors, including ineffective government regulation, ill-considered deregulatory measures, and inadequate antitrust oversight contributed to the current conditions.” In light of the state of the economy, antitrust enforcers can no longer “sit on the sidelines.”

Prior Economic Crises

Varney noted that the federal government’s response to the Great Depression was to pass legislation, such as the National Industrial Recovery Act, that effectively foreclosed competition by setting industry prices and wages, establishing production quotas, and imposing restrictions on entry.

“Competition was relegated to the sidelines, as the welfare of firms took priority over the welfare of consumers,” she said. “It is not surprising that the industrial codes resulted in restricted output, higher prices, and reduced consumer purchasing power.”

By 1937, the Roosevelt Administration got back in the game of antitrust enforcement on a nationwide scale. This newly vigorous enforcement became a cornerstone of the New Deal’s economic agenda.

Lessons Learned

“The lessons learned from this historical example are twofold,” she said. “First, there is no adequate substitute for a competitive market, particularly during times of economic distress. Second, vigorous antitrust enforcement must play a significant role in the Government’s response to economic crises to ensure that markets remain competitive.”

In recent years, firms have been given “room to run with the idea that markets self-police and that enforcement authorities should wait for the markets to self-correct.” However, it is clear that this self-correction has not occurred, the official said. Instead, markets are distorted, firms fail, and American consumers are failing with them.

“I believe that these extreme conditions require a recalibration of economic and legal analysis and theories, and a clearer plan for action,” Varney stated.

Section 2 Enforcement

Varney spoke of her intention to aggressively pursue enforcement of Section 2 of the Sherman Act and explained the reasons for withdrawing the 2008 report, entitled “Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act.”

“In my view, the greatest weakness of the Section 2 Report is that it raises many hurdles to Government antitrust enforcement,” she said. It raises the concern that the enforcers and courts may fail to distinguish between anticompetitive acts and lawful conduct and their actions may lead to “overdeterrence” of potentially procompetitive conduct, she observed.

“I do not share these concerns. I strongly believe that antitrust enforcers are able to separate the wheat from the chaff in identifying exclusionary and predatory acts. As Judge Posner explained, ‘antitrust doctrine is supple enough to take in stride the competitive issues presented by the new economy.’”

She also noted that the report went too far in evaluating the importance of preserving possible efficiencies and underestimated the importance of redressing exclusionary and predatory acts that harm competition, distort markets, and increase barriers to entry.

Rather than any specific test to govern Section 2 analysis, Varney recommended that the Antitrust Division go “back to basics” in evaluating single-firm conduct within the fundamental principles of antitrust enforcement.

Section 1 Cases

Varney added that “continued criminal and civil enforcement under Section 1 of the Sherman Act will also be an important part of the Antitrust Division’s response to the distressed economy.”

“With the higher levels of concentration and economic instability, markets are increasingly vulnerable to collusion and other fraudulent activity,” the Assistant Attorney General said.

On the civil front, the new antitrust chief will emphasize both merger and non-merger investigations and explore vertical theories in other new areas, such as those arising in high-tech and Internet-based markets.

Besides enforcing antitrust laws, the Division will be asked to contribute expertise to the Obama Administration’s broad reforms over numerous industries. “Indeed part of our efforts will be to foster inter-agency discussions regarding competition-related issues posed by existing and proposed regulations and policies, and to play an active role in competition advocacy.”

Text of the speech (“Vigorous Antitrust Enforcement in This Challenging Era”) appears at CCH Trade Regulation Reporter ¶50,242 and here on the Department of Justice Antitrust Division website.

Antitrust Chief Withdraws 2008 Report on Single Firm Conduct

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Marking a shift in enforcement policy, Christine A. Varney, Assistant Attorney General in charge of the Department of Justice Antitrust Division, on May 11 withdrew, effective immediately, the Antitrust Division's September 2008 report, entitled “Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act.”

The report reflected the Justice Department's enforcement policy with respect to single-firm conduct under Sec. 2 of the Sherman Act. The text of the withdrawn report (CCH Trade Regulation Reporter ¶50,231) appears here on the Department of Justice website.

“Withdrawing the Section 2 report is a shift in philosophy and the clearest way to let everyone know that the Antitrust Division will be aggressively pursuing cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers,” said Varney. “The Division will return to tried and true case law and Supreme Court precedent in enforcing the antitrust laws.”

The report outlined an approach for analyzing unilateral conduct that was intended to avoid over-enforcement that would deter aggressive, but lawful conduct.

Thomas O. Barnett, the Assistant Attorney General in charge of the Antitrust Division, who signed off on the report, had suggested that the Antitrust Division took a middle ground in its enforcement policy toward dominant firms.

Varney said that the report advocated hesitancy in the face of potential abuses by monopoly firms. She said that implicit in this overly cautious approach is the notion that most unilateral conduct is driven by efficiency and that monopoly markets are generally self-correcting.

“The recent developments in the marketplace should make it clear that we can no longer rely upon the marketplace alone to ensure that competition and consumers will be protected,” Varney added. She announced the withdrawal of the report at a May 11 speech at the Center for American Progress.

The report was issued after a series of joint hearings, involving more than 100 participants, that the Department and the FTC held from June 2006 to May 2007 to explore the antitrust treatment of single-firm conduct.

When the Justice Department's report was released last September, three of the four FTC members—Commissioners Pamela Jones Harbour, Jon Leibowitz, and J. Thomas Rosch—jointly issued a statement saying that if the report were adopted by the courts, the it “would be a blueprint for radically weakened enforcement of Section 2 of the Sherman Act.”

The three commissioners contended that “[t]he Department's premises lead it to adopt law enforcement standards that would make it nearly impossible to prosecute a case under Section 2.” (See Trade Regulation Talk entry, September 8, 2008)

The May 11 news release on the withdrawal of the report appears here on the Department of Justice website.