Antitrust & Trade Regulation Report - Williams Mullen S. Rockefeller, Chairman Competition Law Institute Washington, D.C. Kevin J. Arquit Simpson Thacher & Bartlett LLP New York, N.Y.

H I G H L I G H T S

Pozen Resigns As Acting Division Chief, Will Leave DOJ At End Of AprilActing Assistant Attorney General Sharis A. Pozen, who directs DOJ’s Anti-trust Division, announces her departure, effective April 30, from the ObamaAdministration. Attorney General Eric Holder lauds her accomplishmentsduring her tenure in the division. Page 97

Supreme Court Applies Fourth Amendment To Warrantless GPS TrackingThe location information gathered by global positioning system devices fallswithin the protection of the Fourth Amendment, according to a unanimous de-cision by the U.S. Supreme Court. All nine justices reject the Solicitor Gener-al’s argument that location information is not private for Fourth Amendmentpurposes, but the Court splits 5-4 over exactly how far to take the warrant re-quirement in this case. Page 95

Printouts Of Partial Expiration Dates Violate FACT Act, Third Circuit HoldsMerchants violate the Fair and Accurate Credit Transactions Act’s ban againstprinting payment card expiration dates even if they only print the month butnot the year when the card expires, according to a decision by the U.S. Courtof Appeals for the Third Circuit. Page 97

Older Version Of Dealership Act Applies To Michigan Dealer’s Kia ContractA Michigan dealership had no right to object to Kia Motors’ authorization of anew dealership more than six miles away because the relationship betweenKia Motors and the dealership is governed by the Michigan Motor Vehicle Actas it existed at execution of their agreement, the U.S. District Court for theEastern District of Michigan determines. Page 113

Baby FTC Act Plaintiffs Can Win Multiplier For Additional Counsel FeesThe district court incorrectly refused to apply a multiplier factor to the lode-star counsel fee awarded successful plaintiffs in an Unfair Practices Act case,the New Mexico Court of Appeals concludes. Page 110

Current, Former Officials Exchange Barbs Over Withdrawal Of ClearanceThere is a public row between French Competition Authority President BrunoLasserre and Guillaume Cerutti, former competition director in the FinanceMinistry, over the authority’s withdrawal of a merger authorization granted bythe ministry over five years ago. Page 114

FTC Won’t Seek Certiorari Of Attack On ‘Monopoly’ In Heart Drug MarketThe FTC decides, 3-1, not to seek Supreme Court review of an Eighth Circuitcase rejecting the agency’s challenge to alleged monopolization of the marketfor patent ductus arteriosus drugs by Lundbeck Inc. The dissenting commis-sioner laments that the decisions below ‘‘are about as erroneous as anymerger decisions can get.’’ Page 101

A L S O I N T H E N E W S

ENFORCEMENT: The newlyminted Consumer Financial Pro-tection Bureau and the FTC signa memorandum of understand-ing to promote effective coop-eration in their dual roles of pro-tecting consumers. Page 99

STATE AID: The European Com-mission rules that Europe’s lead-ing postal service provider, Ger-man company Deutsche Post,must repay as much as $1.3 bil-lion in illegal state aid receivedover the last decade. Page 114

DOMINANCE: The list of compa-nies to file antitrust complaintsagainst Google in the EuropeanUnion expands with up-and-coming shopping websiteTwenga claiming discriminationby the world’s largest searchengine, which allegedly hasaltered its search engine resultsin 2011 to favor its own onlineshopping services. Page 116

TELECOMMUNICATIONS: A newpolicy that will encourage Cana-da’s large telephone companiesto adopt rapidly InternetProtocol-based services acrosstheir networks will promote thedevelopment of innovative ser-vices and enhanced competition,according to remarks by theChairman of the CanadianRadio-television and Telecom-munications Commission justbefore his departure fromthe agency. Page 115

VOL. 102, NO. 2533 PAGES 91-122 JANUARY 27, 2012

COPYRIGHT � 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0003-6021

Antitrust & Trade Regulation Report™

Edwin S. Rockefeller, ChairmanCompetition Law InstituteWashington, D.C.Kevin J. ArquitSimpson Thacher & Bartlett LLPNew York, N.Y.Donald I. BakerBaker & Miller, PLLCWashington, D.C.Michael D. BlechmanKaye Scholer LLPNew York, N.Y.Robert E. BlochMayer Brown LLPWashington, D.C.John DeQ. Briggs, IIIAxinn, Veltrop & Harkrider LLPWashington, D.C.Michael F. BrockmeyerFrommer Lawrence & Haug LLPWashington, D.C.A. Neil CampbellMcMillan LLPToronto, Ontario, CanadaGerald A. ConnellStamford, Conn.Barry J. CutlerBaker & Hostetler LLPWashington, D.C.Joel DavidowCuneo Gilbert & LaDuca, LLPWashington, D.C.Ky P. Ewing, Jr.Bethesda, Md.Jay N. FastowDickstein Shapiro LLPNew York, N.Y.Eleanor M. FoxNew York UniversitySchool of LawNew York, N.Y.Calvin S. GoldmanBlake, Cassels & Graydon LLPToronto, Ontario, CanadaIlene Knable GottsWachtell, Lipton, Rosen & KatzNew York, N.Y.

David C. GustmanFreeborn & Peters LLPChicago, Ill.James T. HalversonUniversity Park, Fla.H. Stephen Harris, Jr.Baker & McKenzieWashington, D.C.Jay L. HimesLabaton Sucharow LLPNew York, N.Y.Lawson A.W. HunterStikeman ElliottOttawa, Ontario, CanadaHelene D. JaffeProskauer Rose LLPNew York, N.Y.Donald G. Kempf, Jr.Gleacher Partners Blaqwell Inc.Chicago, Ill.Rughvir K.S. KhemaniMiCRAWashington, D.C.Suyong KimHogan Lovells

International LLPLondon, EnglandRobert M. LangerWiggin & Dana LLPHartford, Conn.Abbott B. Lipsky, Jr.Latham & Watkins LLPWashington, D.C.Robert A. LongmanKasowitz, Benson, Torres &

Friedman LLPNew York, N.Y.Janet L. McDavidHogan Lovells US LLPWashington, D.C.

Mitsuo MatsushitaSeikei University School of LawTokyo, Japan

Joel M. MitnickSidley Austin LLPNew York, N.Y.

MJ MoltenbreyDewey & LeBoeuf LLPWashington, D.C.H. Laddie Montague, Jr.Berger & Montague, P.C.Philadelphia, Pa.Thomas D. MorganGeorge Washington University

Law SchoolWashington, D.C.Timothy J. MurisGeorge Mason University

School of LawFairfax, Va.Carolyn N. NaimanBlake, Cassels & Graydon LLPToronto, Ontario, CanadaR. Hewitt PateChevron Corp.San Ramon, Cal.Robert PitofskyGeorgetown University

Law CenterWashington, D.C.M. Laurence PopofskyOrrick, Herrington &

Sutcliffe LLPSan Francsisco, Cal.Mark S. PopofskyRopes & GrayWashington, D.C.Phillip A. ProgerJones DayWashington, D.C.Yvonne S. QuinnSullivan & Cromwell LLPNew York, N.Y.Michael J. ReynoldsAllen & OveryBrussels, BelgiumJames F. RillBaker Botts LLPWashington, D.C.Jonathan RoseArizona State University

College of LawTempe, Ariz.

Douglas E. RosenthalConstantine Cannon LLPWashington, D.C.Charles F. RuleCadwalader, Wickersham

& Taft LLPWashington, D.C.Irving ScherGreenberg Traurig LLPNew York, N.Y.Alan H. SilbermanSNR DentonUS LLPChicago, Ill.Tefft W. SmithKirkland & Ellis LLPWashington, D.C.Laurence T. SorkinCahill Gordon &

Reindel LLPNew York, N.Y.Charles S. StarkWashington, D.C.Richard M. SteuerMayer Brown LLPNew York, N.Y.Debra A. ValentineRio Tinto GroupLondon, EnglandSpencer Weber WallerLoyola University Chicago

School of LawChicago, Ill.Richard J. WegenerFredrikson & Byron, P.A.Minneapolis, Minn.Gabrielle H. WilliamsonHeuking Kuhn Luer

Heussen WojtekBrussels, BelgiumJames A. WilsonVorys, Sater, Seymour &

Pease LLPColumbus, OhioThomas M. Wilson IIITydings & Rosenberg LLPBaltimore, Md.

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News / Page 95

State News / Page 108

Franchising / Page 113

International News / Page 114

Journal / Page 119

Electronic Resources / Page 122

A D M I N I S T R AT I V E P R O C E D U R E

REGULATORY REVIEW FTC solicits public commentson wool products labeling rules .............................. 100

D E B T C O L L E C T I O N

CONSUMER CREDIT FDCPA plaintiff is entitled topartial default judgment against debt collector ............ 98

COUNSEL FEES FDCPA plaintiff wins fee award .......... 106

D E C E P T I V E P R A C T I C E S

HEALTH CARE FTC gets entry of settlements withacai berry supplement sellers ................................. 102

IMMIGRATION SERVICES FTC wins orders to haltoperators of phony immigration services business ..... 105

E U R O P E A N U N I O N

DOMINANCE Website Twenga is latest to complain ofGoogle search engine discrimination ....................... 116

MERGERS AND ACQUISITIONS EU okays joint controlof Global Via Inversiones ....................................... 118

STATE AID EU relaunches efforts to crack down onillegal subsidies to airports ..................................... 116

STATE AID Europe’s largest postal service is orderedto repay $1.3 billion in illegal subsidies .................... 114

F E D E R A L T R A D E C O M M I S S I O N

CONFERENCES FTC explores nuances of mobilepayments ............................................................ 107

ENFORCEMENT FTC and CFPB sign MOU to pledgecoordination for protection of consumers ................... 99

F R A N C H I S I N G

AUTOMOBILES Older version of dealership actapplies to Michigan dealer’s contract with Kia ........... 113

I N T E R L O C K I N G D I R E C T O R AT E S

THRESHOLDS FTC releases 2012 revisions of § 8thresholds for interlocking directorates .................... 104

I N T E R N AT I O N A L N E W S

CARTELIZATION Italian authority invokes strategy ofmediation to resolve alleged abuse .......................... 117

DEREGULATED INDUSTRIES French antitrust agencyclears plan to blunt dominance in weather forecasts ... 115

DOMINANCE French authority fines mobile operatorfor failure to comply with 2009 decision ................... 117

ENFORCEMENT Canadian government appointsacting chair of telecom agency ................................ 118

MERGERS Current official, former official exchangeverbal barbs over withdrawal of clearance ................ 114

MERGERS French agency raises no objection toconsolidation of sugar producers ............................. 116

REGULATED INDUSTRIES French agency favorsreliance on competition to solve distortions .............. 117

REGULATED INDUSTRIES Canadian telecom regulatoroutlines new policy to promote competition .............. 115

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InThis Issue

ANTITRUST & TRADE REGULATION REPORT ISSN 0003-6021 BNA 1-27-12

J U R I S D I C T I O N A N D P R O C E D U R E

DISCOVERY NCAA president is to be deposed ............. 102

REMAND Court accepts jurisdiction of TCPA claim ...... 107

J U S T I C E D E PA R T M E N T

ENFORCEMENT Brothers plead guilty to wire fraud....... 106

ENFORCEMENT Executive pleads guilty to conspiracy ... 107

PERSONNEL Pozen resigns as Acting Chief ofAntitrust Division, will leave DOJ at end of April ......... 97

M E R G E R S A N D A C Q U I S I T I O N S

DRUGS FTC won’t seek Supreme Court review ofattack on ‘‘monopoly’’ in heart drug market .............. 101

PREMERGER NOTIFICATION FTC releases 2012revisions to § 7A jurisdictional thresholds ................... 98

P R I VA C Y

CREDIT CARDS Printouts of partial expiration datesviolate FACT Act, Third Circuit holds ........................ 97

S TAT E N E W S

COUNSEL FEES Baby FTC Act plaintiffs can wincounsel fee multiplier ............................................ 110

DECEPTIVE PRACTICES California law exemptingcalls to customers won’t defeat TCPA claim .............. 110

PRICE FIXING Connecticut attorney generalannounces $175,000 settlement with DRAM makers ... 109

PRICE FIXING Defendants parry some Florida lawaccusations in flat panel case .................................. 111

PRICE FIXING Most flat panel retailer’s claims understate statute survive limitations attack ...................... 109

PRICE FIXING Office Depot loses some claims, keepsothers in flat panel case ......................................... 108

U N FA I R P R A C T I C E S

CLASS ACTIONS Final TCPA class settlement isapproved; lienholder takes part of plaintiff’s share ..... 103

CREDIT REPAIR Baby FTC Act, CROA claims are sentto arbitration with partially decertified class ............. 100

U . S . S U P R E M E C O U R T

DEBT COLLECTION Court rejects FDCPA case.............. 107

DEBT COLLECTION Court won’t review FDCPA case ..... 106

DEBT COLLECTION Court won’t review FDCPA case ..... 106

PRIVACY GPS tracking without warrant will offendFourth Amendment, Court rules ............................... 95

TYING ARRANGEMENTS Court won’t review tying ......... 105

TA B L E O F C A S E S

Atherton v. Gopin (N.M. Ct. App.) ........................... 110

Estrella v. Freedom Financial Network, LCC (N.D.Cal.) .................................................................. 100

Fein, Such, Kahn & Shepard PC v. Allen (U.S.) ......... 106

FTC v. Ambervine Marketing LLC (N.D. Ill.) ............. 102

FTC v. DLXM LLC (E.D.N.Y.) ................................ 102

FTC v. Dunlevy (N.D. Ga.) ..................................... 102

FTC v. Immigration Center (D. Nev.) ....................... 105

FTC v. Labra (N.D. Ill.) ......................................... 102

FTC v. Lee (N.D. Ill.) ............................................ 102

FTC v. Vaughn (W.D. Wash.) ................................. 102

Glen v. Law Office of W. C. French (D. Md.) .............. 98

Grannan v. Alliant Law Group, P.C. (N.D. Cal.) ......... 103

Heller v. HRB Tax Group, Inc. (E.D. Mo.) ................. 107

Kia Motors America, Inc. v. Glassman OldsmobileSaab Hyundai, Inc. (E.D. Mich.) ............................ 113

Law Offices of Mitchell N. Kay PC v. Lesher (U.S.) .... 107

Long v. Tommy Hilfiger U.S.A. Inc. (3d Cir.) .............. 97

NCAA Student-Athlete Name & Likeness Litigation,In re (N.D. Cal.) .................................................. 102

O’Rourke v. Palisades Acquisition XVI LLC (U.S.) ..... 106

Pullos v. Alliance Laundry Systems LLC (U.S.) .......... 105

Reed v. Firstsource Financial Solutions, LLC (S.D.Fla.) .................................................................. 106

Ridley v. Union Bank N.A. (S.D. Cal.) ...................... 110

TFT-LCD (Flat Panel) Antitrust Litigation, In re(N.D. Cal.) ......................................................... 111

TFT-LCD (Flat Panel) Antitrust Litigation, In re(N.D. Cal.) ......................................................... 108

TFT-LCD (Flat Panel) Antitrust Litigation, In re(N.D. Cal.) ......................................................... 109

U.S. v. Jones (U.S.) ................................................ 95

U.S. v. Nusbaum (M.D. Fla.) .................................. 106

U.S. v. Perez (S.D. Fla.) ......................................... 107

Webb v. Convergent Outsourcing, Inc. (D. Kan.) ....... 105

94 (Vol. 102, No. 2533)

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NewsPrivacy

GPS Tracking without WarrantWill Offend Fourth Amendment

T he location information gathered by global posi-tioning system devices falls within the protectionof the Fourth Amendment, according to a unani-

mous decision by the U.S. Supreme Court (U.S. v.Jones, U.S., No. 10-1259, 1/23/12).

However, the Court splits 5-4 over exactly how far totake the warrant requirement in this case. All nine jus-tices reject the Solicitor General’s argument that loca-tion information is not private for Fourth Amendmentpurposes.

Justice Antonin Scalia, writing for the Court, limitsthe holding in the case to the situation in which policesurreptitiously install a GPS device before monitoringit.

Justice Sonia M. Sotomayor adds a concurring opin-ion that reveals a majority of justices on the court wouldhold that the warrant requirement applies to any long-term GPS surveillance in other situations, too, such astracking individuals through their smartphones.

At oral argument, the Solicitor General contendedthat, even if GPS surveillance can amount to a search, itis a ‘‘reasonable’’ search so long as police have reason-able suspicion to believe wrongdoing is afoot.

Although the Jones Court speaks in terms of applyingthe ‘‘reasonableness’’ requirement to GPS surveillance,rather than applying the warrant requirement, no ex-pert interviewed by Bloomberg BNA expressed a beliefthat the Court is contemplating approving a GPS searchin the absence of a warrant or a traditional warrant ex-ception.

Challenged Search. The issue came up after narcoticsinvestigators obtained a search warrant in the Districtof Columbia to attach a GPS tracking device to a drugsuspect’s car.

The warrant later expired, but the investigators wentahead and attached the magnetic device to the under-carriage of the suspect’s Jeep as it was parked in a pub-lic place in Maryland.

The device collected data about the Jeep’s travelsover the next month. Investigators used GPS data tolink the suspect to a cocaine stash house, and this evi-dence was admitted in court to convict him of federaldrug offenses.

The circuits were divided over whether GPS surveil-lance of vehicles constitutes a ‘‘search.’’ Most of thosethat had addressed the issue had held that it is not asearch because an individual’s expectation of privacy ininformation concerning his or her movements in publicis not one that society would recognize as ‘‘reasonable’’for Fourth Amendment purposes. See, e.g., U.S. v. Gar-cia, 474 F.3d 994 (7th Cir. 2007).

