Government Not Required to Identify Exculpatory Evidence in
On Dec. 23, 2011, a district court denied a motion to compel filed by defendants
in ongoing litigation regarding alleged price fixing in the market
for liquid crystal display panels used in computers and
televisions. Defendants had sought to require the government to
identify where in the voluminous discovery produced certain
exculpatory material exists, arguing that the government had failed
to comply with its obligations under Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S.
150 (1972). But the court ruled that the government has no
obligation to affirmatively identify particular pieces of
exculpatory evidence, nor is it required to produce internal
communications relating to plea negotiations absent a separate
basis for disclosure.
Canadian Competition Bureau Updates Merger Review
On Jan. 11, 2012, the Canadian Competition Bureau issued revised
Merger Review Process Guidelines, updating the
guidelines originally published in September 2009. The guidelines
describe the Bureau's general approach to administering its
two-stage merger review process, which is applicable to proposed
transactions that exceed certain thresholds and are subject to
mandatory premerger notification filing under the Competition Act.
The Act establishes an initial 30-day waiting period during which
the parties cannot close the transaction. This initial waiting
period can be extended if the Bureau issues a supplementary
information request (SIR) – similar to "second
requests" issued in the United States – to obtain
more information to determine the competitive impact of the
transaction. The amendments to the merger review process do not
affect the Bureau's substantive approach to merger review.
Antitrust Division Continues to Prioritize Criminal Enforcement
On Dec. 7, 2011, Acting Assistant Attorney General Sharis Pozen
testified before Congress that the Antitrust
Division "obtained over $520 million in criminal fines"
during Fiscal Year 2011 (the period running from Oct. 1, 2010
through Sept. 30, 2011). The Division filed 90 criminal cases
– the highest number of criminal cases filed in the last
20 years, and a significant increase from the 60 criminal cases
filed in Fiscal Year 2010 – charging 27 corporations and
82 individuals, and courts imposed 21 separate jail terms, totaling
10,544 days of jail time. The Division's criminal
investigations and cases have focused on a variety of industries,
including real estate, auto parts, financial services, air
transportation services, freight forwarding and liquid crystal
UK Office of Fair Trading Announces Results of Compliance
In December 2011, the UK Office of Fair Trading issued a report assessing the impact of competition law
on compliance measures adopted by UK companies. More than 800
companies were surveyed as part of a study considering what drives
businesses to comply withh competition law and what deters them
from trying to infringe it. Additional information is available in
December 2011 EU Competition Law Compliance Update.
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An interesting and growing debate in the antitrust arena is whether most favored nation ("MFN") pricing provisions are pro-competitive or anticompetitive. For many years, MFN provisions have been considered a fairly noncontroversial contract term included by purchasers in an attempt to assure that other buyers do not receive a more favorable price.
A well-attended program on antitrust treatment of "bundled pricing" and "loyalty discounts" at the American Bar Association Antitrust Section Spring Meeting highlighted the confusion generated by the antitrust law implications.
In remarks made this week at the International Competition Network annual conference, Federal Trade Commission (FTC) Chairwoman Edith Ramirez stated that health care will continue to be a top priority for the FTC.
An EU General Court (GC) judgment has considered the difficult issue of independent parallel behaviour by competitors under EU competition law, and in particular when this strays into a "concerted practice".
The U.S. Department of Justice ("DOJ") has reached a settlement with Anheuser-Busch InBev ("ABI") and Grupo Modelo S.A.B. de C.V. ("Modelo"), requiring ABI to divest Modelo’s entire U.S. business to Constellation Brands Inc. ("Constellation").
Microsoft v. Motorola is precedential only in the Western District of Washington, but at 207 thorough and well-reasoned pages, it provides a valuable roadmap and will likely be quite influential in future RAND cases in other U.S. and foreign jurisdictions.