- Joe Nocera’s recent column on the Vioxx settlement infuriated loyalists of the plaintiff’s bar, and they won’t like his new one on lead paint litigation much better [NY Times]
- Trial of Overlawyered favorite Jack Thompson over ethical charges leveled by Florida bar wraps up, but judge won’t rule right away [GamePolitics earlier, more recent posts]
- Two joggers hit by driver alongside Pacific Coast Highway will share $49 million from city of Dana Point — allegedly the bike lane was too wide — so now here come the concrete barriers [LA Times]
- Do makers of anti-PC documentary “Indoctrinate U.” owe cash to Indiana U. for infringing on its logo? [Maloney, OpinionJournal, Coleman] Update Dec. 11: settled.
- Casselberry, Fla. cop who sued parents after boy’s near-drowning in pool has now lost her job following public outcry over the incident [Orlando Sentinel; earlier]
- Lawyer who says he was defamed by commenters on DontDateHimGirl.com is back in court [Pittsburgh Post-Gazette, Ambrogi, On Point; earlier here, here, etc.]
- Outspoken blog of BU prof Dr. Michael Siegel ticks off “tobacco control” activists [Beam, Globe]
- Warning label alert: old Sesame Street episodes unsafe for children? [Stier, Wash. Times]
- Furor mounts in and out of Canada over “human rights” complaint against Maclean’s over Mark Steyn book excerpt [Wente, Globe and Mail; Eteraz, UK Guardian; Steyn, NRO; Kimball]
- Judge rejects lawsuit by animal rights group challenging UCSF animal testing [SF Chronicle]
- New at Point of Law: How do all those big cases wind up in Judge Jack Weinstein’s court, anyway?; latest Richard Epstein podcast is on antitrust, Microsoft, AT&T, etc.; abuse of the Family and Medical Leave Act; welcome new contributor Marie Gryphon; Yale Law clinic sues Yale-New Haven Hospital; bar official dismisses concerns about cy pres slush funds; breastfeeding accommodation on the job, via lawsuit?; just what New York needs, a new state law school at Binghamton; and much more.
Posts Tagged ‘antitrust’
September 2007 Class Action Watch
In the latest issue of the Federalist Society’s Class Action Watch, Mark Behrens and Christopher Appel look at recent rulings from the New Jersey and Missouri Supreme Courts that reject lead paint public nuisance claims. James Beck looks at the American Law Institute’s “Principles” projects. Brian D. Boyle and Julia A. Berman look at fact-based scrutiny in securities and antitrust actions. Jessica D. Miller and Nina Ramos look at fluid recovery. Kenneth J. Reilly and Frank Cruz-Alvarez look at an Eleventh Circuit case that may have set a new standard for federal diversity jurisdiction. Last, but not least, there is a front-page article from me analyzing an omission in the Fair Credit Transactions Act (FACTA) that might provide a substantial windfall for the plaintiffs’ bar.
September 13 roundup
- Pearson Pants update: dry cleaners offered to drop their fee demand if Pearson would end case, but he declined [Marc Fisher, other Washington Post coverage, Beldar]
- Check your oil, ma’am? On second thought, if it’s going to get us sued, never mind [Reiland/Pittsburgh Tribune-Review]
- “Surprising and uncommon” resolution of med-mal case: Nebraska Methodist Health System admits error, cooperates with family on video memorializing victim and educating other hospitals about aortic dissection [Omaha World-Herald, Chamber reprint]
- Heated email exchange between perennial Overlawyered favorite Jack Thompson and Take Two game company exec [Ambrogi]
- Putting her image on a Hallmark card? Now that’s degrading and exploitative enough to make Paris Hilton want to sue [K.C. Star]
- Uncle sues nephew over season tickets to Chicago Bears at 40-yard line [Crain’s Chicago Business]
- Hurt her teeth on McDonald’s cherry pie, hurt her teeth on cheeseburger soon after — and what’s this about forged dental-work receipts? [Seattle Times]
- Wisconsin snuff users may soon be rolling in coupons following settlement of antitrust class action, lawyers to pocket $17 million [AP/Green Bay Press-Gazette]
- New at Point of Law: fiasco of UC Irvine’s withdrawn offer to Chemerinsky; judge says $500/hr is enough for lawyers in Northwest bankruptcy; law firm advertises for heart attack victims to sue over lack of defibrillators in public places; Astroturf detected in Washington-state insurance-suit referendum fight; NY Times takes skeptical look at Mount Sinai’s Selikoff Center; Jerry Brown sure fooled us, says San Diego paper; Ted expands his empire; and much more;
- A topic on which we’ve had a lot to say over the years — to what extent does the Americans with Disabilities Act apply to websites? — may be heating up again [Corporate Counsel]
- Thanks for the incoming links from, among others, Instapundit (on Ted’s reclining-car-seat post, which has drawn a bodacious number of comments), Patterico (on Jarek Molski), Bainbridge (on animal welfare laws), and Adam Smith Institute (on lawyers suing each other: “Such a pity that only one side can lose”.)