Coverage. The Supreme Court, however, affirms a de-cision by the District of Columbia Circuit that had re-quired a warrant for GPS surveillance. U.S. v. Maynard,615 F.3d 544 (D.C. Cir. 2010).

Justice Scalia makes clear that the modern,expectation-of-privacy test that the lower courts appliedsupplements, rather than displaces, early jurisprudencethat had focused on property rights.

‘‘The Government physically occupied private prop-erty for the purpose of obtaining information. We haveno doubt that such a physical intrusion would havebeen considered a ‘search’ within the meaning of theFourth Amendment when it was adopted.’’

Nature of Information. The District of Columbia Cir-cuit and privacy advocates had distinguished the natureof GPS surveillance from the beeper-tracking cases inwhich the Supreme Court had applied the principle thatobservations of the location of a vehicle on the publicroads is not private.

The Maynard court stated: ‘‘Unlike one’s movementsduring a single journey, the whole of one’s movementsover the course of a month is not actually exposed tothe public because the likelihood anyone will observeall those movements is effectively nil. . . . The whole ofone’s movements is not exposed constructively eventhough each individual movement is exposed, becausethat whole reveals more—sometimes a great dealmore—than does the sum of its parts.’’

The Court resolves the case on a much narrowerground. The distinguishing feature of this case, theCourt decides, was the officers’ trespass on the Jeep.‘‘Whatever new methods of investigation may be de-vised, our task, at a minimum, is to decide whether theaction in question would have constituted a ‘search’within the original meaning of the Fourth Amend-ment.’’

The Court holds: ‘‘Where, as here, the Governmentobtains information by physically intruding on a consti-tutionally protected area, such a search has undoubt-edly occurred.’’ The court adds that, even assuming thatthe Maynard court and the concurring justices are cor-rect about the nature of long-term GPS observations, itscases ‘‘suggest that . . . visual observation is constitu-tionally permissible.’’

‘‘It may be that achieving the same result throughelectronic means, without an accompanying trespass, isan unconstitutional invasion of privacy, but the presentcase does not require us to answer that question. Andanswering it affirmatively leads us needlessly into addi-tional thorny problems,’’ the court said.

Expectation of Privacy. Justice Samuel A. Alito Jr.,joined by Justices Ruth Bader Ginsburg, Stephen G.Breyer, and Elena Kagan, would require the Court toanalyze the case by determining whether GPS monitor-ing intrudes on an expectation of privacy that societywould recognize as reasonable.

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‘‘Under this approach, relatively short-term monitor-ing of a person’s movements on public streets accordswith expectations of privacy that our society has recog-nized as reasonable. . . . But the use of longer term GPSmonitoring in investigations of most offenses impingeson expectations of privacy,’’ Justice Alito maintains.‘‘For such offenses, society’s expectation has been thatlaw enforcement agents and others would not—and in-deed, in the main, simply could not—secretly monitorand catalogue every single movement of an individual’scar for a very long period.’’

Justice Alito suggests: ‘‘In circumstances involvingdramatic technological change, the best solution to pri-vacy concerns may be legislative. . . . A legislative bodyis well situated to gauge changing public attitudes, todraw detailed lines, and to balance privacy and publicsafety in a comprehensive way.’’

Justice Sotomayor’s concurrence likewise points outthat there will be cases in which the government is ableto conduct surveillance without trespassing on sus-pects’ effects and that, in these cases, even short-termGPS surveillance would intrude on a reasonable expec-tation of privacy.

Like the Maynard court, Justice Sotomayor stressesthe capacity of GPS surveillance to reveal details aboutpeople’s lives concerning their politics, sexuality, religi-osity, and other private information. She emphasizesthat participating in our modern digital society requiresdisclosure of all sorts of information to third parties,such as Internet service providers and cell phone ser-vice providers.

Justice Sotomayor suggests that it is time to re-examine the principle that information one reveals tothird parties is not protected by the Fourth Amendment.‘‘This approach is ill suited to the digital age, in whichpeople reveal a great deal of information about them-selves to third parties in the course of carrying out mun-dane tasks,’’ she observes.

Reactions. Susan Walsh, of the New York City officeof Vladeck, Waldman, Elias & Engelhard PC, authoredan amicus curiae brief on behalf of the National Asso-ciation of Criminal Defense Lawyers.

She told Bloomberg BNA that Justice Sotomayor’sconcurrence ‘‘foreshadows’’ the next big digital privacyissue facing the courts: ‘‘whether someone taking partin a digitally advanced society, who has to surrenderprivate information for some limited purpose . . . likeshopping or researching on-line, thereby surrenders theprivacy in that information for all purposes.’’

At oral argument, the government maintained thatGPS is particularly useful early in investigations, beforelaw enforcement officers have developed probablecause.

Douglas H. Hallward-Driemeier, of the Washington,D.C., office of Ropes & Gray LLP, told Bloomberg BNAthat he does not believe that the warrant requirementcontemplated by the justices would ‘‘create a big prob-lem for law enforcement.’’

Hallward-Driemeier is a co-author of The Constitu-tion Project’s amicus brief in Jones. Any uncertaintyabout how long GPS monitoring may go on before ittriggers the warrant requirement is not likely to causeproblems for law enforcement, he predicted.

He pointed out that The Constitution Project’s Com-mittee on Liberty and Security issued a report on loca-tion tracking and the Fourth Amendment in September

2011. The members of the committee included formerprosecutors, legislators, intelligence officials, privacyadvocates, and others. Like the concurring justices inJones, they concluded that GPS tracking intrudes on areasonable expectation of privacy, and they advocatedadoption of a bright-line test that would require law en-forcement to obtain a warrant authorizing any GPS sur-veillance that lasts 24 hours. The report is available onThe Constitution Project’s website at http://www.constitutionproject.org/pdf/locationtrackingreport.pdf.

Hallward-Driemeier insisted that the proposed 24-hour rule is consistent with the distinction between‘‘monitoring a day in the life of someone, and monitor-ing someone’s way of life.’’

Senate Judiciary Committee Chairman Patrick Leahy(D-Vt.) stated that the unanimous decision represents avictory for privacy rights in the digital age.

‘‘The Court’s determination that the governmentmust obtain a search warrant before attaching a GPSdevice to a suspect’s car to monitor that suspect’s loca-tion highlights the many new privacy threats posed bynew technologies and the pressing need to update ourfederal privacy laws,’’ Leahy declared.

The senator noted that he has introduced a bill (S.1011) that would amend the Electronic Communica-tions Privacy Act to establish new protections for geolo-cation data.

‘‘Congress must now do its part to enact this legisla-tion, so that our federal privacy laws keep pace withtechnology and protect the interests of our nation’s citi-zens, law enforcement community, and thriving tech-nology sector,’’ Leahy noted.

Charles H. Kennedy, of the Washington, D.C., officeof Wilkinson Barker Knauer LLP, told Bloomberg BNAthat the Court failed to address broader geolocation pri-vacy concerns that have been raised by proponents ofECPA reform, such as the tracking of individuals usingtheir cell phones.

‘‘The legislative efforts are just as relevant today asthey were yesterday, before this decision, because ofthe very narrow basis for the outcome here,’’ Kennedysaid. ‘‘The Court didn’t address the larger question ofwhat do you do about electronic tracking that doesn’tinvolve any physical trespass. The other thing theydidn’t address at all is what do you do about storedcommunications, which is an emphasis of the Leahybill.’’

Still, even if legal questions remain, any time the Su-preme Court rules unanimously on the side of protect-ing Americans’ privacy rights, that carries significant‘‘moral weight,’’ he asserted.

Gregory Nojeim, a senior counsel at the Center forDemocracy and Technology, a Washington-based tech-nology policy group, told Bloomberg BNA that the caseshould invite legislative action.

He noted that five justices did not think that a physi-cal trespass was essential to the decision about whethera warrant should be required, which has implicationsfor real-time cell phone tracking.

‘‘This should give Congress an impetus to take on theissue,’’ Nojeim said.

American Civil Liberties Union Legal Director StevenR. Shapiro agreed that, while the case turned on the factthat the government physically placed a GPS device onthe defendant’s car, the implications are much broader.

96 (Vol. 102, No. 2533) NEWS

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‘‘A majority of the Court acknowledged that advanc-ing technology, like cell phone tracking, gives the gov-ernment unprecedented ability to collect, store and ana-lyze an enormous amount of information about our pri-vate lives,’’ Shapiro said in a statement. ‘‘Today’sdecision suggests that the Court is prepared to addressthat problem. Congress needs to address the problemas well.’’

Counsel for petitioner: Deputy Solicitor General Michael R.Dreeben, DOJ, Washington, D.C.; counsel for respondent:Stephen C. Leckar, Shainis & Peltzman Chartered, Wash-ington, D.C.

BY HUGH B. KAPLAN

OF CRIMINAL LAW REPORTER

Text of the Supreme Court’s opinions is at http://pub.bna.com/lw/101259.pdf — at BNA’s website.

Personnel

Pozen Resigns as Acting Chief,Will Leave DOJ at End of April

A cting Assistant Attorney General Sharis A. Pozen,who directs the Justice Department’s Antitrust Di-vision, announced on Jan. 23 her departure, effec-

tive April 30, from the Obama Administration.Attorney General Eric Holder, in a prepared state-

ment, lauded her accomplishments during her tenure inthe division.

‘‘Sharis has helped revitalize the Antitrust Division,and I commend her dedication to protecting consumersfrom anticompetitive mergers, illegal price fixing car-tels, and other anticompetitive conduct.’’ He also ac-knowledged her ‘‘strong leadership and sound legaljudgment on some of the most significant competitionmatters before the Department of Justice.’’

Pozen responded that it has been ‘‘an honor andprivilege to serve in the Antitrust Division and in thisadministration for the past three years. I have the ut-most respect for the dedicated men and women of thedivision who devote themselves to protecting Americanconsumers from anticompetitive conduct. I want to ex-press my deep gratitude to Attorney General Holder forhis leadership and for giving me the opportunity to leadthe Antitrust Division.’’

Pozen’s Posts. Pozen began her career at DOJ in Feb-ruary 2009 as chief of staff and counsel to the divisionchief.

As a key deputy to Assistant Attorney General Chris-tine A. Varney, she was involved in number antitrustmatters involving the health care, technology, energy,and agriculture sectors.

Holder tapped Pozen to lead the division last Augustafter Varney left DOJ to enter private law practice. Inthis role, Pozen led DOJ’s attack on the proposed con-solidation of AT&T Inc. and T-Mobile USA Inc., whichallegedly would have reduced competition in mobilewireless telecommunications services. DOJ contendedthat the concentration would lead to higher prices,poorer quality services, fewer choices, and fewer inno-vative products for millions of American consumers.The parties abandoned the deal—a result perceived byDOJ as a victory for consumers.

During her tenure in directing the division, Pozen:

s filed the first antitrust charges in the automotiveparts industry resulting in Furukawa Electric Co. Ltd.agreeing to plead guilty and pay a $200 million fine forits role in a cartel;

s charged 19 individuals and 1 corporation in con-nection with real estate foreclosure auctions in north-ern and eastern California and in southern Alabama;and

s charged three individuals in connection with a taxlien auctions case in New Jersey.

Prior to joining the division, Pozen was a partner inprivate practice in Washington, D.C., for 14 years andworked for five years at the Federal Trade Commissionas an attorney advisor to two commissioners and as anassistant to the Director of the Bureau of Competition.

BY CECELIA M. ASSAM

Privacy

Printouts of Partial Expiration DatesViolate FACT Act, Third Circuit Holds

M erchants violate the Fair and Accurate CreditTransactions Act’s ban against printing paymentcard expiration dates even if they only print the

month but not the year when the card expires, accord-ing to a decision by the U.S. Court of Appeals for theThird Circuit (Long v. Tommy Hilfiger U.S.A. Inc., 3dCir., No. 11-1554, 1/24/12).

The Third Circuit decides that a Tommy HilfigerU.S.A. Inc., retail outlet violated the FACT Act in atransaction with the consumer, Randy Long, whopressed his claim in a class action.

However, the court concludes, the partial printoutwas not a ‘‘willful’’ violation of the FACT Act. Conse-quently, it sustains dismissal of the complaint, which al-leged a willful violation by the Tommy Hilfiger store.

Judge Maryanne Trump states that the Third Circuitbecomes the first appeals court to rule on those ques-tions.

No Exemption. Although she acknowledges that theFACT Act does not define ‘‘expiration date,’’ JudgeTrump notes that the most natural reading is that noportion of an expiration date can be printed.

‘‘Congress demonstrated that it knew how to use lan-guage allowing for the partial disclosure of information,but elected not to include any such language in the con-text of expiration dates. Therefore, we cannot concludethat FACTA provides an exception for merchants whoredact part of the expiration date information on the re-ceipt,’’ the court determines.

The retailer violated the statute, but not in a mannerthat amounted to a willful violation, according to JudgeTrump, who insists that there was at least some reasonto believe that printing partial dates might be allowed.Even the district court agreed with the retailer on thatpoint, she points out.

‘‘In sum, we conclude that Hilfiger’s interpretation of§ 1681c(g)(1), although erroneous, was at least objec-tively reasonable,’’ according to Judge Trump, who re-

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fers to the statutory provision that bans printouts of ex-piration dates.

BY CHRIS BRUCE

OF BANKING REPORT

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=srin-8qtttr — at BNA’s website.

Mergers and Acquisitions

FTC Releases 2012 RevisionsTo § 7A Jurisdictional Thresholds

T he jurisdictional thresholds of Clayton Act § 7A,governing requirements for alerting federal anti-trust authorities about a notifiable merger, in-

creased from $66 million to $68.2 million, according toa Jan. 24 announcement by the Federal Trade Commis-sion.

The FTC unveiled the amendments as part of its re-quirement to adjust these filing thresholds annually tokeep pace with inflation, based on the change in theGross Domestic Product. The § 7A jurisdictional thresh-olds differ from the premerger filing fees, which havenot changed in over a decade.

Under § 7A and the regulations adopted thereunderby the FTC and DOJ, companies must notify authoritiesif the value of a transaction exceeds the filing thresh-olds.

The commission vote was 4-0 to authorize publica-tion of the text of the Federal Register notice announc-ing the revised jurisdictional thresholds.

BY CECELIA M. ASSAM

Text of the Federal Register notice is available athttp://www.ftc.gov/os/2012/01/120124claytonact7a.pdf— the FTC’s website.

Debt Collection

FDCPA Plaintiff Is Entitled to PartialDefault Judgment Against Debt Collector

A review of a debtor’s allegations to ‘‘determinewhether plaintiff has alleged legitimate causes ofaction’’ leads to default judgment on Fair Debt

Collection Practices Act claims against a debt collectinglaw office that never responded to the plaintiff’s law-suit, a magistrate judge in the U.S. District Court for theDistrict of Maryland recommends (Glen v. Law Officeof W. C. French, D. Md., No. 1:11-cv-927-ELH, 1/19/12).

Challenged Conduct. James Glen sued the Law Officeof W.C. French for violating the Fair Debt CollectionPractices Act, 15 U.S.C. § 1692 et seq. He also con-tended that the defendant violated the Maryland Collec-tion Agency Licensing Act (MCALA), Md. Code Ann.Bus. Reg. § 7-101 et seq., by engaging in collectionswithout a license and the Maryland Consumer Protec-tion Act, Md. Code Ann., Com. Law § 13-301 et seq., andthe Maryland Consumer Debt Collection Act, Md. CodeAnn., Com. Law § 14-201 to § 14-204.

Glen alleged that the initial collection letter sent byFrench violated the FDCPA in several ways and violated

Maryland’s debt collection law. Glen had contactedFrench’s office and allegedly was told by a ‘‘collectionagent’’ that French is an elderly attorney who no longercame into the office. The collection agent allegedly saidthat ‘‘we run the operation of this office.’’ On that basis,Glen contended that French’s office should have had alicense to engage in debt collections because lawyerswere not doing the collection.

After the defendant failed to appear, answer, or oth-erwise defend the complaint, Glen sought default judg-ment, entry of statutory damages, counsel fees, andcosts.

Report and Recommendation. Magistrate Judge SusanK. Gauvey recommends that Glen win default judgmenton his FDCPA claim, but she denies default judgmenton Glen’s state law claims.

Magistrate Judge Gauvey concludes that Glen has al-leged only one FDCPA violation but that ‘‘that is suffi-cient to establish a cause of action under the FDCPA.’’Glen’s allegation that French’s initial collection letterthreatening to sue within 7 days ‘‘notwithstanding the30 days to notify us you dispute the debt’’ overshad-owed the statutory warnings and violated the FDCPA.Furthermore, she notes that French’s letter never men-tioned Glen’s right to verification of his debt at all in theletter but concludes that only the threat to sue within 7days constituted an FDCPA violation.

Magistrate Judge Gauvey also decides that Glen hasnot proven a ‘‘clear violation’’ of § 1692(g)(a)(3) be-cause the collection letter’s statement that Glen had tocontest the debt ‘‘within 30 days of this notice’’ was am-biguous and could have meant either the date on the no-tice or the date it was received. She explains that suchan ‘‘insignificant variation from the statutory languagedoes not constitute an abusive debt collection practice.’’

Magistrate Judge Gauvey refuses to accept Glen’s al-legations as true that French violated the MCALA. TheMCALA does not require lawyers to be licensed in or-der to engage in debt collection, and Glen did not spe-cifically allege that the person he spoke to at French’slaw office was not a lawyer. Therefore, she concludes,‘‘it is not clear whether defendant violated FDCPA byviolating MCALA.’’ She also declines to credit Glen’s al-legations that French violated the Maryland ConsumerDebt Collection Practices Act because, while it may bethat French had no right to attempt collection without aproper license, ‘‘plaintiff failed to allege that defendantdid so with the requisite knowledge.’’

