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Sherman Act

DOJ and SDNY US Attorney’s Office Indict Three Dealers in Foreign Currency Exchange Spot Market Conspiracy Case

by McDermott Will & Emery | Mar 28, 2017 | DOJ Developments, EC Developments

A grand jury has indicted three foreign currency exchange spot market dealers for alleged violations of the Sherman Act, 15 U.S.C. § 1, in a case brought jointly by the DOJ’s Antitrust Division and the US Attorney’s Office for the Southern District of New York (SDNY). The allegations in the case, United States v. Usher, et al., are that the three named defendants conspired to suppress and eliminate competition for the purchase and sale of Euro/US dollar (EUR/USD) currency pairs via price fixing and bid rigging.

The foreign currency exchange spot market (the “FX Spot Market”) enables participants to buy and sell currencies at set exchange rates. The FX Spot Market is an “over-the-counter” market conducted via direct customer-to-dealer trades, i.e., without an exchange. In the market, currencies are traded and priced in pairs, whereby one currency is exchanged for the other. When filling customer orders, dealers in the FX Spot Market do not serve in a broker capacity, but rather fulfill the orders via their own trading and speculation in the requested currency markets. Dealers employ traders to quote prices and engage in trades to fill customer orders. The dealers and their traders are able to access a separate virtual market, known as the interdealer virtual market, which enables currency trades amongst dealers. According to the Indictment, currency pair prices are set by a continuous auction in the interdealer virtual market, where “individual actions taken by competing traders—to bid or not bid, to offer or not offer, to trade or not to trade, at certain times, and using certain tactics—can cause or contribute to a change in the exchange rate shown in the [virtual trading] interface, and thus may benefit, harm, or be neutral to a competing trader.” The Indictment asserts that this is because the benchmarks used by the virtual market were calculated at particular times each day and were based on “real-time bidding, offering, and trading activity” on the virtual trading market.

The Indictment asserts that the defendants violated the Sherman Act by:

engaging in chat room communications whereby they discussed customer orders, trades, names and risk positions;
refraining from trading against each other’s interests;
coordinating bids for the purpose of fixing the price of the EUR/USD pair.

Defendants are alleged to have engaged in profitable EUR/USD transactions while acting to fix prices and rig bids for the EUR/USD product in the FX Spot Market. The Indictment further alleges that others were co-conspirators, suggesting that there may be cooperating witnesses and possibly further indictments to follow. Of note, however, recent Trump Administration changes to US Attorneys and DOJ Division Deputies and Chiefs may conceivably alter the course of this and any follow-on litigation. Regardless, over-the-counter markets have been a focus of antitrust lawsuits in recent years, most notably in the widely-covered Libor suits, and that trend is expected to continue.

Supreme Court Nominee Neil Gorsuch Has Significant Antitrust Experience

by Lauren Salins | Feb 24, 2017 | U.S. Supreme Court Developments

On January 31, 2017, President Trump nominated Neil Gorsuch to fill the vacant seat at the Supreme Court of the United States left by the late Justice Antonin Scalia. As a federal judge for the US Court of Appeals for the Tenth Circuit, a former private practitioner, and an adjunct professor of antitrust law at the University of Colorado, Gorsuch has an extensive background in antitrust.

In 1996, Gorsuch joined the law firm Kellogg Huber Hansen Todd Evans & Figel, where his practice included both plaintiff and defense litigation in antitrust matters. Gorsuch and his co-counsel helped secure a judgment of $1.05 billion in trebled damages for tobacco company Conwood Co. after a jury found that defendant United States Tobacco Co. engaged in anticompetitive marketing practices. Gorsuch also defended telecommunications company SBC Communications, Inc. during his tenure at Kellogg when a rival company alleged that SBC set forth an illegal tying arrangement. The US District Court for the Eastern District of Texas dismissed the tying count in 2004.