Wright on Frank on Chemerinsky on Roberts
Josh Wright expands on my line “we all know darn well that many ‘pro-business’ legal rules favor consumers and employees as a group ex ante,” and is even harsher with Chemerinsky than I was:
[W]hat gets me about this section is the heading: “Supreme Court favors businesses over consumers.” Is that really what these cases are about? I have read political accounts of the Supreme Court opinions in newspapers and periodicals or blogs that read this way (”The Roberts Court wants to stick it to the consumer — I can prove it: the Defendant won in all 4 cases this term”). But I’ve not heard law professors take this route too often, and never an antitrust commentator. In fact, a reasonable reading of the Court’s antitrust output this year suggests that the issues are much more nuanced than this oversimplified soundbite that pits business against consumers.
Is Leegin a pro-business and anti-consumer decision? I’m not sure I even know what that means in this context. … Justice Kennedy’s opinion on behalf of the majority does allow manufacturers to engage in behavior that was previously constrained. Perhaps that is a sufficient condition for a pro-business label? On the other hand, the very reason the Court overturned the per se rule was the result of evidence that minimum resale price maintenance made consumers better off! Now, one might think that the Court got it wrong and that RPM actually harms consumers. … But to argue that the Court got there by favoring business over consumers is not accurate, and obvious from reading the opinion.
Earlier on Leegin: Skip Oliva, Jul. 26.
See You Some Other Time!
It’s time to end my week of guest-blogging here. Thanks again to Walter Olson and Ted Frank for indulging my ramblings. Since I’ve used most of my posts to dwell on the evils of antitrust regulation, I’d like to try and go out on a more positive note.
Equal Protection v. Anticompetitive Prices
It’s difficult to reconcile the American concept of “equal justice under law” with the Federal Trade Commission’s motto, “Protecting America’s Consumers.” The implication is that there is one set of laws for consumers and another set—affording lesser protection—for producers and sellers. This conflict presents itself in all “consumer protection” laws, and it stems from an awkward premise: That in any given economic exchange, the party trading cash holds the legal and moral high ground over the party trading a good or service.
Put another way, try to fashion a consumer protection or antitrust law in a purely barter economy. If A trades two pounds of flour to B in exchange for a bushel of apples, which party is the “consumer” entitled to government protection? It’s easy to apply common law principles regarding fraud to such a transaction, but virtually impossible to employ contemporary consumer protection standards, which require a presumption that one trader is good and the other is bad.
The High Cost of Doing Little
Last week the Federal Trade Commission and the Justice Department’s Antitrust Division issued their annual report on the Hart-Scott-Rodino Act (HSR Act), which requires companies to pre-report mergers over a certain value to antitrust regulators so they can preemptively determine if a deal is “likely to have an anticompetitive impact.” (It’s amazing that people with such amazing economic forecasting abilities are employed as mere government lawyers.)
Despite the occasional high-profile merger challenge, like the FTC’s recent lawsuit to stop Whole Foods from acquiring Wild Oats, very few deals face antitrust roadblocks. In the fiscal year 2006, the FTC and DOJ issued second requests for information—the first step towards a formal challenge—in only 2.6% of reported mergers. This is slightly below the ten-year average of 3.01%.
Fighting Collusion with Collusion
Last week a Connecticut jury acquitted Stora Enso North America Corp. of criminal “price fixing” charges. The Justice Department indicted Stoa Enso last December for allegedly selling coated magazine paper at “anticompetitive” prices. It’s rare for any company to go to trial on criminal (or even civil) antitrust charges, and an outright not-guilty verdict is even rarer: In the last ten years, the Antitrust Division’s criminal won-loss record is a robust 454-11.
The Antitrust Division’s success in convicting price fixing defendants can be attributed to the Corporate Leniency Policy, an invention of Division lawyers that allows one company in a purported “cartel” to escape all criminal prosecution in exchange for providing evidence against other firms. It’s a terrific bargain. A company can inflict maximum damage on its competitors—who face large criminal fines and treble damages in subsequent civil lawsuits—while prosecutors are generally ensured of quick plea bargains from their remaining targets.
When is a court decision “pro-business”?
Common journalistic practice says that a court decision is pro-business when it favors a corporate defendant over a plaintiff. Conservatives are also said to be pro-business while liberals are pro-plaintiff or pro-consumer. This is how the press frames most discussions of tort and regulatory litigation.
In the last Supreme Court term, a 5-4 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc. was hailed and condemned (depending on who you ask) as a pro-business decision. The conservative majority, led by Justice Kennedy, overruled a 1911 precedent that condemned “resale price maintenance” (RPM)—contracts where a manufacturer conditions sales to distributors on setting a specific retail price—as an automatic violation of the Sherman Act. Most antitrust challenges are subject to the rule of reason, and after years of complaints from mainstream economists, the Leegin majority acquiesced in ending RPM’s special status under the “per se” rule.
Corporate Governance and Regulatory Reform
A few years ago, I was drafting some public comment letters to the FTC and DOJ in a series of cases where the regulators accused physician groups of “price fixing” during contract talks with third-party insurers. While reviewing three separate cases involving physician groups in different markets, I noticed that the defendants all retained the same defense lawyer. Further research revealed that said lawyer previously worked at the FTC, where he developed the very theory of antitrust liability now being used against his clients. Indeed, this lawyer authored a book on the policy.