Magistrate Judge Gauvey also decides Glen has failedto state a cause of action under the Maryland ConsumerProtection Act. ‘‘[P]laintiff may believe that by violatingthe MCDCA, defendant violated the MCPA as well,’’ shenotes, ‘‘[b]ut plaintiff failed to say so.’’

Having found that French’s violations of the FDCPAarise out of ‘‘only one incident, the January 12, 2010 let-ter,’’ the magistrate judge considers $1,000 statutorydamages to be excessive. ‘‘Instead, defendant should beordered to pay plaintiff $400 in statutory damages,’’ sheholds.

Having found a violation of the FDCPA, Judge Gau-vey awards $2,530 of the $3,680 in counsel fees re-quested, both cutting $125 off the per hour rate re-quested and cutting the hours requested for this ‘‘verysimple’’ case. Because plaintiff ‘‘provided no proof of asto the $75 cost,’’ she recommends no award of costs.

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Counsel for plaintiff: Bernard Thomas Kennedy, TheKennedy Law Firm, Edgewater, Md.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qslmy — at BNA’s website.

Enforcement

FTC and CFPB Sign MOU to PledgeCoordination for Protection of Consumers

T he newly minted Consumer Financial ProtectionBureau and the Federal Trade Commission on Jan.20 signed a memorandum of understanding to pro-

mote effective cooperation in their dual roles of protect-ing consumers, the FTC announced in a Jan. 23 state-ment.

Under the Dodd-Frank Wall Street Reform and Con-sumer Protection Act, which created the Consumer Fi-nancial Protection Bureau (CFPB), the two agencies areobligated to ‘‘prevent duplication of efforts, provideconsistency, and ensure a vibrant marketplace for Con-sumer Financial Products or Services,’’ according to thememorandum of understanding (MOU).

FTC Chairman Jon Leibowitz remarked that the com-mission ‘‘has always been committed to protecting con-sumers and legitimate companies from bad actors in thefinancial marketplace.’’ He quipped: ‘‘Now, we have an-other cop on the beat, and this agreement ensures thatbusinesses will not be double-teamed by the two agen-cies.’’

Richard Cordray, Director of the CFPB, noted thatentering into the MOU with the FTC ‘‘is important tomaking sure markets for consumer financial productsare getting efficient and effective federal governmentoversight.’’ Furthermore, both agencies are ‘‘motivatedby the same thing: to do right by consumers. We lookforward to this partnership.’’

MOU. The MOU describes the CFPB as:

an independent agency with the authority to implement andenforce Federal consumer financial law for the purpose ofensuring that all consumers have access to markets for con-sumer financial products and services and that the marketsfor consumer financial products and services are fair, trans-parent, and competitive.

The provisions of the MOU require the FTC andCFPB to coordinate law enforcement activities, poten-tial court actions, and administrative proceedings—thereby minimizing duplication, maximizing efficien-cies and resources, and eliminating redundancies.

Prior to commencing an investigation where bothagencies would have jurisdiction, the MOU requireseach agency to determine whether the other agencyhas:

s investigated or is investigating the target of the in-vestigation, also referred to as an MOU Covered Per-son, for violations in connection with offering or provid-ing Consumer Financial Products or Services;

s filed a court action or administrative proceedingagainst that MOU Covered Person alleging violations ofan MOU Consumer Financial Law in connection with

offering or providing Consumer Financial Products orServices; or

s obtained an order or judgment against that MOUCovered Person in a court action or administrative pro-ceeding based on violations or alleged violations of anMOU Consumer Financial Law in connection with of-fering or providing Consumer Financial Products orServices.

The MOU also includes provisions regarding consul-tation on rulemakings and guidelines concerning theprohibition on unfair, deceptive, and abusive acts orpractices as well as cooperation on consumer educationefforts to promote consistency of messages and maxi-mum use of resources. The MOU is designed ‘‘to createa strong and comprehensive framework’’ to achievetheir newly shared goals.

The agencies indicated that they look forward to re-ceiving feedback on the agreement from consumers, in-dustry, and other members of the public and are com-mitted to finding ways to further strengthen their coor-dination efforts.

The commission’s vote approving the MOU with theCFPB was 4-0.

Reactions. Robert M. Langer, of the Hartford, Conn.,office of Wiggin & Dana LLP, told Bloomberg BNA thatboth agencies should be commended for producing theMOU.

Langer, who formerly directed consumer protectionand antitrust enforcement for the Connecticut attorneygeneral’s office, explained that the FTC/CFPB MOU sat-isfies the statutory directive for them ‘‘to coordinatetheir activities to avoid duplication of effort . . . .’’

The MOU, he asserted, ‘‘is an important document inthat it signals to the business community and the publicat large that the agencies have begun to carry out themandate of Dodd-Frank.’’

Barry J. Cutler, of the Washington, D.C., office ofBaker & Hostetler LLP, observed that the terms of theMOU ‘‘are not as important as how it will work out inactual practice.’’

Cutler, who served as Director of the FTC’s Bureau ofConsumer Protection from 1990 to 1993, pointed outthat it’s hard to predict the likelihood of success withthis MOU because of several key differences from otherlongstanding agreements.

The MOU between the FTC and Food and Drug Ad-ministration, he added, divides ‘‘administrative conve-nience responsibilities for which both agencies havestatutory jurisdiction—for example, ads and labels forOTC drugs versus prescription drugs. Although he ac-knowledged that the FTC and the CFPB enjoy no suchdivision in the new MOU, Cutler cited ‘‘a remarkablesharing of information about studies, rules, and lawenforcement—in many cases, before they become pub-lic.’’

Cutler cautioned that, in Washington, D.C., a city leg-endary for ‘‘leaks’’ of government documents, there willbe a lot of ‘‘sensitive financial and law enforcement in-formation shared between both agencies, neither ofwhich will likely be able to withhold it from Congress.’’In light of agency oversight conducted by differentstanding committees, the agencies may experience tag-team efforts by congressional staffs to achieve ‘‘back-door access’’ to the FTC’s work on CFPB projects or theCFPB’s work on FTC projects, he warned.

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The informal relationships developed betweenagency staffers and legislators is another complicatingfactor, Cutler posited. In contrast to hostile relations be-tween Capitol Hill and the FTC in the 1970s, the FTC formore than two decades has experienced ‘‘seamlesstransitions’’ and enjoyed ‘‘good relations with the Hill.’’By comparison, he pointed out, the FCPB has been op-erating under a ‘‘standing 8-count’’ from the Congresssince before an agency head could even be appointed.

Finally, Cutler cited the migration of ‘‘many very tal-ented FTC staffers . . . to the FCPB in the last year orso.’’ He predicted that the influx of veteran FTC staffers‘‘should ensure good relations as well as a close-upview of how a mature agency like the FTC handles allaspects of its work—political, administrative, enforce-ment.’’

BY CECELIA M. ASSAM

The memorandum of understanding between the FTCand the CFPB is available at http://www.ftc.gov/os/2012/01/120123ftc-cfpb-mou.pdf — on the FTC’s web-site.

Administrative Procedure

FTC Solicits Public CommentsOn Wool Products Labeling Rules

I n an effort to ensure that manufacturers are not pull-ing the wool over the eyes of consumers, the FederalTrade Commission on Jan. 25 announced that it will

review the Wool Products Labeling Rules and is seekingcomments from the public.

The Wool Products Labeling Act of 1939, known asthe Wool Act, yielded the Wool Products LabelingRules. These rules require wool product labels to con-tain specific information—including the manufacturer’sor marketer’s name, the country where the product wasprocessed or manufactured, and information about thefiber content.

The rules were reviewed in 1998 and modified in1998 and 2000. The Wool Act was amended in 2006 bythe Wool Suit Fabric Labeling Fairness and Interna-tional Standards Conforming Act, which sets the maxi-mum average fiber diameter for certain wool products.

The commission asks for public input on:

s the continuing need for the rules, as well as thebenefits, costs, and impact of them;

s how it should modify the Wool Rules to implementthe Conforming Act; and

s whether it should clarify or modify certain ruleprovisions and/or its business and consumer educationmaterials.

The commission vote approving the Advance Noticeof Proposed Rulemaking was 4-0.

BY CECELIA M. ASSAM

Text of the Federal Register Notice is available athttp://www.ftc.gov/os/2012/01/120125woolproductsfrn.pdf — on the FTC’s website.

Credit Repair

Baby FTC Act, CROA Claims Are SentTo Arbitration with Partially Decertified Class

D ebt reduction services companies sued under theCredit Repair Organization Act and California un-fair practices and consumer protection law can

enforce class action waiver and arbitration clausessigned by the plaintiffs, according to a decision by theU.S. District Court for the Northern District of Califor-nia, which orders arbitration and decertifies the class asto these defendants (Estrella v. Freedom Financial Net-work, LCC, N.D. Cal., No. 3:09-cv-3156-SI, 1/24/12).

Judge Susan Illston agrees that the Supreme Court’sdecisions in AT&T Mobility v. Concepcion, 131 S.Ct.1740 (2011), and CompuCredit Corp. v. Greenwood,102 ATRR 7 (U.S. 2012), permit the defendants to en-force class action waivers and arbitration clauses intheir contracts against all the plaintiffs’ claims. Al-though two named plaintiffs did not sign contracts con-taining the class action waivers, Judge Illston concludesthat class treatment is improper because all namedplaintiffs are forced to arbitrate all their claims.

Judge Illston preliminarily approves the amount of aclass settlement as to two other defendants, Global Cli-ent Solutions, LLC and Rocky Mountain Bank andTrust, but she requires more information about usage ofthe settlement funds before fully approving the terms ofthe settlement.

Challenged Conduct. The plaintiffs sued on behalf of aputative class of people who paid for debt reduction ser-vices between 2005 through 2009.

The plaintiffs alleged that Freedom Financial Net-work, LLC, Freedom Debt Relief, Inc., and FreedomDebt Relief, LLC (the ‘‘Freedom defendants’’), and oth-ers violated the Credit Repair Organizations Act(CROA), 15 U.S.C. § 1679b, California’s unfair competi-tion law, Cal. Bus. & Prof. Code § 17200, California’sConsumer Legal Remedies Act, Cal. Civ. Code § 1750 etseq., and California’s ‘‘prorater’’ statute, Cal. Fin. Code§ 12315.1.

The Freedom defendants, citing contracts the namedplaintiffs signed when they bought services, moved tocompel arbitration following the Supreme Court’s Con-cepcion decision. The court granted arbitration as totwo named plaintiffs by an earlier order, keeping theplaintiffs’ CROA claims stayed in federal court. Follow-ing the Supreme Court’s decision in CompuCredit, andafter additional named plaintiffs joined the litigation inthe third amended complaint, the Freedom defendantsalso moved to compel arbitration of the new plaintiffs’claims and all CROA claims.

Arbitration Act Applies. In light of Concepcion andCompuCredit, Judge Illston grants Freedom’s motion tocompel and grants decertification of the class againstthe Freedom defendants.

The new plaintiffs signed contracts containing thesame arbitration clause that the court had already en-forced against named plaintiffs Estrella and Arita, thecourt observes. The court agrees that the contracts aresubject to arbitration.

The court rejects the plaintiffs’ argument that theFreedom defendants have waived their right to compelarbitration by litigating for years before moving to com-

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pel arbitration. The plaintiffs subject to Freedom’s cur-rent motion were added to the litigation in the most re-cent pleading, the court notes; thus, Freedom’s motionto compel arbitration as to those plaintiffs the day afterthey joined the lawsuit was sufficient to preserve Free-dom defendants’ contractual rights.

In its prior order compelling arbitration of the namedplaintiffs’ California law claims, the court had stayedthe CROA claims. In light of the decision in Compu-Credit, Judge Illston also sends all of the plaintiffs’CROA claims to arbitration.

Because the plaintiffs are compelled to arbitrate theirclaims against the Freedom defendants, the court alsoconcludes that any class should be decertified as to theFreedom defendants. The court, noting that the weightof authority holds that decertification is appropriate inlight of changes in the law, holds that a class is nolonger proper in this action in light of Concepcion andCompuCredit. ‘‘Here, the class is bereft of representa-tives, and therefore can no longer meet the require-ments of Rule 23,’’ the court says.

Partial Settlement. Before the court’s arbitration or-der, plaintiffs had reached a class settlement with twoother defendants, Global Client Solutions, LLC andRocky Mountain Bank and Trust. The Freedom defen-dants objected to the creation of a settlement fund thatcould be used to litigate against them.

Under the terms of the settlement, Global and RockyMountain will pay $500,000 into a settlement fund ‘‘forall claims, costs, expenses, and attorneys’ fees.’’

The court, noting its obligation to conduct a fairnesshearing to evaluate the settlement, finds that $500,000is a fair, reasonable, and adequate amount. However,the court ‘‘has concerns with the proposed distributionof the funds.’’

‘‘As currently structured in the Settlement Agree-ment,’’ Judge Illston says, ‘‘the funds are poised to ben-efit largely (if not entirely) class counsel, not the class.’’

Because the architecture of the agreement rests fu-ture benefit to the class on victory or settlement vis a visthe Freedom defendants, the court reasons, counsel willpetition for reimbursement of expenses up to the wholeamount of the fund until that ‘‘uncertain outcome’’ oc-curs. As an interim measure, the court agrees to pre-liminarily approve the $500,000 payment into a settle-ment fund and orders the plaintiffs to propose a use forthe fund that ‘‘mitigates the Court’s concerns.’’

Counsel for plaintiff: Barron Edward Ramos, Hess-Verdon& Associate, Newport Beach, Cal.; David R Markham,James Michael Treglio, and R. Craig Clark, Clark andMarkham, San Diego, Cal.; Stuart C. Talley, Kershaw Cut-ter & Ratinoff LLP, Sacramento, Cal.; Mark John Tamblyn,Wexler Wallace LLP, Sacramento, Cal.; Richard Wayne Ep-stein, Greenspoon Marder PA, Fort Lauderdale, Fla.;Charles E. Ames, Charles E. Ames, P.C., Carrollton, Tex.;Thomas Andrew Crosley, The Crosley Law Firm, P.C., SanAntonio, Tex.; counsel for defendant: Christopher JamesSteskal, Jennifer Corinne Bretan, Kevin Peter Muck, andMarie Caroline Bafus, Fenwick & West, San Francisco,Cal.; Haas A Hatic and Rebecca F Bratter, GreenspoonMarder PA, Fort Lauderdale, Fla., Peter C Lagarias andRobert S. Boulter, Lagarias and Boulter, San Rafael, Cal.,Allen Ruby, Skadden Arps Slate Meagher & Flom, LLP,Palo Alto, Cal.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qur8s — at BNA’s website.

Mergers and Acquisitions

FTC Won’t Seek Supreme Court Review ofAttack on ‘Monopoly’ in Heart Drug Market

T he Federal Trade Commission on Jan. 20 decidednot to seek Supreme Court review of an Eighth Cir-cuit case rejecting the agency’s challenge to al-

leged monopolization of the market for patent ductusarteriosus drugs by Lundbeck Inc.

FTC Chairman Jon Leibowitz and CommissionersEdith Ramirez and Julie Brill stated the agency’s inten-tion not to file a petition for a writ of certiorari in theLundbeck case.

The three commissioners insisted that ‘‘the result inthis case was profoundly wrong,’’ but they decided to‘‘forgo further review in this case’’ and proceed with‘‘other enforcement priorities.’’

The case in question began in 2008 when the FTCand the Minnesota attorney general attacked Lund-beck’s acquisition of the patent ductus arteriosus (PDA)drug NeoProfen, after it already had acquired the PDAdrug Indocin (injectable indomethacin). Both enforcerscontended that the acquisition offends federal antitrustlaw by willfully maintaining monopoly power in themarket for the sale of drugs to treat PDA in the UnitedStates.

The district court, in a 2010 bench trial, ruled that themonopolization claims brought by FTC and Minnesotawere not actionable because the two medications at is-sue in the case were not in the same product market.

On appeal to the Eighth Circuit, the court in August2011 upheld the district court’s decision. See 101 ATRR261. Three months later, the Eighth Circuit declined arequest to rehear the case.

PDA, which primarily affects premature infants, oc-curs when a duct between heart chambers fails to closesoon after birth. If PDA fails to resolve on its own, treat-ment options consist of either drugs or surgery, withdrugs being the favored option.

‘Serious Misunderstanding.’ The three commissionerscontended that the district court’s decision in the Lund-beck case reflects ‘‘a serious misunderstanding . . . ofthe dynamics of this market and of the competitive con-sequences of an acquisition that allowed one companyto control the only two pharmaceutical treatments for alife-threatening medical condition and raise prices bynearly 1300 percent.’’

However, the three commissioners explained, theEighth Circuit upheld the result ‘‘on narrow grounds,emphasizing the narrow standard of review that it ap-plies to issues it views as factual in nature.’’

In a separate statement, Commissioner J. ThomasRosch insisted that the FTC should pursue SupremeCourt review, especially in light of the fact that theCourt has not reviewed a merger decision since themid-1970s. The decisions in the Lundbeck case, he as-serted, ‘‘are about as erroneous as any merger decisionscan get.’’

Rosch identified several legal errors in the Lundbeckdecisions, including the failure to ‘‘consider a hypo-thetical market, i.e., what the cross-elasticity of demandwould have been had Lundbeck not controlled themanufacture, marketing, and sale of both products.’’

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The FTC, he declared, ‘‘should not be afraid of los-ing.’’ Rosch asserted: ‘‘Whatever the result ultimatelyturns out to be in Lundbeck, we would not jeopardizereview of our pending, non-merger decisions, and wewould clarify merger law through Supreme Court re-view instead of just through the Horizontal MergerGuidelines, which, as courts have observed, do not havethe force of law.’’