President George W. Bush appointed Gorsuch to the US Court of Appeals for the Tenth Circuit in 2006. In this role, Gorsuch authored several antitrust decisions. In 2009, Gorsuch wrote Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 582 F.3d 1216 (10th Cir. 2009), where he held that a hospital’s refusal to allow a physician to use its inpatient nephrology facilities did not violate the Sherman Act or Colorado law. In 2011, Gorsuch reversed a district court’s ruling in Kay Electric Cooperative v. City of Newkirk, Okla., 647 F.3d 1039 (10th Cir. 2011) after finding that a municipality’s electricity provider was not immune from antitrust liability under the state action immunity doctrine.

In 2013, Gorsuch authored his most well-known antitrust opinion, Novell v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013). In this case, plaintiff Novell accused Microsoft of maintaining monopoly power over its operating systems by withholding intellectual property from rival software developers. Gorsuch determined that Microsoft’s purely unilateral conduct did not violate the Sherman Act and that “[f]orcing monopolists to hold an umbrella over inefficient competitors might make rivals happy but it usually leaves consumers paying more for less.” Id. at 1072 (internal citations omitted).

With background in representing plaintiffs and defendants and deciding cases in favor of both sides, Gorsuch’s policies about antitrust laws are not entirely clear. However, in his most recent and well-known case, Novell v. Microsoft, Gorsuch stated “[t]he antitrust laws don’t turn private parties into bounty hunters entitled to a windfall anytime they can ferret out anticompetitive conduct lurking somewhere in the marketplace.” Id. at 1080. This language may indicate a preference for a less interventionist approach to competitor conduct relating to its intellectual property.

With an extensive antitrust background, it will be interesting to see whether the Senate ultimately confirms Gorsuch (they did so eleven years ago unanimously) and, if so, whether antitrust issues reach our nation’s highest court.

Sixth Circuit: “Single-Network” Hospitals Not Exempt from Section One Scrutiny

by McDermott Will & Emery | Mar 30, 2016 | Healthcare Antitrust, Joint Ventures/Competitor Collaboration

On March 22, 2016, the U.S. Court of Appeals for the Sixth Circuit allowed a claim to proceed under § 1 of the Sherman Act against four hospitals acting as a single network under a joint operating agreement. Med. Center at Elizabeth Place, LLC v. Atrium Health Sys., No. 14-4166 (6th Cir. Mar. 22, 2016). A divided panel reversed the ruling of the district court, which had granted summary judgment for the defendant hospitals on the premise that they were operating as a single entity and therefore had not engaged in concerted action subject to § 1. The Sixth Circuit’s opinion sheds light on a topic of growing importance in the health care industry: how to distinguish a lawful joint venture from a horizontal conspiracy.

To answer that question, the majority examined “the nature of the business relationship among the defendants, focusing on whether that relationship remain[ed] that of separate, competing entities or whether there [was] a single center of decisionmaking.” Id. at 10 (citing American Needle, Inc. v. Nat’l Football League, 560 U.S. 183 (2010)). Even though the joint venture was “a separate corporate entity with its own management structure” and the “joint operating agreement provide[d] for sharing revenue pursuant to an agreed upon formula,” the court decided the record supported a conclusion that defendants were separate actors capable of conspiring under § 1. Id. In support of this conclusion, the court cited evidence that the intention behind the joint venture was to prevent the plaintiff hospital from entering the local health care market. Id. at 4 (for example, evidence that defendant’s executive told plaintiff, “you are the enemy [and] this is war”). Additional facts supporting this conclusion included that the hospitals “remain[ed] separate legal entities, each with their own assets, filing their own tax returns and maintaining a separate corporate identity with its own CEO and Board of Directors.” Id. at 11. Further, the hospitals continued to compete with each other for physicians and patients and to make their own decisions regarding staffing and patient care. Id.

