Five more for the road

by Skip Oliva on January 1, 2007

I’d like to thank Walter and Ted for letting my play in their sandbox this past week. Before I go, I’d like to highlight a few more antitrust cases and stories to watch in 2007:


  • South Carolina State Board of Dentistry v. FTC. This Friday, the Supreme Court will consider a certiorari petition from the South Carolina Board to review a Fourth Circuit decision that rejected an appeal from a motion to dismiss an administrative complaint before the FTC. The FTC’s complaint seeks to prevent the Board from adopting rules in the future that restrict the ability of dental hygienists to perform certain dental procedures. The Board moved to dismiss the complaint citing state action immunity from the antitrust laws. The FTC rejected the motion, and the court of appeals declined to review the matter until the Commission conducted a hearing on the merits.
  • Chicago Bridge & Iron Company v. FTC. The Fifth Circuit will hear oral arguments this year on a petition to review an FTC order (issued two years ago) to undo a merger consummated nearly six years ago. This case will test the limits of “post-merger” reviews by the federal government, a small but growing area of antitrust enforcement.

  • In June, the Antitrust Modernization Commission, a panel of antitrust lawyers appointed by the White House and Congress, will issue its final report on revising the antitrust laws.
  • Also in June, an FTC administrative law judge is expected to conduct a hearing on the Commission’s complaint against a Michigan Realtor group. The FTC has charged several Realtor groups nationally with illegally restricting access to Internet-based Multiple Listing Services. The Michigan group, RealComp II, is the only defendant to contest the FTC’s charges to date. Separately, a DOJ lawsuit against the National Association of Realtors regarding its MLS policies will move closer to trial.
  • A district judge in Washington will rule sometime this year on a Freedom of Information Act complaint filed by Stolt-Nielsen Transportation Group against the Department of Justice. As I discussed previously, Stolt-Nielsen is the defendant in a criminal antitrust case in Philadelphia; the company has filed multiple FOIA requests seeking information on the Antitrust Division’s operations, specifically the Corporate Leniency Policy. The DOJ has historically kept the public in the dark about specific “leniency” agreements, to the point of never disclosing the identity of amnesty recipients. Stolt-Nielsen’s FOIA litigation could change these policies.