Reactions. J. Mark Gidley, of the Washington, D.C.,office of White & Case, told Bloomberg BNA on Jan. 25that the FTC’s ‘‘failure to pursue Supreme Court reviewis simply a recognition that the likely results do not jus-tify the agency’s resources.’’

James M. Burns, of the Washington, D.C., office ofWilliams Mullen, told Bloomberg BNA on Jan. 25 thatthe FTC’s decision not to seek review ‘‘is a pragmaticone, as the fundamental ‘rightness’ or ‘wrongness’ ofthe underlying decision is rarely, if ever, sufficient toensure Supreme Court review.’’

Furthermore, he observed, the FTC’s decision not toappeal ‘‘may also reflect, at least in part, a recognitionthat the Supreme Court’s appetite for antitrust cases isnot great and that it would be wiser to await the nextruling by a circuit court in a ‘pay for delay’ patent settle-ment case, which presents a more substantial and farreaching issue of interest to the FTC.’’

BY DANA A. ELFIN

OF HEALTH CARE POLICY REPORT

The agency’s majority statement by CommissionersLeibowitz, Ramirez, and Brill is available at http://op.bna.com/hl.nsf/r?Open=deln-8quldb — on the FTC’swebsite.The dissenting statement by Commissioner Rosch isavailable at http://op.bna.com/hl.nsf/r?Open=deln-8qulbj — on the FTC’s website.

In BriefNCAA President Is Compelled to Deposition

The National Collegiate Athletics Association failedto demonstrate good cause for further delaying thedeposition of NCAA President Mark Emmert in an ac-tion brought by former college student athletes allegingviolations of Sherman Act § 1 and state ‘‘right of public-ity’’ laws, the U.S. District Court for the Northern Dis-trict of California concludes in compelling Emmert’sdeposition. Judge Nathanael M. Cousins points out thatthe plaintiffs noticed Emmert’s deposition in June. Con-sidering that almost all the named plaintiffs have beendeposed and substantial document discovery is com-pleted, the court concludes that Emmert’s deposition isnot premature. The court agrees instead with the plain-tiffs that Emmert’s deposition is permitted by the dis-covery rules and that NCAA has not shown good causefor postponing the deposition further. Moreover, thecourt explains, ‘‘in light of the fact that the NCAA re-cently was successful in stalling Plaintiffs’ efforts to ob-tain discovery from NCAA members, it seems unfair toallow the NCAA to also prevent Plaintiffs from discov-ering relevant information from the management levelof NCAA.’’ See (102 ATRR 70). ‘‘The NCAA cannot

have it both ways,’’ the court instructs. The court ordersEmmert be available for no more than three hours ofdeposition within the next 60 days (In re NCAAStudent-Athlete Name & Likeness Litigation, N.D. Cal.,No. 4:09-cv-1967-CW, 1/20/12).

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qsrkg — at BNA’s website.

Advertising

FTC Gets Entry of SettlementsWith Acai Berry Supplement Sellers

M arketers using phony news sites and making de-ceptive claims to sell health-related productswithout disclosing that their commercial mes-

sages are advertisements, rather than objective journal-ism, would be required to refrain from deception andmisleading statements, according to six consent judg-ments entered in four district courts (FTC v. Labra,N.D. Ill., No. 1:11-cv-02485, 1/11/12; FTC v. AmbervineMarketing LLC, N.D. Ill., No. 1:11-cv-02487, 1/10/12;FTC v. Vaughn, W.D. Wash., No. 2:11-cv-00630-RAJ,1/12/12; FTC v. Lee, N.D. Ill., No. 1:11-cv-02486, 1/11/12;FTC v. Dunlevy, N.D. Ga., No. 1:11-cv-01226-TWT,1/12/12; FTC v. DLXM LLC, E.D.N.Y., No. CV 11-1889,1/19/12).

The defendants were discovered during an investiga-tion, conducted last year, targeting marketers who al-legedly used fake news sites to promote weight-lossproducts. The Federal Trade Commission filed com-plaints in April 2011 challenging the business practicesof the following defendants:

s Ricardo Jose Labra;

s Zachary S. Graham, Ambervine Marketing, LLC,and Encastle, Inc.;

s Tanner Garrett Vaughn;

s Thou Lee;

s Charles Dunlevy; and

s DLXM, LLC and Michael Volozin.The respective courts issue permanent injunctions

against these defendants to prevent them from engag-ing in deceptive marketing of acai berry supplementsand other weight-loss products by using fake news web-sites.

Acai berry supplements are derived from acai palmtrees that are native to Central America and SouthAmerica and often are marketed to consumers forweight loss.

The courts impose a total of $4.597 million in mon-etary judgments. Based on the defendants financialstatements indicating that they are unable to pay thejudgments, the courts suspend the vast majority of thattotal. Thus, the defendants will end up paying about$524,500 plus the proceeds from the sales of two ve-hicles.

Challenged Conduct. The FTC alleged that the defen-dants’ business practices violated FTC Act § 5.

The complaints alleged that the defendants postedattention-grabbing ads on search engines and high vol-ume websites while marketing acai weight-loss prod-

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ucts. One ad declared: ‘‘Acai Berry EXPOSED—HealthReporter Discovers the Shocking Truth’’; it led consum-ers to the fake news sites and ultimately to the siteswhere merchants sell the products.

The FTC claimed that the defendants designed theirwebsites to appear ‘‘as if they were part of legitimatenews organizations, but were actually nothing morethan advertisements deceptively enticing consumers tobuy the featured acai berry weight-loss products fromonline merchants.’’

According to the FTC, the defendants used titles suchas: ‘‘News 6 News Alerts’’; ‘‘Health News HealthAlerts’’; or ‘‘Health 5 Beat Health News’’ to representfalsely that their reports ‘‘had been seen on major me-dia outlets such as ABC, Fox News, CBS, CNN, USA To-day, and Consumer Reports.’’ These investigative-sounding headlines offered stories that claimed ‘‘todocument a reporter’s first-hand experience with acaiberry supplements—typically claiming to have lost 25pounds in four weeks.’’

The agency received numerous complaints from con-sumers who paid between $70 and $100 for weight-lossproducts after having been deceived by fake news sites.

Settlements. Each settlement is entered in a districtcourt and addresses the challenged conduct alleged inthe corresponding complaint.

Generally, the courts require the defendants in thesix cases to make it clear to prospective consumers thattheir commercial messages are advertisements, insteadof objective journalism. The orders bar the defendantsfrom further deceptive claims about health-relatedproducts such as the acai berry weight-loss supple-ments and colon cleansers.

The defendants must disclose any material connec-tions with merchants and are barred from making de-ceptive claims about other products—such as the work-at-home schemes or penny auctions promoted by mostof them.

The settlements impose monetary judgments ofnearly $4.6 million—representing the full amount of thecommissions received by the defendants for deceptivemarketing through their fake news sites. However, dueto the defendants’ financial condition, the majority ofthe judgments in most cases will be suspended oncethey fulfill certain obligations.

Any defendant found to have misrepresented their fi-nancial condition will be responsible for the full amountof the judgment:

s Ricardo Jose Labra’s $2.5 million judgment will besuspended when he pays $280,000 and records a$39,500 lien on his home.

s Ambervine Marketing, LLC, Encastle, Inc., andZachary S. Graham’s $953,000 judgment will be sus-pended when he pays $110,000 plus most of the pro-ceeds from the sale of a truck.

s Tanner Garrett Vaughn’s $203,000 judgment willbe suspended when he pays close to $80,000 over athree-year period.

s Thou Lee’s $204,000 judgment will be suspendedwhen he pays $13,000 plus the proceeds from the saleof a BMW.

s Charles Dunlevy’s $143,000 judgment will be sus-pended when he pays an estimated $2,000 from frozenassets and the sale of a boat.

s DLXM, LLC and Michael Volozin’s $594,000 judg-ment will be suspended because of the defendants’ in-ability to pay.

The commission votes authorizing the staff to file theproposed settlement orders against Ricardo Labra andTanner Vaughn were 4-0. The votes authorizing thestaff to file the proposed settlement orders against Za-chary Graham, Ambervine Marketing, LLC and En-castle, Inc.; Thou Lee, DLXM, LLC and Michael Volo-zin; and Charles Dunlevy were 3-1, with CommissionerJ. Thomas Rosch voting no.

BY CECELIA M. ASSAM

The Labra complaint is available at http://www.ftc.gov/os/caselist/1123088/110419rjlcmp.pdf —on the FTC’s website.The consent judgment is available at http://www.ftc.gov/os/caselist/1123088/120125rjlstip.pdf — onthe FTC’s website.The Ambervine Marketing LLC complaint is availableat http://www.ftc.gov/os/caselist/1123090/110419amcmp.pdf — on the FTC’s website.The consent judgment is available at http://www.ftc.gov/os/caselist/1123090/120125ambervinestip.pdf — on the FTC’s website.The Vaughn complaint is available at http://www.ftc.gov/os/caselist/1123067/110419tgvcmp.pdf —on the FTC’s website.The consent judgment is available at http://www.ftc.gov/os/caselist/1123067/120125tgvstip.pdf —on the FTC’s website.The Lee complaint is available at http://www.ftc.gov/os/caselist/1123085/110419tlcmp.pdf — on the FTC’swebsite.The consent judgment is available at http://www.ftc.gov/os/caselist/1123085/120125tlstip.pdf — onthe FTC’s website.The Dunlevy complaint is available at http://www.ftc.gov/os/caselist/1123077/110419cdunlevycmp.pdf — on the FTC’s website.The proposed consent judgment is available at http://www.ftc.gov/os/caselist/1123077/120125dunlevystip.pdf— on the FTC’s website.The DLXM complaint is available at http://www.ftc.gov/os/caselist/1123061/110419dlxmcmpt.pdf— on the FTC’s website.The proposed consent judgment is available at http://www.ftc.gov/os/caselist/1123061/120125dlxmstip.pdf —on the FTC’s website.

Unfair Practices

Final TCPA Class Settlement Is Approved;Lienholder Takes Part of Plaintiff’s Share

A creditor seeking to enforce a judgment lien againstthe settling representative plaintiff in a TelephoneConsumer Protection Act class action has no

standing to object to the settlement but can be given acut of the representative’s incentive payment within thediscretion of the court, the U.S. District Court for theNorthern District of California holds (Grannan v. Alli-

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ant Law Group, P.C., N.D. Cal., 5:10-cv-2803-HRL,1/24/12).

Magistrate Judge Howard R. Lloyd approves the classaction settlement and enters a stipulated injunctionagainst the defendant sending automated collectionsphone calls to consumers’ cellular phones.

Challenged Conduct Patrick Grannan, representing aputative class, alleged that Alliant Law Group, P.C.made automated collection calls to consumers’ cellularphones without express consent in violation of theTCPA, 47 U.S.C. § 227 et seq.

Alliant agreed to settle for the $1 million limit of itsinsurance policy and agreed to a stipulated injunctionoutlining procedures to be followed in future to assurethat Alliant does not contact cell phone numbers withautomated messages. The settlement also included a$5,000 incentive payment to Grannan as representativeplaintiff.

The court preliminarily certified the settlement class,preliminarily approved the settlement, and held a finalfairness hearing. After the parties moved for final settle-ment approval, Cardservice International, a third-partylienholder against Grannon, purported to object to thesettlement. Cardservice reasoned that it had a moneyjudgment against Grannan for $6,808.34, and Cardser-vice objected that the incentive payment should go di-rectly to Cardservice to satisfy its lien instead of beingpaid to Grannan.

Analysis. Magistrate Judge Lloyd grants final ap-proval of the class settlement because he concludes thatFed.R.Civ.P. 23 is satisfied and that the proposed settle-ment is fair, reasonable, and adequate.

The court reviews Rule 23’s requirements for classcertification and concludes that the class can be finallycertified for settlement. In light of the fact that Alliant’sinsurance policy was the only source of funds to satisfythe TCPA’s $500 per violation statutory damages, thecourt considers a settlement for the full insurancepolicy amount, stipulating an equal payment to eachclass member regardless of the number of calls each re-ceived, to be adequate and fair. Based on the limitedfunds available, a payment of $300-$325 each to theover 1,986 opt-in class members is sufficient.

‘‘The offer before the court is the best offer the plain-tiffs will get,’’ the court declares. Magistrate JudgeLloyd also considers that six members of the classopted out and that no class member objected to thesettlement.

Lienholder Objections? Magistrate Judge Lloyd de-cides, in his discretion, to split the baby on Grannan’sincentive payment by giving $2,500 of it directly toCardservice.

Magistrate Judge Lloyd notes that Cardservice has nostanding to object to the settlement because Cardser-vice is not a class member. However, noting that he hasthe authority to enforce a judgment lien filed pursuantto Cal. Code Civ. Proc. § 708.410 governing execution infederal court, the court reviews whether Cardservicehas fulfilled the statutory requirements for enforcing itslien.

The court concludes that Cardservice has created avalid lien but that neither Cardservice nor Grannan hascomplied with the California statute’s provisions forseeking either satisfaction of or exemption from thatlien in this court. Therefore the court, acting under the

discretion afforded by the state statute, determines to‘‘decide this matter in a way that is reasonable to bothsides.’’

Cardservice has a valid lien, and Grannan has per-formed a public service in bringing this action, the courtreasons. Accordingly, the court concludes it is ‘‘bothfair and reasonable for Grannan to receive $2,500 of hisincentive payment, and for Cardservice to receive$2,500 of the incentive payment in partial satisfaction ofits lien.’’

Counsel for plaintiff: Douglas James Campion, Law Officesof Douglas J. Campion, San Diego, Cal.; counsel for defen-dant: Bruce Douglas MacLeod, Willough Stuart & Bening,Inc., San Jose, Cal.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qvnrn — at BNA’s website.

Text of the stipulated injunction is at http://op.bna.com/atr.nsf/r?Open=etyr-8qvp38 — at BNA’swebsite.

Interlocking Directorates

FTC Releases 2012 Revisions of § 8Thresholds for Interlocking Directorates

T he revised thresholds that trigger Clayton Act § 8prohibitions on interlocking directorates, whichtake effect immediately, are $27.784 million for

§ 8(a)(1) and $2.7784 million for § 8(a)(2)(A), the Fed-eral Trade Commission announced on Jan. 24

According to the text of a Federal Register notice, § 8:

prohibits, with certain exceptions, one person from servingas a director or officer of two competing corporations if twothresholds are met. Competitor corporations are covered bySection 8 if each one has capital, surplus, and undividedprofits aggregating more than $10,000,000, with the excep-tion that no corporation is covered if the competitive salesof either corporation are less than $1,000,000. Section8(a)(5) requires the Federal Trade Commission to revisethose thresholds annually, based on the change in gross na-tional product.

The FTC must revise the jurisdictional thresholds im-pacting interlocking directorates annually. The adjust-ments are based on the change in the level of Gross Do-mestic Product, adjusted annually to keep pace with in-flation.

The commission vote was 4-0 to authorize publica-tion of the Federal Register notice announcing the re-vised thresholds under § 8.

BY CECELIA M. ASSAM

Text of the Federal Register notice is available athttp://www.ftc.gov/os/2012/01/120124claytonact8.pdf —on the FTC’s website.

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Deceptive Practices

FTC Wins Orders to Halt OperatorsOf Phony Immigration Services Business

T he operators of a business that allegedly misledconsumers by representing themselves as an armof the federal government providing immigration

services would be banned from such conduct, accordingto proposed consent judgments orders filed in the U.S.District Court for the District of Nevada (FTC v. Immi-gration Center, D. Nev., No. 3:11-cv-00055-LRH-VPC,12/27/11).

The Federal Trade Commission announced the fil-ings of two proposed settlements against:

s Immigration Center, Charles Doucette, and Debo-rah Stilson; and

s Alfred Boyce.In addition to banning the conduct alleged in the

complaint, the proposed consent judgments would im-pose multi-million dollar suspended judgments.

The remaining defendants named in the agency’sJanuary 2011 complaint are in default. They include:Immigration Forms and Publications, Inc.; ThomasStrawbridge; Robin Meredith; Thomas Laurence; andElizabeth Meredith.

Challenged Conduct. The complaint alleged four viola-tions of FTC Act § 5.

According to the FTC, the defendants claimed thatthey were affiliated with the U.S. government andthereby authorized to provide immigration and natural-ization services. The defendants also allegedly told con-sumers that the fees paid—up to $2,500—would coverall the costs associated with submitting immigrationdocuments to the U.S. Citizenship and ImmigrationServices.

The complaint alleged that the defendants violated§ 5 by:

s misrepresenting that the defendants are autho-rized to provide immigration and naturalization ser-vices;

s misrepresenting that the defendants are affiliatedwith the U.S. government;

s misrepresenting fees and services; and

s providing other defendants (Immigration Formsand Publications, Inc., Thomas Strawbridge, RobinMeredith, Thomas Laurence, and Elizabeth Meredith)with the means and instrumentalities to deceive con-sumers.

The court entered an ex parte order on Jan. 26, 2011shutting down the operation, freezing the defendants’assets, and appointing a receiver to control the businessuntil resolution of the case.

Proposed Settlements. Each proposed consent judg-ment imposes a permanent ban against the defendantsfrom providing immigration services and prohibitsthem from making misrepresentations about any goodsor services, including:

s federal government affiliation;

s the terms of any refund or cancellation policy; and

s their qualification to provide legal advice or ser-vices.

The proposed decrees would prohibit them from sell-ing or otherwise benefitting from customers’ personalinformation and from failing to properly dispose of cus-tomers’ personal information within 30 days.

The Immigration Center, Doucette, and Stilson pro-posed judgment imposes a $3,743,652.60 judgmentagainst the corporate defendant and $3,141,667.42against Doucette, and Stilson; however, both will besuspended once they surrender certain assets—including a car and a mobile home.