In recent years, as antitrust regulators have subjected mergers in the health care arena to increasing scrutiny, many have viewed joint operating agreements as an attractive alternative. The Sixth Circuit’s opinion in Elizabeth Place serves as an important reminder that courts “look[] beyond labels” in distinguishing lawful joint venture activities from concerted conduct subject to § 1. Id. at 7. In other words, a formal joint operating arrangement will not spare accused conspirators from antitrust scrutiny, particularly in the face of evidence of anticompetitive intent. Companies should exercise caution to avoid the appearance that a joint venture is being used as a tool to harm competitors or eliminate competition. In both internal documents and external communications, companies should avoid the use of war-like words that may signal anticompetitive intent or effect. It is always prudent to involve counsel in communications with competitors, as these communications pose the highest level of antitrust risk.

Second Circuit Refuses to Stay Injunction During American Express Appeal

by Emily Townsend | Jun 23, 2015 | DOJ Developments

On Tuesday, the U.S. Court of Appeals for the Second Circuit rejected American Express Co.’s request to stay an injunction ordered by a judge in the Eastern District of New York which prevented Amex from imposing certain anti-steering rules on merchants. U.S. et al. v. American Express Co., et al., Case No. 15-1672. In 2010, the U.S. Department of Justice brought suit against Amex alleging that the anti-steering rules were anticompetitive, and, after a seven week trial held during the summer of 2014, District Judge Nicholas Garaufis agreed. Case No. 1:10-cv-04496. In February 2015, using a rule-of-reason analysis, Judge Garaufis, determined that the policies caused an adverse effect on competition and, thus, violated the Sherman Act. On April 30, 2015, he entered an injunction to “allow[] Merchants to attempt to influence the [credit card] that a Customer uses.” Therefore, the injunction prohibited Amex from adopting or enforcing any rule that prevented merchants from offering discounts or incentives to customers for using a particular card; from promoting the use of a particular card; from expressing a preference for the use of a particular card; or from explaining to the customer the costs that the merchant incurred by the use of a particular card (Order Entering Permanent Injunction as to the American Express Defendants at 5-6 (No. 638)). Amex appealed Judge Garaufis’s ruling to the Second Circuit. It also asked the Second Circuit to stay the injunction pending the appeal, arguing that the injunction would cause irreparable harm to Amex through the loss of sales and market share. The request was denied.

Shipping Executive Acquitted of Antitrust Charge

by Gregory E. Heltzer | May 18, 2015 | Cartel Enforcement, DOJ Developments

On May 8, 2015, a jury in Puerto Rico acquitted Thomas Farmer (Farmer), the former vice president of price and yield management for Crowley Liner Services, Inc., of conspiring to suppress and eliminate competition in violation of Sherman Act, Section 1. The case is United States v. Thomas Farmer (3:13-cr-00162) in the United States District Court for the District of Puerto Rico.

In March 2013, the United States Department of Justice (DOJ) indicted Farmer. The DOJ accused him of conspiring with competing shipping companies, from mid-2005 through April 2008, to fix rates and surcharges for freight transported between the United States and Puerto Rico. The DOJ alleged that Farmer and competing shipping executives participated in meetings, conversations, and communications where they agreed to allocate customers; fix and inflate prices; and rig bids submitted to government and commercial customers. The type of freight in the alleged conspiracy included heavy equipment, medicines, food, beverages and consumer goods.

While the jury acquitted Farmer, other shipping executives have either pled or been found guilty of similar charges. In January 2013, a Puerto Rican jury convicted, Frank Peake (Peake), the former president of Sea Star Line LLC. Peake was sentenced in December 2013 to five years in prison, which at the time was the longest prison sentence for a Sherman Act violation. In addition, five other shipping executives have pled guilty and been sentenced to prison terms ranging from seven months to four years.

Seventh Circuit Upholds Dismissal of Text Messaging Price-Fixing Claims

by Emily Townsend | Apr 16, 2015 | Cartel Enforcement, Private Litigation

On Thursday, April 9, 2015, the Seventh Circuit affirmed the district court’s grant of summary judgment for AT&T Mobility LLC, Verizon Wireless LLC, T-Mobile USA Inc. and Sprint Corp., in a text messaging price-fixing litigation. In re Text Messaging Antitrust Litigation, case number 14-2301. Plaintiffs alleged that these wireless telephone providers and a trade association to which those companies belong, The Wireless Association, conspired to raise the price of “price per use” text messages from 2005 to 2008 in violation of Section 1 of the Sherman Act. In May 2014, the district granted defendants’ motion for summary judgment, and the plaintiffs appealed. On appeal, the plaintiffs argued that the lower court’s ruling should be reversed because 1) they uncovered “smoking gun” emails showing a defendant employee admitting to collusive behavior, 2) the risk of losing customers made it irrational for the providers to raise the price unless they agreed to all implement increases and 3) The Wireless Association orchestrated the exchange of information between defendants. The Seventh Circuit found these arguments unpersuasive.

In writing the opinion for the Seventh Circuit, Judge Richard Posner explained that “follow-the-leader” pricing, also known as “conscious parallelism” or “tacit collusion,” does not violate the Sherman Act. Instead, to survive summary judgment, plaintiffs must present sufficient evidence of “express collusion.” The plaintiffs failed to do so. First, Posner addressed the plaintiffs’ purported “smoking gun” e-mails from a T-Mobile employee. In one of these e-mails, the employee called a T-Mobile price increase “collusive [sic] and opportunistic.” Upon a review of the language in the smoking gun e-mails as well as other missives from this employee, Posner determined that nothing in the e-mails suggested that the employee was accusing T-Mobile of express collusion; the e-mails were discussing legal, follow-the-leader pricing. In fact, Posner even admonished the plaintiffs for wasting so much of the space in their briefs on these e-mails. Second, Posner explained the weaknesses in the plaintiffs’ argument that, but for an agreement with its competitors, a provider would not risk losing customers to raise the price. Mainly, this argument ignored the fact that a seller cares about total revenues, not the number of customers. Even if a seller loses a third of its customers by doubling its price, then the seller is still earning greater revenues. Third, Posner found the plaintiffs’ argument that defendants colluded at trade association meetings unconvincing. Because the plaintiffs offered no evidence regarding the content of the information exchanged at these meetings, the court had no basis to infer that the gatherings were used for collusive purposes. Overall, the plaintiffs’ evidence was equally consistent with independent behavior as it was with conspiracy and, therefore, insufficient to overturn the lower court’s summary judgment ruling.

Third Circuit Remands Class Certification Ruling in Blood Reagents Price-Fixing Case

by Emily Townsend | Apr 15, 2015 | Cartel Enforcement, Private Litigation

On Wednesday, April 8, 2015, the Third Circuit Court of Appeals vacated a district court’s order certifying a class of direct purchasers of blood reagents in a price-fixing suit against Ortho-Clinical Diagnostics Inc. In re Blood Reagents, case number 12-4067. Plaintiffs allege that Ortho-Clinical Diagnostic Inc. (Ortho) and a producer of blood reagents, violated Section 1 of the Sherman Act by conspiring with the only other U.S. producer of reagents, Immucor Inc., to raise prices of blood reagents on numerous occasions throughout the 2000s. Immucor settled with plaintiffs in 2012. In September 2011, the plaintiffs moved to certify a class of direct purchasers, and the district court held a hearing in July 2012. To support their arguments for class certification, the plaintiffs relied on expert testimony to create their damages model and antitrust impact analysis. Although Ortho challenged the reliability of the expert testimony, the district court certified the class and held that the testimony “could evolve to become admissible” at trial. In re Blood Agents, 283 F.R.D. 222, 243-245 (E.D. Pa. 2012). Ortho’s arguments went to the merits and were not persuasive at the class certification stage. Id. at 240-41. In making this ruling, the court relied on the Third Circuit decision of Behrand v. Comcast Corp., 655 F.3d 182 (3d. Cir. 2011). Ortho appealed.