Similarly, Boyce’s proposed judgment imposes a$2,771,807.63 judgment, which will be suspended oncehe fulfills the terms of his settlement.

The suspensions are based on financial informationprovided to the court. If that information turns out to befalse, the full judgments will become due immediately.

The commission vote approving the two proposedconsent judgments was 4-0.

BY CECELIA M. ASSAM

The complaint is available at http://www.ftc.gov/os/caselist/1023181/110131immigrationcmpt.pdf — on theFTC’s website.

The Immigration Center, Doucette, and Stilson pro-posed consent judgment is available at http://www.ftc.gov/os/caselist/1023181/120124immigrationorder.pdf — on the FTC’s website.

The Boyce proposed consent judgment is availableat http://www.ftc.gov/os/caselist/1023181/120124immigrationboyceorder.pdf — on the FTC’swebsite.

Supreme Court Declines to Review Tying CaseThe U.S. Supreme Court decides not to review sum-

mary judgment against a plaintiff’s claim that its com-petitor engaged in illegal tying in the manufacturingand sale of commercial laundry equipment. AndrewPullos asserted claims for restraint of trade in violationof Sherman Act § 1, monopolization in violation of Sh-erman Act § 2, tying in violation of Clayton Act § 3, ‘‘dis-paragement’’ in violation of § 43 of the Lanham Act, in-terference with prospective economic advantage, andintentional infliction of emotional distress. The Districtof Nevada, concluding that Pullos failed to raise a genu-ine issue of fact about whether a tying arrangement ex-isted, granted summary judgment to Alliance LaundrySystems, LLC on all claims asserted by Pullos. TheNinth Circuit affirmed in an unpublished opinion (Pul-los v. Alliance Laundry Systems LLC, U.S., No. 11-483,cert. denied, 1/23/12).

Text of the district court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtmvd — at BNA’swebsite.

Text of the Ninth Circuit’s unpublished decision is athttp://op.bna.com/atr.nsf/r?Open=etyr-8qtmw2 — atBNA’s website.

FDCPA Claim Isn’t Specific Enough to StickFair Debt Collection Practices Act allegations against

a debt collector fail to satisfy Fed.R.Civ.P. 8 becausethey are conclusory and merely track the statute’s lan-guage, the U.S. District Court for the District of Kansasconcludes in dismissing the claims. David and Melissa

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Webb alleged that ER Solutions, in its attempt to collecta consumer debt, violated the FDCPA, 15 U.S.C. § 1692et seq., in several ways. ER Solutions moved to dismiss.Judge J. Thomas Marten agrees with ER Solutions thatthe complaint failed to inform it what behavior was atfault. The Webbs alleged that ER Solutions called themrepeatedly with the intent to harass, engaged them inconversation with the intent to harass, and communi-cated with a third party about their debt. Since it findsthat the language of the claims tracked the statute ex-actly, the court decides that the allegations are not en-titled to a presumption of truth. The court concludesthat the Webbs have alleged no details whatsoever andthat, therefore, their claims fail ‘‘to meet the Rule 8pleading standard’’ (Webb v. Convergent Outsourcing,Inc., D. Kan., No. 2:11-cv-2606-JTM, 1/19/12).

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qprtm — at BNA’s website.

Brothers Plead Guilty to Wire Fraud for VA ContractsTwo brothers, formerly engaged in property manage-

ment and sales, plead guilty in the U.S. District Courtfor the Middle District of Florida to wire fraud in con-nection with housing repair contracts for the U.S. De-partment of Veterans Affairs. The defendants areJoshua R. Nusbaum, a former residential sales managerat West Palm Beach, Fla.-based Ocwen Loan ServicingLLC; and Andrew J. Nusbaum, a former contractor forOcwen. The Justice Department alleged in an informa-tion that the Nusbaums engaged in fraud by onebrother steering repair contracts to a company affiliatedwith the other in exchange for cash payments. Joshuapurportedly netted $14,000 in cash from Andrew be-tween March 2006 and April 2007. The Antitrust Divi-sion charged that the brothers sent each other competi-tive bid information and transmitted bids to Ocwen viawire communication in order to execute the scheme.Each wire fraud charge carries a maximum penalty of20 years’ imprisonment and a maximum fine of$250,000 (U.S. v. Nusbaum, M.D. Fla., No. 6:11-cr-00417-GAP-DAB, 1/25/12).

The Nusbaum information is available at http://op.bna.com/atr.nsf/r?Open=casm-8quszj — on BNA’swebsite.

The Andrew J. Nusbaum plea agreement is availableat http://op.bna.com/atr.nsf/r?Open=casm-8qut2s — onBNA’s website.

The Joshua R. Nusbaum plea agreement is availableat http://op.bna.com/atr.nsf/r?Open=casm-8qut45 — onBNA’s website.

Supreme Court Won’t Review FDCPA CaseThe U.S. Supreme Court denies certiorari in a Sev-

enth Circuit case declining to extend the Fair Debt Col-lection Practices Act to intentionally misleading com-munications with a judge in a state court action to col-lect a debt. Palisades Acquisition XVI LLC sued MichaelO’Rourke in state court on an old, defaulted credit carddebt incurred to Citibank, attaching a fake credit cardstatement to the complaint that looked like a recentstatement and showed Palisades as the creditor.O’Rourke sued Palisades for violating the FDCPA, 15U.S.C. § 1692, by using a materially false or misleadingstatement to collect a debt: however, O’Rourke arguedthat the statement was meant to mislead the state court

judge into granting a default judgment, not to misleadO’Rourke or any other consumer. The Northern Districtof Illinois granted summary judgment to Palisades be-cause O’Rourke offered no evidence that the fake state-ment filed with the state court—but not sent toO’Rourke before the suit was filed—would cause debtorconfusion. The Seventh Circuit held that the Fair DebtCollection Practices Act does not extend to communica-tions that would confuse or mislead a state court judgebecause nothing in the Act’s text extends its protectionsto anyone but consumers and those who have a specialrelationship with the consumer. The Seventh Circuit ex-pressly did not address whether the FDCPA applies tothe entire judicial process, a question left open in Belerv. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d470, 473 (7th Cir. 2007) (O’Rourke v. Palisades Acquisi-tion XVI LLC, U.S., No. 11-179, cert. denied 1/23/12).

Text of the Seventh Circuit’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtqnu — at BNA’swebsite.

Supreme Court Declines to Review FDCPA CaseThe U.S. Supreme Court will not review a decision

from the Third Circuit reinstating a debtor’s claims thatpayoff letters sent to her attorney in a mortgage foreclo-sure case violated the Fair Debt Collection PracticesAct, 15 U.S.C. § 1692. Dorothy Allen filed a putativeclass action against LaSalle Bank and its foreclosurefirm alleging that the ‘‘pay off’’ quote sent to her lawyeras part of a foreclosure action included illegally highfees and constituted unfair and unconscionable collec-tion practices. The district court dismissed Allen’sclaims, relying on Evory v. RJM Acquisitions FundingL.L.C., 505 F.3d 769 (7th Cir. 2007), because the com-munications were addressed to Allen’s lawyer and acompetent attorney would not be confused or misled bythe overcharges and any illegal billing represented inthe letters. The Third Circuit, reversing, noted that theFDCPA is a strict-liability statute that defines ‘‘commu-nication’’ broadly. It held that the FDCPA applies tocommunications with a debtor’s lawyer. While the dis-trict court implicitly concluded likewise, the districtcourt considered whether the lawyer would be deceivedby the inflated pay off demand instead of consideringthat seeking an amount that is not owed is per se un-conscionable under § 1692f(1). The New Jersey litiga-tion privilege does not absolve a debt collector from li-ability under the FDCPA, the court added, remandingfor the district court to consider whether Allen hadproven a claim under § 1692f(1). The Court declines toreview the Third Circuit’s decision (Fein, Such, Kahn &Shepard PC v. Allen, U.S., No. 10-1417, cert. denied1/23/12).

Text of the district court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtrh9 — at BNA’swebsite.

Text of the Third Circuit’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtrkp — at BNA’swebsite.

FDCPA Plaintiff Wins Counsel Fee AwardPlaintiff is entitled to counsel fees of $1,477 and costs

of $390 on his successful Fair Debt Collection PracticesAct claims, the U.S. District Court for the Southern Dis-trict of Florida holds. Gregory Reed sued Firstsource Fi-

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nancial Solutions, LLC for violating the FDCPA, 15U.S.C. § 1692 et seq., and accepted defendant’s offer ofjudgment. Judge Kenneth A. Marra reviews the billsfiled by Reed’s counsel, and he concludes that, based onhis experience with the rates charged in southernFlorida, the requested hourly rate of $350 is reasonable.Judge Marra reduces the requested hours on the bill byone hour. The court awards costs for filing and service(Reed v. Firstsource Financial Solutions, LLC, S.D. Fla.,No. 0:11-cv-62029-KAM, 1/24/12).

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qup7z — at BNA’s website.

Former Bank Executive Pleads Guilty to ConspiracyThe U.S. District Court for the Southern District of

Florida is considering a guilty plea from a former ex-ecutive of Miami-based Ocean Bank. Danilo P. Perezpleads guilty to participating in a conspiracy to solicit ordemand money and other things of value to influencean employee of a financial institution and failing to re-port the income on federal income tax returns, the Jus-tice Department reports. The Antitrust Division allegedthat Perez accepted nearly $500,000 in cash and otheritems from unnamed co-conspirators in connectionwith his supervision of certain unnamed customer busi-ness with the bank. Perez is facing a maximum sen-tence of five years’ imprisonment and a $250,000 fineon the conspiracy count and a maximum sentence ofthree years’ imprisonment and $250,000 fine for each ofthe tax charges (U.S. v. Perez, S.D. Fla., No.1:12-cr-20037-DLG1/25/12).

The information is available at http://op.bna.com/atr.nsf/r?Open=casm-8qutpd — on BNA’s website.

Supreme Court Rejects Certiorari on FDCPA ViolationThe U.S. Supreme Court declines to review a district

court determination that debt-collection letters on lawfirm letterhead, directing payment to the firm’s address,create a misleading ‘‘specter of potential legal action’’under the Fair Debt Collection Practices Act that is notdispelled by a disclaimer on the back of the letter thatno attorney is participating in the collection efforts. TheMiddle District of Pennsylvania granted summary judg-ment for Darwin Lesher on his claims that two collec-tion letters from a law firm violated the FDCPA, 15U.S.C. § 1692e, because each ‘‘plainly gives rise to theimplication that an attorney is involved in the collectionof a debt’’ and ‘‘does implicitly threaten legal action.’’The Third Circuit affirmed. Although the Court allowed

the Commercial Law League of America and the Na-tional Association of Retail Collection Attorneys per-mission to file amicus briefs, the Court declined to re-view the decision below awarding $1,000 statutorydamages and almost $45,000 in attorney fees to Lesher(Law Offices of Mitchell N. Kay PC v. Lesher, U.S., No.11-492, cert denied 1/23/12).

Text of the Third Circuit’s judgment is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtqbs — at BNA’swebsite.Text of the district court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtqaz — at BNA’swebsite.

FTC Explores Nuances of Mobile PaymentsAs merchants continue to offer a variety of payment

options, the Federal Trade Commission announced onJan. 26 that it will conduct a consumer workshop to ex-amine the use of mobile payments in the marketplace.The workshop, to be held on April 26, will address thisemerging technology involving payment via cell phoneapplications and their impact on consumers—i.e., thetechnology and business models used in mobile pay-ments, the consumer protection issues raised, and theexperiences of other nations where mobile paymentsare more common. Participants will include consumeradvocates, industry representatives, government regu-lators, technologists, and academics. The workshop isfree and open to the public.

Court Accepts Jurisdiction of TCPA ClaimBecause federal courts have jurisdiction over claims

under the Telephone Consumer Protection Act, a plain-tiff cannot remand her case to state court, the U.S. Dis-trict Court for the Eastern District of Missouri decides.Annette Heller filed a putative class action against HRBTax Group, Inc. in state court seeking damages forHRB’s alleged violation of the TCPA, 47 U.S.C. § 227.HRB removed the lawsuit, and Heller moved to remand.Magistrate Judge Terry I. Adelman observes that theSupreme Court had concluded unanimously in Mims v.Arrow Fin. Servs., LLC, 102 ATRR 65 (2012), that theTCPA’s grant of jurisdiction to state courts does not de-prive federal courts of federal question jurisdiction overTCPA claims,. Consequently, the magistrate judge de-nies Heller’s motion to remand (Heller v. HRB TaxGroup, Inc., E.D. Mo., No. 4:11-cv-1121-TIA, 1/19/12).

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qpqza — at BNA’s website.

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StateNewsPrice Fixing

Office Depot Loses Some Claims,Keeps Others in Flat Panel Case

O ffice Depot’s claims against flat panel manufactur-ers for price fixing under Florida law are timelybecause they were tolled by pending class actions,

but Office Depot’s California law claims fail, the U.S.District Court for the Northern District of Californiaconcludes (In re TFT-LCD (Flat Panel) Antitrust Litiga-tion, N.D. Cal., No. 3:07-md-1827-SI, 1/18/12).

Judge Susan Illston says that Office Depot has not al-leged a sufficient nexus to California law to satisfy dueprocess and that Office Depot’s California law claimsare untimely because the plaintiffs lacked standing inclass actions alleged to have tolled Office Depot’sclaims.

The NEC defendants succeed in carving off claimsbased on transactions between Office Depot and theNEC defendants as released in an unrelated settlement.The court holds that Office Depot did not release claimsagainst NEC entities based on coconspirator liability orany indirect purchaser claims.

Challenged Conduct. Office Depot filed suit againstmanufacturers of flat panel screens for a worldwideprice fixing conspiracy. Its claims were consolidatedinto the multidistrict flat panel antitrust litigation.

Office Depot asserted direct and indirect purchaserclaims under the Sherman Act § 1, Florida’s Deceptiveand Unfair Trade Practices Act (FDUTPA), and Califor-nia’s Cartwright Act and unfair competition law.

The defendants filed a joint motion to dismiss OfficeDepot’s state law claims as untimely and barred by dueprocess. The NEC defendants filed a separate motion todismiss Office Depot’s claims as implausible and assert-ing that Office Depot’s claims against NEC entities arebarred by the terms of a prior release executed in unre-lated litigation. Both motions also challenged Office De-pot’s complaint as improperly reliant on group plead-ing.

The Samsung, Sharp, and Toshiba defendants alsomoved to strike Office Depot’s jury demand based onjury waivers in their distribution contracts.

Analysis. Judge Illston agrees that Office Depot’sCalifornia claims fail, but she concludes that its Floridaclaims survive.

Office Depot filed suit more than four years after theprice-fixing conspiracy was revealed. While Office De-pot points to two class actions that could have equitablytolled its claims, the court concludes that tolling underCalifornia’s law would be inappropriate. First, becauseit is apparent from the face of Office Depot’s cited classaction complaints that the plaintiffs lacked standing,the court says Office Depot cannot rely on these pur-ported class actions to toll its California claims. Second,

the court decides that Office Depot’s allegations are in-adequate to support application of California law. Be-cause Office Depot cannot specifically allege that an oc-currence or transaction giving rise to this litigation hap-pened in California, due process precludes theapplication of California law, the court holds.

Office Depot’s Florida claims fare better, the courtconcludes. The court takes judicial notice of two classactions brought by Florida residents that includedFDUTPA claims. These actions are sufficient to toll theFlorida statute of limitations, the court rules.

The court agrees that Samsung, Sharp, and Toshibaare entitled to a bench trial on any dispute arising outof purchases made pursuant to contracts containing ajury waiver. However, the court notes, Office Depot re-mains entitled to a jury trial for its indirect-purchaserclaims as well as for any claims based on direct pur-chases that were not made pursuant to contracts thatcontained jury waivers. The court rejects the defen-dants’ argument that the jury waiver in the manufactur-ers’ newer contracts should apply retroactively to previ-ous dealings between the parties.

The NEC defendants also succeed in dismissing someof Office Depot’s claims based on a prior release in anunrelated dispute. The court explains that the settle-ment release, by its terms, applies to claims arising outof Office Depot’s purchases from NEC entities. Accord-ingly, all Office Depot claims based on direct purchasesfrom NEC entities are barred by the release, the courtholds, but any claims based on NEC’s coconspirator li-ability or on indirect purchases are unaffected.

As she has repeatedly done in the past, Judge Illstonrejects the defendants attack on the pleadings for im-permissible ‘‘group pleading,’’ and rejects NEC’s con-tention that the complaint implausibly alleges NEC’sparticipation in the conspiracy.

Counsel for plaintiff: Stuart H. Singer, Boies, Schiller &Flexner, LLP, Fort Lauderdale, Fla.; counsel for the NECdefendants: Stephen Holbrook Sutro, Duane Morris LLP,San Francisco, Cal.; counsel for defendants: Arka DevChatterjee, Harrison J. Frahn , IV, James Glenn Kreissman,Jason Matthew Bussey, Melissa Margaret Derr, Michael Ri-chard Perez-Lizano, Simpson Thacher Bartlett LLP, PaloAlto, Cal.; Allison Ann Davis, Davis Wright Tremaine LLP,San Francisco, Cal.; Christopher B. Hockett, Davis Polk &Wardwell, Menlo Park, Cal.; Rachel S. Brass, Gibson Dunn& Crutcher LLP, San Francisco, Cal.; Holly A. House, KevinC. McCann, and Sean David Unger, Paul Hastings Janofsky& Walker LLP, San Francisco, Cal.; Erin Murdock-Park,Cleveland, Ohio; Ernest E. Vargo , Jr., Michael EdwardMumford, Paul P. Eyre, and Tracy Lynn Cole, BakerHostetler LLP, Cleveland, Ohio; Elizabeth Catherine Arens,Covington and Burling, L.L.P., Washington, D.C.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qntl5 — at BNA’s website.

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Price Fixing

Connecticut Attorney General Announces$175,000 Settlement with DRAM Makers

F our manufacturers of dynamic random accessmemory have agreed to pay a total of $175,000 toresolve claims that they conspired to fix and inflate

prices artificially, Connecticut Attorney General GeorgeJepsen announced on Jan. 23.

The settling companies are:

s Elpida Memory, Inc., of Tokyo, Japan;

s Hynix Semiconductor Inc., of South Korea;

s Infineon Technologies AG, of Neubiberg, Ger-many; and

s Micron Technology, Inc., of Boise, Ida.Dynamic random access memory (DRAM) is applied

to semiconductor devices and modules for use in per-sonal computers, servers, workstations, and other elec-tronic devices.

Hynix, Infineon, and Micron are three of the fourlargest DRAM manufacturers in the world. These threecompanies and Samsung Electronics Company Ltd.controlled about 70 percent of DRAM sales in theUnited States between 1998 and 2002.

Jepsen declared that consumers ‘‘deserve the benefitand price advantages of a free and open marketplacewhen shopping for computers and other electronic de-vices. This settlement is a good result, reached withoutexpensive and protracted litigation.’’

The settlement requires the four companies, whichrefrain from admitting liability, to pay the state $43,750each by March 31. This is expected to resolve the state’sclaims.

Challenged Conduct. The state contended that Elpida,Hynix, Infineon, and Micron violated the ConnecticutAntitrust Act between 1998 and 2002.

An estimated 75 to 80 percent of DRAM memory issold to manufacturers of computer equipment andother memory-equipped devices or wholesale distribu-tors who have purchased DRAM from manufacturers.

The state’s investigation discovered and later allegedthat ‘‘overcharges paid by these manufacturers and dis-tributors for DRAM were likely passed on to consumersdirectly in the form of higher prices for computers,printers, networking equipment and other electronicdevices.’’

This resulted in allegations against the DRAM manu-facturers for coordinating the prices they charged tocontract and other customers and with reducing thesupply in order to artificially raise prices.

The U.S. Justice Department launched a criminal in-vestigation of the DRAM market in June 2002 that re-sulted in guilty pleas from four manufacturers—Samsung, Hynix, Infineon, and Elpida—and 12 indi-viduals. DOJ’s probe also resulted in payments of over$730 million in fines. Micron, which admitted its role inthe conspiracy, received amnesty from DOJ for cooper-ating with the investigation.

In 2007, Connecticut settled a similar civil complaintagainst Samsung and Winbond Electronics Corp. It waspart of a larger multistate group of attorneys generalstill awaiting distribution of the states’ $10 million

settlement. Class actions have been resolved with Sam-sung, Winbond, Elpida, Hynix, Infineon, Micron, andothers to provide restitution to consumers.

Jepsen commended Assistant Attorneys General W.Joseph Nielsen and Michael E. Cole for leading hisstate’s efforts in this case.

Jepsen serves as co-chair of the Antitrust Committeeof the National Association of Attorneys General.

BY CECELIA M. ASSAM

The settlement is available at http://www.ct.gov/ag/lib/ag/press_releases/2012/1-23-12_connecticut_dram_settlement_agreement.pdf — on the attorney general’swebsite.

Price Fixing

Most Flat Panel Retailer’s Claims underState Statute Survive Limitations Attack

A lthough it finds that the plaintiffs filed their anti-trust claims against flat panel manufacturers for aworldwide price fixing conspiracy after the four-

year statute of limitations had run, the U.S. DistrictCourt for the Northern District of California holds thatthe plaintiffs’ Michigan law claims and indirect pur-chaser claims under Arizona law are timely becausethey were tolled by pending litigation (In re TFT-LCD(Flat Panel) Antitrust Litigation, N.D. Cal., No. 3:07-md-1827-SI, 1/18/12).

Judge Susan Illston dismisses the plaintiffs’ directpurchaser claims under Arizona law as untimely be-cause those claims were not expressly alleged in a classaction that tolled the limitations period against the de-fendants, products, and conspiracy period identified inthat lawsuit.

Challenged Conduct. P.C. Richard & Son is a chain ofprivate, family-owned electronics and appliance stores.

P.C. Richard and several others filed claims underSherman Act § 1 and the antitrust laws of Arizona, Illi-nois, Michigan, and New York against the manufactur-ers of flat panel screens. They alleged a worldwide pricefixing conspiracy.

The defendants filed two motions to dismiss P.C. Ri-chard’s claims. Most of the defendants filed a joint mo-tion to dismiss P.C. Richard’s Michigan and Arizonalaw claims as untimely filed after the four-year statuteof limitations for antitrust claims under those statuteshad expired. The defendants also argued that P.C. Rich-ard’s complaint should be dismissed because it imper-missibly relies on group pleading.

NEC Corp. and related entities filed a separate mo-tion to dismiss all of P.C. Richard’s claims as impermis-sibly reliant on group pleading and implausibly demon-strating that NEC participated in the conspiracy.

Analysis. The court concludes that P.C. Richard’sMichigan law claim is timely but that any direct pur-chaser claims under Arizona law are not timely.

The Michigan statute’s general four-year statute oflimitations is tolled by Mich. Comp. Laws § 445.781(2),which provides that suit can be brought within one yearafter conclusion of any timely action brought by thestate. Because the Attorney General of Michigan has apending antitrust action based on these facts, the court

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agrees with the plaintiff that its claims are timely underMichigan’s statute. It is irrelevant under the Michiganstatute that P.C. Richard sues parties not included in theattorney general’s suit, the court adds, because theMichigan statute is based on the Clayton Act and in-cludes a harmonization provision. Because the ClaytonAct tolls the statute against all conspirators, the courtholds, Michigan’s statute does the same.

However, some of P.C. Richard’s claims are time-barred under the Arizona statute, the court concludes.P.C. Richard argued that the statute of limitations wassuspended by a class action from March 2007 into earlyNovember 2007. While the defendants countered thatthe applicable class in that lawsuit was narrowed to ex-clude retailers such as P.C. Richard, the court decidesthat P.C. Richard is entitled to tolling at least until itwas excluded from the class definition. On the otherhand, the court agrees with the defendants that onlythose claims expressly asserted in the class action weretolled and that P.C. Richard can assert claims againstonly the defendants, products, and conspiracy periodidentified in the class action. Because the class actionasserts claims on behalf of only indirect purchasers,therefore, the court dismisses P.C. Richard’s direct pur-chaser claims as untimely.

Denial of NEC’s Motion. Judge Illston denies the NECdefendants’ motion to dismiss.

The court, noting that it has recently addressed bothof NEC’s arguments and found them lacking, ‘‘findsthat P.C. Richard’s complaint states a plausible claimfor relief against NEC.’’

Counsel for plaintiff: Philip J. Iovieno, Anne M. Nardacci,and Christopher V. Fenlon, Boies Schiller & Flexner, Al-bany, N.Y.; William A. Isaacson, Boies Schiller & Flexner,Washington, D.C.; counsel for the NEC defendants: Ste-phen Holbrook Sutro, Duane Morris LLP, San Francisco,Cal.; counsel for defendants: Arka Dev Chatterjee, HarrisonJ. Frahn, IV, James Glenn Kreissman, Jason Matthew Bus-sey, Melissa Margaret Derr, Michael Richard Perez-Lizano,Simpson Thacher Bartlett LLP, Palo Alto, Cal.; Allison AnnDavis, Davis Wright Tremaine LLP, San Francisco, Cal.;Christopher B. Hockett, Davis Polk & Wardwell, MenloPark, Cal.; Rachel S. Brass, Gibson Dunn & Crutcher LLP,San Francisco, Cal.; Holly A. House, Paul Hastings LLP,San Francisco, Cal.; Kevin C. McCann and Sean David Un-ger, Paul Hastings Janofsky & Walker LLP, San Francisco,Cal.; Erin Murdock-Park, Cleveland, Ohio; Ernest E. Vargo, Jr., Michael Edward Mumford, Paul P. Eyre, and TracyLynn Cole, Baker Hostetler LLP, Cleveland, Ohip; ElizabethCatherine Arens, Covington and Burling, L.L.P., Washing-ton, D.C.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qnszd — at BNA’s website.

Deceptive Practices

California Law Exempting Calls to CustomersFrom Liability Does Not Defeat TCPA Claim

A California statute that exempts from liability auto-matically dialed telephone calls to a company’sown customers does not trump liability for the

same conduct under the federal Telephone ConsumerProtection Act, the U.S. District Court for the Southern

District of California rules (Ridley v. Union Bank N.A.,S.D. Cal., No. 3:11-cv-01773-DMS-NLS, 1/18/12).

The defendant bank, with which the plaintiff had per-sonal checking and savings accounts, allegedly used anautomatic telephone dialing system to contact the plain-tiff on her mobile phone about a third party’s loan.

The plaintiff filed a putative class action for invasionof privacy under the TCPA, 47 U.S.C. § 227.

The defendant, moving to dismiss the complaint, ar-gued that the plaintiff cannot enforce the TCPA becauseCalifornia law does not permit a private right of actionfor the defendant’s alleged conduct.

Specifically, California Public Utilities Code (PUC)§ 2872(f), which generally prohibits the use of an ‘‘auto-matic dialing-announcing device,’’ exempts from liabil-ity a company that automatically dials one of its owncustomers.

No Authority. The court decides that, ‘‘[a]ssuming,without deciding, that Defendant’s conduct is exemptfrom liability under the PUC, Defendant provides no au-thority for the proposition that exemption from liabilityunder state law provides a correlative exemption underthe TCPA.’’

The cases cited by the defendant, the court notes, ad-dressed how and when to bring a TCPA action but didnot address whether the plaintiff has a private right ofaction under the TCPA.

The court notes that ‘‘[n]ormally this would betreated as a preemption issue,’’ but it declines to ad-dress preemption because neither party raised the is-sue.

Additionally, the fact that § 2872(f) remained on thebooks far beyond the TCPA’s enactment was not deter-minative of whether the exemption under the Californialaw precludes any liability under the TCPA, the courtholds.

Counsel for plaintiff: Douglas J. Campion, Law Offices ofDouglas J. Campion, San Diego, Cal.; Robert L. Hyde andJoshua B. Swigart, Hyde and Swigart, in San Diego; AbbasKazerounian, Kazerounian Law Group, in Santa Ana, Cal.;counsel for defendant: .Stacie D. Yee, Squire Sanders LLP,in Los Angeles, Cal.

Full text of the court’s order is available at http://op.bna.com/pl.nsf/r?Open=kjon-8qtlcz.

Counsel Fees

Baby FTC Act PlaintiffsCan Win Counsel Fee Multiplier

T he district court incorrectly refused to apply a mul-tiplier factor to the lodestar counsel fee awardedsuccessful plaintiffs in an Unfair Practices Act

case, the New Mexico Court of Appeals concludes(Atherton v. Gopin, N.M. Ct. App., No. 29,850, 1/19/12).

Plaintiffs won on a claim that the defendant violatedNew Mexico’s Unfair Practices Act, N.M. Stat. Ann.§ 57-12-1 to § 57-12-26. Plaintiffs were thus entitled toan award of counsel fees under § 57-12-10(C).

The district court, concluding that New Mexico onlyallows multipliers in class actions and ‘‘common fund’’situations, refused as a matter of law to consider a mul-tiplier factor to the lodestar fee for approval.

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Judge Michael D. Bustamante, joined by JudgesJonathan B. Sutin and Roderick T. Kennedy in revers-ing the decision, holds that a district court may considera multiplier in UPA cases.

The fees awarded under the statute must be reason-able, the court of appeals stresses, and the lodestaramount can be increased by a multiplier if the courtfinds that a greater fee is more reasonable in light of therisk factor and the results obtained.

The UPA contains no limitation on the award ofcounsel fees, the court emphasizes; thus, the districtcourt erred in refusing to even consider whether a mul-tiplier was appropriate. ‘‘That we have not yet explicitlyapproved of the use of a mulitplier outside of the classaction or ‘common fund’ setting is not authority for thedistrict court’s conclusion that a multiplier should notbe considered outside those contexts,’’ the court adds.

Since it observes that the district court did not exam-ine the question, the court of appeals refuses to con-sider whether the lodestar rate subsumed the risk ofnonpayment that a multiplier would otherwise compen-sate. Instead, the court points out that the district courthas discretion to apply a multiplier in a UPA case to theextent that the lodestar rate does not take into accountthe factors that justify a multiplier.

The court also rejects the defendant’s argument thatthe plaintiffs waived their right to ask for a multiplier orthat the plaintiffs’ estimate of fees during settlementtalks estopped the plaintiffs from seeking a multiplier iftalks failed.

Finally, agreeing that successful UPA plaintiffs areentitled to counsel fees for prosecuting their appeal, thecourt of appeals remands for consideration of whethera multiplier is appropriate and of the reasonable costsand fees for this appeal.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qsqz5 — at BNA’s website.

Price Fixing

Defendants Parry Some Florida LawAccusations in Flat Panel Case

A Florida retailer’s indirect purchaser claims underthe Florida Deceptive and Unfair Trade PracticesAct against flat panel manufacturers were equita-

bly tolled by class actions expressly alleging the sameclaims, the U.S. District Court for the Northern Districtof California reiterates in another opinion on statute oflimitations attacks on complaints in the multidistrict flatpanel litigation (In re TFT-LCD (Flat Panel) AntitrustLitigation, N.D. Cal., No. 3:07-md-1827-SI, 1/18/12).

Judge Susan Illston, reiterating that only those claimsexpressly asserted in the prior class actions are timely,dismisses BrandsMart’s direct purchaser claims underthe Florida statute because a class action by direct pur-chasers did not include claims under Florida law. Thecourt also denies a separate motion by the NEC defen-dants to dismiss the complaint as failing to plausibly al-lege NEC was involved in the conspiracy.

Challenged Conduct. Interbond Corp. of America, op-erating under the name ‘‘BrandsMart,’’ is a consumerelectronics supplier whose price fixing claims have

been consolidated into the multidistrict flat panel anti-trust litigation.

BrandsMart filed suit as a direct and indirect pur-chaser of flat panels from the conspiring manufacturersand asserted claims under Sherman Act § 1 and Flori-da’s Deceptive and Unfair Trade Practices Act(FDUTPA), Fla. Ann. Code § 271-§ 285.

The manufacturer defendants in BrandsMart’s com-plaint filed a joint motion to dismiss BrandsMart’sclaims as untimely. The NEC defendants also filed aseparate motion to dismiss contending that BrandsMartfailed to plausibly allege NEC’s involvement in the con-spiracy.

Analysis. Judge Illston dismisses BrandsMart’sFDUTPA claims based on direct purchases becausethey were not asserted in a pending class action by di-rect purchasers. BrandsMart’s remaining claims weretolled, the court holds.

While BrandsMart did not file suit within four yearsof the Justice Department’s announcement of its inves-tigation into the flat panel conspiracy, BrandsMart ar-gued that its claims were tolled by pending class ac-tions. The court, taking judicial notice of two class ac-tions by indirect-purchasers that included FDUTPAclaims, agrees that BrandsMart’s claims are tolled as tothose defendants, products, and conspiracy periodsidentified in the class complaints.

However, the court refuses to conclude thatBrandsMart’s Florida claims were tolled by a direct-purchaser class action that did not include any claimsunder Florida law. Tolling under the doctrine of Am.Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), doesnot extend to claims not asserted in the prior class ac-tion, the court instructs. BrandsMart also did not estab-lish that Florida law recognizes tolling if the otherwiseuntimely claim is not expressly asserted in the prior ac-tion.

Finally, the court rebuffs the defendants’ attack onBrandsMart’s complaint as impermissibly relying ongroup pleading. ‘‘This Court has addressed similar ar-guments numerous times in this MDL and has con-cluded that allegations substantially similar toBrandsmart’s satisfy federal pleading standards,’’ thecourt reiterates.

NEC’s attack on BrandsMart’s complaint is also un-availing, the court adds. The court, declaringBrandsMart’s allegations more detailed than others thecourt had previously found sufficient, concludes thatBrandsMart’s complaint plausibly alleges that NEC wasa conspirator.

Counsel for plaintiff: Philip J. Iovieno, William A. Isaacson,and Stuart H. Singer, Boies, Schiller & Flexner LLP, Al-bany, N.Y.; counsel for the NEC defendants: Stephen Hol-brook Sutro, Duane Morris LLP, San Francisco, Cal.; coun-sel for defendants: Arka Dev Chatterjee, Harrison J. Frahn, IV, James Glenn Kreissman, Jason Matthew Bussey, Mel-issa Margaret Derr, Michael Richard Perez-Lizano, Simp-son Thacher Bartlett LLP, Palo Alto, Cal.; Allison AnnDavis, Davis Wright Tremaine LLP, San Francisco, Cal.;Christopher B. Hockett, Davis Polk & Wardwell, MenloPark, Cal.; Rachel S. Brass, Gibson Dunn & Crutcher LLP,San Francisco, Cal.; Holly A. House, Paul Hastings LLP,San Francisco, Cal.; Kevin C. McCann and Sean David Un-ger, Paul Hastings Janofsky & Walker LLP, San Francisco,Cal.; Erin Murdock-Park, Cleveland, Ohio; Ernest E. Vargo, Jr., Michael Edward Mumford, Paul P. Eyre, and TracyLynn Cole, Baker Hostetler LLP, Cleveland, Ohio; Elizabeth

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Catherine Arens, Covington and Burling, L.L.P., Washing-ton, D.C.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qpltz — at BNA’s website.