The Third Circuit vacated this class certification decision and remanded the case back to the lower court. Since the district court’s ruling, the Supreme Court overturned Behrand and the “could evolve” standard relied on by the lower court in this case. Comcast v. Behrand, 133 S.Ct. 1426 (2013). Instead, the Supreme Court emphasized that the class certification analysis must be rigorous. Id. at 1432. Therefore, the Third Circuit determined that this “rigorous analysis” applied to expert testimony critical to proving class certification. It held that if challenged expert testimony is critical to class certification, then plaintiffs cannot rely on this challenged testimony to show conformity with the class certification requirements unless they also establish, and the trial court finds, that the testimony satisfies the standard for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). According to the Third Circuit’s order, on remand, the district court must first determine which, if any, of Ortho’s attacks on the expert’s reliability challenge the aspects of the expert testimony offered by the plaintiffs to satisfy class certification requirements. Then, if necessary, the lower court must perform a Daubert analysis on this testimony before deciding whether to certify the class.

Supreme Court Asked to Clarify the Reach of U.S. Antitrust Laws to Foreign Conduct

by Louise Aberg and Lisa A. Peterson | Mar 24, 2015 | Cartel Enforcement, DOJ Developments, Private Litigation

On March 16, 2015, AU Optronics Corporation America Inc. (AU Optronics) and Motorola Mobility LLC separately asked the U.S. Supreme Court to clarify the Foreign Trade Antitrust Improvements Act (FTAIA) and the extent to which its language allows foreign conduct to be brought within the scope of the Sherman Act. The requests for review follow from potentially conflicting holdings from the Seventh and Ninth Circuits in cases that stem from distinct interpretations of the same provisions in the FTAIA and involve the very same conduct – AU Optronics’ and its co-conspirators’ agreement overseas to fix the prices of liquid crystal display (LCD) panels. The cases have different procedural foundations in that the Ninth Circuit case is a criminal suit brought by the Department of Justice (DOJ), while the Seventh Circuit case is a civil matter in which private parties are seeking damages.

In Hsiung,[i] AU Optronics appeals the Ninth Circuit’s holding that the Sherman Act via the FTAIA can support criminal charges against foreign cartel conduct. In that case, the court had affirmed AU Optronics’ conviction in July 2014 and rendered an amended opinion on January 30, 2015. Meanwhile, Motorola Mobility appeals the Seventh Circuit’s finding in Motorola Mobility[ii] that a civil price-fixing claim against the same cartel could not be supported under the same provisions of the FTAIA. The Seventh Circuit decided the case on November 26, 2014 (after vacating a previous opinion from March 2014) and later amended its opinion on January 12, 2015. The companies believe that these interpretations of the FTAIA are conflicting and, therefore, ripe for Supreme Court review.

The FTAIA was adopted to clarify the enforcement scope of U.S. federal antitrust laws as applied to anticompetitive conduct that occurs abroad. Since its enactment, however, lower courts have interpreted the FTAIA differently, which has led to conflicting decisions and legal uncertainty. Under the FTAIA, all foreign conduct is placed outside the scope of the Sherman Act, unless (1) the alleged conduct involves import commerce (import commerce exemption) or (2) it has a “direct, substantial, and reasonably foreseeable effect” on U.S. commerce and the criminal charge or civil claim “arises from” that effect (domestic effects exception).

The circuit courts interpreted certain language in these provisions differently, specifically “import commerce” and “direct effect,” and when such effect “gives rise to a Sherman Act claim.” In Hsiung, the Ninth Circuit considered import commerce to be any conduct affecting an import market, which means that it need not be shown that a foreign defendant directly imported goods himself into the U.S. As to the domestic effects exception, the Ninth Circuit further explained that foreign conduct has a direct effect on U.S. commerce where the conduct “follows as an immediate consequence of the defendant[s’] activity.” According to the court, AU Optronics’ conduct had a direct effect on U.S. commerce that gave rise to a Sherman Act claim because the price-fixed goods manufactured abroad were a significant component of [...]