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FranchisingAutomobiles

Older Version of Dealership Act AppliesTo Michigan Dealer’s Contract with Kia

A Michigan dealership had no right to object to KiaMotors’ authorization of a new dealership morethan six miles away because the relationship be-

tween Kia Motors and the dealership is governed by theMichigan Motor Vehicle Act as it existed at execution oftheir agreement, the U.S. District Court for the EasternDistrict of Michigan decides (Kia Motors America, Inc.v. Glassman Oldsmobile Saab Hyundai, Inc., E.D.Mich., No. 2:11-cv-12090-AJT-MAR, 1/23/12).

Judge Arthur J. Tarnow grants Kia a declaration thatits 1998 agreement authorizes a new dealership sevenmiles from the existing dealership, despite a 2010amendment to the Michigan statute protecting dealer-ships to a radius of nine miles, and dismisses the deal-ership’s counterclaim for declaratory relief.

Challenged Conduct. Kia Motors wanted to authorizea new dealership seven miles from an existing dealer-ship in Troy, Mich. The existing dealership, GlassmanOldsmobile Saab Hyundai, Inc., refused to waive anyrights to object to the new location.

Under Kia’s 1998 contract with Glassman, Kia’s onlylimitation on changing Glassman’s sales territory was‘‘applicable law.’’ Under Michigan’s Motor Vehicle Act(MVA), Mich. Comp. Laws § 445.1566(a) and§ 445.1576, dealers were protected from new entrants inthe local market by an ‘‘anti-encroachment’’ provisiongiving rights to contest dealerships within six miles ofthe existing dealership. On Aug. 4, 2010, a new amend-ment to the Michigan MVA extended the anti-encroachment zone to nine miles. Kia contacted Glass-man on Aug. 20, 2010 and verbally told Glassman aboutthe new dealership.

Kia sued Glassman seeking a declaratory judgmentthat the old Michigan MVA’s six-mile zone governedGlassman’s right to notice and legal recourse regardingthe new dealership Kia wants to authorize. Glassmancounterclaimed for a declaratory judgment that theamended MVA’s nine-mile anti-encroachment zone ap-plies.

Analysis. Judge Tarnow, entering judgment for Kiaand dismissing Glassman’s counterclaim, holds that the1998 agreement incorporates Michigan’s older six-milestatutory protection for dealerships.

‘‘Under clearly-settled Michigan law, statutes andamendments to statutes are ‘presumed to operate pro-spectively unless the contrary intent is clearly mani-fested,’ ’’ Judge Tarnow explains. Citing Frank W.Lynch & Co. v. FlexTech, Inc., 624 N.W.2d 180 (Mich.2001), Judge Tarnow posits that the legislature demon-strates an intent to apply the law only prospectively if itdoes not expressly make an amendment retroactive.

The 2010 amendment to Michigan’s MVA is silentabout retroactive application. While Glassman ad-vanced several arguments for retroactivity, the courtfinds them to be unpersuasive absent a clear demon-stration of intent by the legislature. Instead, relying onthe reasoning in Dale Baker Oldsmobile v. Fiat Motorsof N. Am., 794 F.3d 213 (6th Cir. 1986), and Ace CycleWorld, Inc. v. Am. Honda Motor Co., 788 F.2d 1225 (7thCir. 1986), the court concludes that the amendmentmodifying the relevant market area around dealershipsis substantive and should apply only prospectively.

The court also rejects Glassman’s alternative argu-ments that the contract incorporates the new amend-ment to the MVA. While the sales agreement limitsKia’s ability to change Glassman’s sales area except asprohibited by ‘‘applicable law,’’ Glassman argued thatthe term ‘‘applicable law’’ is meant to reference the lawat the time the change to Glassman’s territory occurs—that it intends to incorporate changes in the law into thecontract. The court, disagreeing, notes that contractsare generally assumed to incorporate only law existingat the time the contract is made. Where the contractdoes not evidence a clear intent to be bound by futurechanges in the law, the court declines to infer one.

Distinguishing Lahti v. Fosterling, 99 N.W.2d 490(Mich. 1959), the court also refuses to consider priorversions of the Michigan MVA to ‘‘cease to exist’’ whennew ones are enacted. The amendment in Lahti was re-medial in nature, rather than substantive like the 2010amendments to the Michigan MVA, the court instructs.

Counsel for plaintiff: Jonathan T. Walton , Jr., Walton &Donnelly, Detroit, Mich.; counsel for defendant: Eric R.Bowden and Lawrence F. Raniszeski, Colombo & Colombo,Bloomfield Hills, Mich.

BY ELEANOR S. TYLER

Text of the court’s decision is at http://op.bna.com/atr.nsf/r?Open=etyr-8qtjgr — at BNA’s website.

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InternationalNewsMergers and Acquisitions

Current Official, Former Official ExchangeVerbal Barbs Over Withdrawal of Clearance

P ARIS—There is a public row between FrenchCompetition Authority President Bruno Lasserreand Guillaume Cerutti, former competition direc-

tor in the Finance Ministry, over the authority’s with-drawal of a merger authorization granted by the minis-try over five years ago.

The ministry in 2006 authorized encrypted TV com-pany Canal Plus to take over French pay TV operatorTPS, but the authority last September rescinded the au-thorization (101 ATRR 420). The ministry cleared thedeal on condition that Canal Plus honors 59 commit-ments to allow Internet service providers (ISPs) to be-come credible pay TV rivals to the encrypted TV chan-nel in the medium term.

In March 2009, merger control powers were trans-ferred from the ministry to the new Competition Au-thority.

The authority last September decided that Canal Plushad failed to honor 10 of the 59 commitments, and itfined Canal Plus a30 million for failing to respect all thecommitments made to obtain clearance for the merger.

The opening shot in the dispute came from Cerutti,who lambasted the authority’s decision in an op-ed pub-lished on Jan. 4 by the French economic daily newspa-per La Tribune. He alleged that the authority seemed tohave forgotten the balance between legal consider-ations and economic realities. In particular, he con-demned the authority for acting five years after theevent, since the infringements were likely to have oc-curred within the first few months of the transaction.

The authority, Cerutti maintained, should have or-dered Canal Plus to apply the commitments or have im-posed a fine. Instead, the company will probably haveto accept new commitments and remain under surveil-lance for some years. This means the authority is stray-ing from its ‘‘founding mission’’ by becoming a virtuallypermanent regulator of an economic sector, Ceruttisaid. Implicitly, the authority is criticizing public regu-lation of the French audiovisual sector, according toCerutti, who left the ministry in 2007.

In his Jan. 23 reply, published on Jan. 24 by La Tri-bune and confirmed by Bloomberg BNA, Lasserre criti-cized Cerutti for ‘‘factual errors, hasty conclusions, ap-proximations, and trial by supposition.’’ Lasserre ac-cused him of ‘‘having had his comments read inadvance of publication by the Canal Plus manage-ment.’’ In the end, Cerutti ‘‘simply missed the target,’’Lasserre declared.

The ministry’s General Directorate for CompetitionPolicy, Consumer Affairs and Fraud Control (DGCCRF)could have taken action between 2007 and 2009,Lasserre observed, but it responded with silence to pro-tests by France Telecom that Canal Plus was not re-

specting its commitments. While building its newmerger control division, the authority carried out a de-tailed investigation of the case that should have beenconducted by the DGCCRF, he disclosed. The problemwas the inefficiency of the then dual system, he added.

Lasserre denied that the authority was straying fromits ‘‘founding mission.’’ Providing expert advice oncompetition to the government has been one of its rolessince its predecessor, the Competition Council, was cre-ated in 1986, he noted. As for the decision to withdrawclearance for the merger, he said the option of orderingthe company to comply with the commitments was not‘‘effective and realistic.’’ The fact the commitmentshadn’t been applied for four years had altered the au-diovisual landscape and the access for ISPs, he ex-plained.

Forcing the company to offer sufficiently attractivecontent for pay TV operators to create competitivepackages for the time remaining for authorizationwould have had no effect, and anyway it would havebeen difficult to negotiate rights with American majorsfor a few months. Noting that the ministry’s decisionwas based largely on the council’s economic analysis,he maintained that withdrawal of clearance permits re-assessment of the competition situation in light of theimpact of Canal Plus’s failure to comply.

BY BARBARA CASASSUS

State Aid

Europe’s Largest Postal Service Is OrderedTo Repay $1.3 Billion in Illegal Subsidies

B RUSSELS—The European Commission on Jan. 25ruled that Europe’s leading postal service pro-vider, German company Deutsche Post, must re-

pay as much as $1.3 billion in illegal state aid receivedover the last decade.

The commission also held that the Belgian govern-ment must retrieve approximately $600 million in ille-gal subsidies given to state-owned Bpost. The commis-sion approved subsidies given by the French govern-ment to La Poste, the state-owned former monopolist,for delivering mail in remote areas.

In its role as enforcer of the European Union’s single-market rules, the commission has the power to forceMember States to seek the return of illegal subsidies.

The ruling against Deutsche Post and the Germangovernment is the latest in a long-running dispute trig-gered by United Parcel Service and other companiestrying to break into the liberalized European mail andparcel delivery market. While finding up to $1.3 billionin aid to Deutsche Post to be illegal, the commission ap-proved $7 billion received by Deutsche Post to cover thecost of universal service.

‘‘Our ultimate aim is to prevent distortions of compe-tition that would hinder citizens and businesses from

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enjoying the benefits of full market opening that willsoon be completed in all member states,’’ according toEuropean Competition Commissioner Joaquin Almu-nia. He added that the precise amount to be repaid byDeutsche would be determined based on informationstill to be provided by Germany.

Appeal by Deutsche Post. The commission’s rulingtriggered a prompt response from Deutsche Post, whichcharacterized the decision as one with ‘‘no basis infact’’ and which pledged an appeal to the EuropeanCourt of Justice.

‘‘The European Commission ruling on a repayment isincomprehensible,’’ Deutsche Post said in a statement.‘‘[I]t stands in clear contradiction to an earlier EU deci-sion and the outcomes of similar proceedings . . . .’’ Thecommission, it charged ‘‘has applied double standards.’’

Deutsche Post said the commission approved stateaid to La Poste in 2007 for the same reasons it was nowforcing the German company to repay subsidies.

In the case of Belgium’s state-owned Bpost, the com-mission ruled the company legally benefited from sub-sidies surpassing $4 billion since 1997. However, it saidBpost must repay approximately $600 million because‘‘yearly compensations received in the period between1992-2010 for public service missions resulted in someovercompensation.’’

BY JOE KIRWIN

Regulated Industries

Telecom Regulator Outlines New PolicyTo Promote Technology and Competition

O TTAWA—A new policy that will encourage Cana-da’s large telephone companies to adopt rapidlyInternet Protocol-based services across their net-

works will promote the development of innovative ser-vices and enhanced competition, according to Jan. 19remarks by Chairman Konrad von Finckenstein of theCanadian Radio-television and TelecommunicationsCommission.

The policy requires large telephone companies usingInternet Protocol (IP) to transfer calls to affiliated or un-affiliated providers to offer a similar arrangement toany other provider and simplifies the rules for deter-mining the cost of transferring calls between wirelineand wireless providers, von Finckenstein explained in astatement accompanying Telecom Regulatory PolicyCRTC 2012-24.

‘‘The networks of the future will be primarily basedon Internet Protocol,’’ he predicted. ‘‘We have estab-lished basic principles to ensure this technology be-comes the industry standard for voice networks asquickly as possible.’’

The policy follows on a public hearing launched lastMarch to review voice network interconnection issues,as there are currently separate regulatory frameworkson connecting local exchange carriers’ (LECs) net-works, on connecting wireless networks to LECs, andon connecting long distance networks and LECs, thenew policy stated.

The parties that participated in the hearings agreedthat IP is the network technology of the future and willeventually replace the current time-division multiplex-

ing (TDM) standard, the policy maintained. There waspreviously no agreement on whether mandated IP voicenetwork interconnection is necessary, but many partiesnow support a framework permitting carriers to enterinto bilateral commercial negotiations with other carri-ers to implement IP voice network interconnection.

Transition to IP-based networks is imperative to cre-ating a digital economy that will benefit Canadians bypromoting innovation in new services; while a signifi-cant number of end-users already are served by IP-based carriers, there has been very little progress be-tween TDM-based carriers and IP-based carriers to ex-change voice calls, the CRTC policy statement noted.

The CRTC ‘‘therefore considers that it would be inthe public interest to establish principles to facilitate IPvoice network interconnections between network op-erators while allowing market forces to shape the de-tails of their arrangements as much as possible.’’

The CRTC policy calls for carriers who provide IP-based voice interconnection to an affiliate, division ofits operations, or unrelated service provider to negoti-ate similar arrangements with any other carrier withinsix months of that carrier submitting a formal request.It also addresses the cost of interconnection, noting thatindependent wireless carriers are currently responsiblefor paying the entire cost of interconnection unless theyallow alternative long distance providers to access theirnetworks.

Wireless carriers now will be able to interconnectwith local exchange carriers to exchange local voicetraffic on a shared-cost basis, the policy stated. ‘‘Thiswill level the playing field regarding voice network in-terconnection between wireless carriers that have noLEC affiliations and wireless carriers that are affiliatedwith a LEC,’’ the policy statement concluded.

BY PETER MENYASZ

Telecom Regulatory Policy CRTC 2012-24 is availableat http://www.crtc.gc.ca/eng/archive/2012/2012-24.htm — on the CRTC’s website.

Deregulated Industries

French Antitrust Agency Clears PlanTo Blunt Dominance in Weather Forecasts

P ARIS—The French Competition Authority has en-dorsed commitments from the state-ownedweather forecasting agency Meteo-France to sepa-

rate its commercial activities from its public servicemissions and to introduce audited cost accounts to en-sure it.

In decision no. 12-D-04 of Jan. 23, the authority re-sponded to accusations of predatory pricing by MeteoConsult, which offers forecasting services to the publicand professionals and accused its rival of bidding artifi-cally low prices to firms through cross subsidies in or-der to squeeze it out of the corporate market.

Apart from separating its public service and commer-cial activities, Meteo-France pledged to commission anindependent firm to audit its cost accounts for fiveyears, to transmit its costs to the authority, and to pub-lish a summary of them annually until the end of 2015.

Meteo-France diversified from its public service rolein the 1980s and now generates sales of some a40 mil-

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lion from its commercial activities. In its preliminary in-vestigation last September, the authority did not ruleout cross-subsidies in view of the absence of cost ac-counts. Meteo-France on Sept. 28 submitted a first pro-posal for commitments and revised them after a markettest and discussions with the authority’s board.

These commitments are consistent with the 2005 rec-ommendations of the public audit authority, the Courdes Comptes, which in turn echoes repeated calls by theauthority’s predecessor, the Competition Council, toseparate monopoly activities from those open to compe-tition.

BY BARBARA CASASSUS

Dominance

Website Twenga Is Latest to ComplainOf Google Search Engine Discrimination

B RUSSELS—The list of companies to file antitrustcomplaints against Google in the European Unionexpanded on Jan. 24 when up-and-coming shop-

ping website Twenga claimed discrimination by theworld’s largest search engine.

Twenga co-founder and Chief Executive OfficerBastien Duclauz told journalists on Jan. 24 that Googlehad dramatically altered its search engine results in2011 to favor its own online shopping services. As a re-sult, he said the company registered 30 percent fewervisits in 2011.

Twenga has developed an automated process to giveprice comparison of websites so that users have accessto millions of products sold online. Launched in Francein 2008, it now boasts online shopping operations in 15countries.

‘‘The abusive practices of Google strengthened con-siderably in 2011 with a clear willingness to eliminateall forms of competition in several sectors such asvideo, hotel, and product searches and airfare searches,despite antitrust probes in Europe and the UnitedStates,’’ Duclauz charged. ‘‘In this context, Twenga hasasked the European Commission to quickly make theUnited States giant stop its anticompetitive actions,which undermine innovation and jobs in the EU.’’

Formal Investigation? The complaint from Twenga isthe most prominent complaint filed against Google inthe EU since Microsoft announced in 2011 that it hadlodged a grievance with its former adversary—the Eu-ropean Commission.

EU officials in 2010 launched an ‘‘unofficial’’ investi-gation concerning complaints that Google abuses itsdominant position in search engines to favor its ownservices. According to EU officials, a decision couldcome as early as March about whether to move on to aformal investigation.

Google did not respond to a request for a comment tothe new complaint filed by Twenga.

The new complaint against Google related to searchengine operations comes one week after the commis-sion restarted its antitrust review of the California-based company’s pending acquisition of Motorola Mo-bility. The commission had halted the antitrust reviewat the end of 2011 because it needed more information.

BY JOE KIRWIN

Mergers and Acquisitions

French Agency Raises No ObjectionTo Consolidation of Sugar Producers

P ARIS—The French Competition Authority hascleared the takeover of sugar producer Vermando-ise by its rival, Cristal Union, without any condi-

tion.In decision no. 12-DCC-06 of Jan. 20, the authority

determined that competition would not be threatenedpartly because European sugar production quotas andreference prices have been reduced, European marketscontinue to open up to intra-Europe competition, andworld prices for recent sugar beet harvests have in-creased sharply. In addition, the European authoritieshave taken measures to allow for larger quotas in orderto limit price increases and volatility.

The decision, which focused on sugar supplies to theagrifood industry since Vernandoise does not markettable sugar, added that the new combined group wouldovertake Tereos and Saint Louise Sucre of the Sud-zucker group in France on the basis of the 2010-2011harvest. But the last two would remain significant com-petitors because Tereos holds a bigger sugar produc-tion quota nationally than the new group and the Sud-zucker is the European market leader.

Although Tereos and Saint Louis Sucre export a largeshare of their output to other European countries, theycould respond to increased demand from French com-panies. Neighboring countries to the north and east ofFrance have a production surplus, and competitors situ-ated at the frontier—like Pfeider & Langen andSudzucker—could boost sales in France.