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Parking Heater Manufacturer Pleads Guilty to Price-Fixing

by Young Cynn | Mar 17, 2015 | Cartel Enforcement, DOJ Developments

On March 12, 2015, the U.S. Department of Justice (DOJ) announced that Espar Inc., pleaded guilty to one count of price-fixing under the Sherman Act in a scheme involving parking heaters for commercial vehicles that ran from October 2007 through December 2012. Parking heaters heat the inside of a vehicle when the engine is not running.

According to the press release, Espar, a parking heater manufacturer, agreed to pay a criminal fine and cooperate in the DOJ’s ongoing investigation. Espar and its co-conspirators discussed prices for parking heaters and agreed to set a price floor for parking heater kits sold to aftermarket customers. Further, the companies agreed to coordinate the timing and amount of price increases, and enforced the agreement by exchanging information. Investigation into the other companies is ongoing, with assistance from the Federal Bureau of Investigation.

Although the judge initially agreed to Espar’s and DOJ’s joint request to waive the pre-sentence investigation report and schedule sentencing on the same day as the plea hearing, the judge later changed his mind. The judge stated in his order that his review of the pre-sentence report would ensure that “the agreed-upon fine is not too modest” and address any concerns that the terms of the plea agreement may implicate Fifth Amendment issues for individual employees who are required to cooperate with DOJ. Espar’s plea agreement is still subject to court approval, and sentencing is scheduled for June 5, 2015. The maximum fine for price-fixing in violation of the Sherman Act for corporations is either $100 million, or the amount twice the gain derived from the crime or twice the loss suffered by the victims—whichever is greater.

DOJ Assistant Attorney General Bill Baer stated that the “plea demonstrates the Antitrust Division’s commitment to holding companies accountable for conspiracies that fix prices on parts used in every day products,” and that “[t]he Antitrust Division will vigorously prosecute companies that engage in schemes that subvert normal competitive processes and defraud American consumers and businesses.”

FTC Competition Chief Defends Stand-Alone Section 5 Use in Unfair Competition Cases

by Young Cynn | Mar 16, 2015 | FTC Developments

In a blog post last Friday, Debbie Feinstein, Director of Competition at the Federal Trade Commission (FTC), defended the agency’s use of FTC Act Section 5 to target unfair methods of competition outside the scope of the Sherman and Clayton Acts.

While the use of Section 5 in consumer protection cases has long been established, many, including U.S. Congress members and FTC Commissioners, have urged the FTC in recent years to issue clearer guidelines on how Section 5 will be used to target conduct related to unfair methods of competition. Feinstein suggested that those interested in the FTC’s future use of Section 5 “should look at what the Commission has done and the reason it gave for acting to stop the behavior. . . . The touchstone of every stand-alone Section 5 claim . . . is likely or actual harm to competition or the competitive process.”

Feinstein pointed specifically to invitation to collude cases as a prime example of the type of conduct prosecuted in a stand-alone Section 5 action. The FTC first brought an invitation to collude case in the early 1990s, see Quality Trailer Products, 115 F.T.C. 922 (1992), in which Quality Trailer Products employees visited a competitor and urged it to raise its prices while stating that Quality Trailer would also raise prices. Since that time, the FTC has continued to use Section 5 to bring actions in invitation to collude cases. Most recently, the FTC brought complaints against two internet resellers of UPC barcodes in July 2014, alleging they had sent messages to one of their competitors proposing a scheme to raise their prices in line with the prices of another competitor. Feinstein suggested that the large number of cases brought unanimously by the Commissioners “demonstrates that we are using our stand-alone Section 5 authority responsibly.”

Feinstein also noted that nearly all stand-alone Section 5 cases brought by the FTC have resulted in an injunctive remedy — “I want to underscore that the Commission’s policy is not to seek disgorgement in stand-alone Section 5 cases. . . . Without the threat of a monetary penalty (let alone treble damages), I find it hard to understand the claim that significant procompetitive conduct is chilled by the possibility that the FTC may use its stand-alone Section 5 authority in some unforeseen way.”

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