Finally, the authority noted, the industrial sugar mar-ket is not transparent enough for the merger to fostercollusion between French producers because pricesusually are set by over-the-counter agreement.

BY BARBARA CASASSUS

State Aid

EU Relaunches Efforts to CrackDown on Illegal Subsidies to Airports

B RUSSELS—The long-running dispute between theEuropean Commission and regional governmentsthat subsidize out-of-the-way airports to attract

low-cost airlines, such as Ryanair, resurfaced on Jan. 25when the commission launched probes into state aidgiven to airports located in France, Germany, and Swe-den.

As the in-depth investigation now begins, the com-mission indicated that its preliminary inquiries led it tobelieve that four airports—two in Germany and the oth-ers in France and Sweden—had benefited from regionalgovernment funding that infringe EU state aid rules.

‘‘Investments by public authorities into companiescarrying out economic activities are in line with EUstate aid rules when they are made on terms that a pri-vate player operating under market conditions wouldaccept,’’ the commission explained. ‘‘On the basis of theinformation at its disposal, the [c]ommission cannot ex-clude that the measures in favor of the four airports and

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their customer airlines involve state aid that gives theman unfair advantage vis a vis their competitors and isthus incompatible with the internal market.’’

Three of the four airports being investigated haveprovided aid to Ryanair, the EU’s leading low-cost air-line. In the 1990s, the commission launched an illegalstate aid case against a regional airport outside Belgiumand subsequently ruled that it had provided illegal sub-sidies to Ryanair in exchange for guarantees that itwould fly a certain number of passengers over 10 years.The European Court of Justice subsequently overturnedthe commission’s ruling.

Ryanair built its highly successful low-cost airlineservice in the EU by flying to and from small airports,most of which were little-used airports prior to entry byRyanair. Europe’s other national carriers have com-plained consistently to the commission that the agree-ments Ryanair has negotiated with small airports allowit to offer subsidized low prices.

Ryanair and other low-cost carriers counter thatlarge national airlines benefit from state subsidiesthrough subsidized rail and bus networks to large air-ports.

BY JOE KIRWIN

Regulated Industries

French Agency Favors RelianceOn Competition to Solve Distortions

P ARIS—The French Competition Authority hasurged commercial and technical measures to pre-vent local authorities from suffering distortions of

competition in their tenders for the installation of inte-grated high speed communications networks.

In opinion no. 12-A-2 of Jan. 17, the authority calledfor integrated operator suppliers to spell out the condi-tions under which they would use the public network asInternet service providers (ISPs), whichever operator ischosen to install the network. This information wouldbe transmitted to all candidates and could be a prereq-uisite for the bid.

On the technical side, the authority noted that AR-CEP, the telecoms regulator, should foster harmoniza-tion and involve the full participation of all operators tocater to the needs of the ISPs, which, in turn, shouldprovide all the necessary information for that to hap-pen.

The authority did not return to the question of themix between public and private sector, which it hadcovered in previous opinions, but it noted that co-investment can be positive in certain cases. In strength-ening the role of the public sector, the authority pin-pointed two main anticompetitive risks—the need toprovide incentives to the historic operator, as it is not inits interest to build a network that rivals their copper lo-cal loop, and to inform the public of tenders initiated bythe public sector where integrated operators benefitfrom a commercial and technical advantage.

Explaining its opinion, which was drawn up at the re-quest of the Senate Economics, Sustainable Develop-ment and Regional Development Committee, the au-thority said operators are not on an equal footing. Pureplayers, who serve the wholesale market through offer-ing access to public networks to Internet service provid-

ers (ISPs) are at a serious disadvantage against verti-cally integrated operators like Orange and SFR, whichact as ISPs and could use public networks that are outfor tender to serve end users.

Integrated operators have both commercial and tech-nical advantages. On the first score, ISPs can be cus-tomers of the public network if they win the tender toinstall and run it, while, on the second score, they canmake technical demands that may be legitimate inthemselves but in practice can appear to be the onlyones appropriate for winning the tender.

Describing its approach as pragmatic, the authoritymaintained that the law gives local authorities consider-able leeway in benefiting from state aids to subsidize in-tegrated projects in both profitable and unprofitable ar-eas, notably as services of general economic interest.But conditions for selecting and paying companies arestrict, it added.

BY BARBARA CASASSUS

Cartelization

Italian Authority Invokes StrategyOf Mediation to Resolve Alleged Abuse

R OME—Italy’s antitrust authority on Jan. 23 offi-cially requested price information on gasolineprices in Sicily from 11 companies, part of a new

strategy to use mediation to help resolve potential anti-competitive abuses.

The mediation attempt does not preclude a tradi-tional investigation into the suspected problem area,but the move is designed to make a costly and lengthyinvestigation unnecessary. The parties are not legallyrequired to provide the information requested of them,but it is to their advantage to do so because the media-tion process does not carry the possibility of fines.

The 11 companies include Italian energy giant EniSpA, France’s Total SA, U.S.-based ExxonMobil Corp.,and Royal Dutch Shell Plc. Sicily’s regional counselor,Gaetano Armao, has complained that the companies inquestion charge more for gasoline in Sicily than they doon the Italian mainland.

If a mediator determines the companies have com-mitted wrongdoing, and if the companies can correctthe problem quickly, no formal investigation will belaunched.

BY ERIC LYMAN

Dominance

French Authority Fines Mobile OperatorFor Failure to Comply with 2009 Decision

P ARIS—The French Competition Authority hasfined mobile telephone operator SRR, a subsidiaryof SFR, a2 million for failing to respect in full its

decision of 2009 that ordered it to end abusive ratescharged in the French overseas islands of La Reunionand Mayotte.

In decision no. 12-D-05 of Jan. 24, the authority saidthat the difference in rates charged for on net callswithin the SRR network and off net calls to other net-

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works during 2010 was 3 centimes per minute for voicecalls in La Reunion, whereas the difference in costs wasonly 0.33 centimes. About a third of SRR customers onthe island were affected.

SRR had respected the temporary injunction in theauthority’s initial decision no. 09-MC-02 of Sept. 16,2009 on text messages. The injunction to halt excessivedifferences, which created an artificial ‘‘club effect,’’took effect on Dec. 1 in La Reunion and Feb. 1, 2010 inMayotte, the authority noted.

Initially, the authority was responding to complaintslodged by the two other mobile operators on the islandsOrange and Outremer Telecom at a key moment when3G networks were being installed and smartphoneswere hitting the market.

BY BARBARA CASASSUS

In BriefGovernment Appoints Acting Chair of Telecom Agency

OTTAWA—The Canadian Radio-television and Tele-communications Commission on Jan. 25 announcedthat Leonard Katz has been appointed Acting Chairman

of the agency, pending the federal government’s ap-pointment of a new chairman. Katz, who has been theCRTC’s vice-chairman of telecommunications since2007, had spent 30 years in the private sector beforejoining the agency, including as president of DigimergeTechnologies and president of Rogers Business Solu-tions. Katz replaces Konrad von Finckenstein, whosemandate expired on Jan. 24. Appointed as CRTC Chair-man in January 2007, von Finckenstein had served asCompetition Commissioner between 1997 and 2003,where he was particularly active in the creation of theInternational Competition Network and serving as itsfounding chairman before his appointment as a justiceof the Federal Court of Canada.

EU Okays Joint Control of Global Vıa InversionesThree parties—OPTrust, of Canada, PGGM, of The

Netherlands, and Global Via Infraestructuras, ofSpain—may jointly control Global Via Inversiones, alsoof Spain. The European Commission granted clearanceon Jan. 25 after examining the proposed acquisition un-der the simplified merger review procedure. OpTrustoperates and manages a pension fund for the OntarioPublic Service Employees Union. PGGM is engaged inpension fund management in The Netherlands. GlobalVia Infraestructuras and Global Via Inversiones are in-volved in the business of construction and managementof infrastructure concessions.

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JournalO F F I C I A L A C T I O N S

SUPREME COURTDecision

No. 10-1259. U.S. v. Jones, U.S., 1/23/12.

Certiorari Denied

No. 10-1417. Fein, Such, Kahn & Shepard PC v. Allen,1/23/12.

No. 11-179. O’Rourke v. Palisades Acquisition XVI LLC,1/23/12

No. 11-483. Pullos v. Alliance Laundry Systems LLC,1/23/12.

No. 11-492. Law Offices of Mitchell N. Kay PC v.Lesher, 1/23/12.

C A L E N D A R O F E V E N T S

February 1-3

Antitrust International Cartel Workshop, presented by theABA Section of Antitrust Law, and sponsored by the In-ternational Bar Association, at the Fairmont Hotel Van-couver, in Vancouver, B.C. Topics will include the deci-sion to self-report and seek leniency in multiple juris-dictions: the company seeks markers in the UnitedStates, Korea, and Australia; beginning the cartel inves-tigation: seven jurisdictions devise their strategy;search warrants and dawn raids in various jurisdic-tions; the defense responds to the government investi-gation; roundtable discussion—lead cartel enforcersfrom emerging jurisdictions; conducting the internalinvestigation—legal, ethical, and practical issues facedby corporate counsel in dealing with corporate employ-ees; plaintiffs’ strategies for pursuing private damageclaims; making the decision—the general counsel, theboard, and outside counsel meet to decide whether toadmit the violation and cooperate or to defend againstthe government investigation; negotiating adisposition—U.S., EU, and Australia; enforcers round-table; preliminary negotiations to settle civil litigation;and a concluding roundtable: experts discuss the 10toughest issues in international cartel enforcement. Theprogram, to be co-chaired by D. Jarrett Arp, Scott D.Hammond, Jose Regzzini, and Gary R. Spratling, willinclude Jae Hong Ahn, Melanie Aitken, Diogo Andrade,Thomas Barnett, Kathleen Beasley, Marcus Bezzi, Rob-ert Bloch, Marcelo Calliari, Olavo Chinaglia, Philip Col-lins, Sarah Court, Kris Dekeyser, Alan Dial, MeganDixon, Jennifer Dixton, Linda Evans, Shigeyoshi Ezaki,

Vicien Cani Fernandez, Stephen Fishbein, James Grif-fin, Ayman Guirguis, Michiyo Hamada, Cholsoo Han,Marc Hansen, Ray Hartwell, Michael Hausfeld, KatieHellings, Roxann Henry, Randal Hughes, AimeeImundo, Susan Jones, Oliver Josie, Katherine Kay, Ste-phen Kinsella, Donald Klawiter, Michael Lazerwitz, D.Martin Low, Paul Malric-Smith, Amy Manning, PhilipMansfield, Carlos Mena-Labarthe, Elaine Metlin, FrankMontag, Elizabeth Morony, Kate Morrison, ThomasMueller, James Mutchnik, Tsutomu Nakato, ToshiyukiNambu, Hiroka Namura, Ali Nikpay, Michael O’Kane,Kenneth O’Rourke, John Pecman, Guy Pinsonnault,Sharis Pozen, Phillip Proger, Lauren Ravkind, BarbaraRosenberg, Francis Scarpulla, Bruce Simon, RichardSteuer, Bonny Sweeney, Robert Tarun, Mariana Ta-vares de Araujo, John Terzaken, Gerwin van Gerven,Eric van Ginderachter, Rein Wesseling, Charles Wright,Kimitoshi Yabuki, Hoil Yoon, Soohyun Yoon, andShengmin Zhi. Registration fee varies from $325 to$875.

Contact: Navigate to http://www.AmBar.org/ATCartel;e-mail to: [email protected]

February 16

Developments in Ethics for Antitrust Lawyers, a live webi-nar and teleconference sponsored the ABA Section ofAntitrust Law, Center for Professional Responsibilityand the ABA Center for Continuing Legal Education.Topics will include conflict traps for defense counsel inmultiple representation scenarios; the disclosure ofBrady material protected by the attorney-client privi-lege; advance client waivers; and tips for contactingcurrent and former employees of an adversary in anti-trust litigation. The faculty will include Robert A. Milne,Bruce Green, Niall Lynch, and John F. Terzaken III.Register fees will vary $75 to $195.

Contact: 800-285-2221, Monday - Friday 8:30 AM - 6:00PM Eastern event code: cet2det

March 28-30

60th Annual Antitrust Spring Meeting, sponsored by theABA Section of Antitrust Law, at the JW Marriott Hotel,in Washington, D.C. Topics will include pathways toleadership: getting more out of section membership;fundamentals—antitrust; fundamentals—consumerprotection; a get out of jail free card? advertising to chil-dren and the Roberts Court; update with the antitrustdivision front office; best practices for jury research inantitrust litigation; go low or go home! a problem?tangled WEB: distribution pricing in the internet age;21st century antitrust compliance: beyond the basics;debating the competitive benefits and the cost of MFNs;efficiencies in global mergers—what counts and where?final four: the winners and losers of consumer protec-tion; forging expert testimony to prevail; challenges fac-ing competitive analysis of intellectual property acqui-sitions; crashing the tide—the rise in merger litigation;

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C A L E N D A R O F E V E N T S

Continued from previous page

defining roles for CFPB, FTC, and states;fundamentals—antitrust economics; general counselroundtable on compliance; how much do we owe? inter-national mock case; ethics in privacy and social media;behavioral economics in antitrust and consumer protec-tion law; fashioning merger remedies among estab-lished and new agencies; FTC’s use of federal court forconsumer remedies; the antitrust-labor interface: notjust for pro athletes; there oughta be a law: regulationvs. self-regulation; two prices, same coin: price dis-crimination in mergers; antitrust compliance in the fi-nancial services industry; consummated mergerchallenges—the past in never dead; mock Lanham Acthearing: product tests substantiating claims; opting out:strategic considerations for antitrust litigants; privacyissues in the mobile world; surviving the E-Discoverytrenches; the intricacies and perils of global leniencyapplications; judicial activism in cartel cases: trend oraberration; merger mania-health care reforms on mar-kets; Section 2 litigation: is Aspen still viable? out of thepot and into the frying pan—when settlement agree-ments become antitrust violations; mock trial; do youhave the right?- procedural fairness internationally; hottopics; strategic use of patents for competitive advan-tage; agency update with the FTC bureau directors; an-titrust and the risk of biologics; hopscotching the pond:where should multi-national victims sue? pricing rem-edies and the three bears; the Supreme Court redirectsclass action defense; and enforcers’ roundtable. Theprogram, to be co-chaired by Deborah A. Garza andJohn E. Villafranco, will include Rosa Abrantes-Metz,Andrea Agathoklis Murino, Joaquin Almunia, NormanArmstrong, Jonathan Baker, Elizabeth Barrett, MichaelBaye, Kathleen Beasley, Rita Sinkfield Belin, Christo-pher Bellamy, William Berlin, B. Douglas Bernheim,Subrata Bhattacharjee, Adam Biegel, William Blech-man, Molly S. Boast, Stephen Bolerjack, JoachimBornkamm, Mark Botti, Rachel Brandenburger, LeahBrannon, Christi Braun, Logan Breed, Alex Brigham,Julie Brill, Patricia Brink, Erika Brown Lee, ArthurBurke, Michelle Burtis, Matthew Bye, Cristina Caffarra,Terry Calvani, Gil Calvillo, Angela Campbell, LisaMadelon Campbell , Matthew Cantor, Steven Cernak,Esther Chavez, Ashok Chawla, Ashok Chawla, VaniChetty, Judith Chevalier, Yee Wah Chin, TasneemChipty, Penny Clark, Ulrich Classen, Lewis Clayton,Christopher Cole, Ian Conner, Patricia Conners, TraciCoughlan, Susan Creighton, Franklin Darius Jr., ClaireDebney, Kris Dekeyser, Christine Delorme, JamesDonahue III, Alicia Downey, Michael Egge, Kenneth El-zinga, Miguel Estrada, John Facciola, Lesley Fair, Jo-seph Farrell, Carolyn Feeney, Richard Feinstein, Debo-rah Feinstein, John Feldman, Kathryn Fenton, DanielleFitzpatrick, Parker Folse, Kathleen Foote, Aryeh Fried-man, Joy Fuyuno, Deborah Garza, , Shimica Gaskins,Richard Gilbert, Haywood Gilliam Jr., Douglas Gins-burg, Kenneth Glazer, Edward Glynn, HenryGrabowski, John Graubert, Tracy Greer, ChristieGrymes, Meg Guerin-Calvert, Daniel Gustafson, Debo-rah Haas-Wilson, Scott Hammond, Scott Hammond,Michael Han, John Harkrider, Ray Hartwell, Robert

Hauberg, Andrew Heimert, Roxann Henry, RenataHesse, Paul Hewitt, Frank Hinman, Heather Hippsley,Christopher Hockett, Elinor Hoffmann, Vandy Howell,Robert Hubbard, William Isaacson, Mark Israel, Alex-ander Italianer, Jonathan Jacobson, Frederic Jenny,Megan Jones, Pamela Jones Harbour, Hanno Kaiser,Elai Katz, Gene Kimmelman, Bruce Kobayashi, WilliamKovacic, William Kovacic, Kimberly Kralowec, Eliza-beth Kraus, Susan Kupfer, Rick Kurnit, Cynthia Lag-dameo, Devin Laiho, Bernd Langeheine , FrederiekeLeeflang, Jon Leibowitz, Jeffrey Levee, Richard Lever-idge, Andrea Levine, Claudia Lewis-Eng, DahliaLitwick, Dionne Lomax, Sarah London, Chris Macavoy,William Macleod, Cecilio Madero Villarejo, DeborahMajoras, David Mallen, Amy Manning, Lynda Marshall,Anthony Maton , Shannon Mcclure, James Mckeown,Christine Meyer, Scott Meyer, Joseph Miller, RandallMiller, Charles Moore, Eric Morehead, Paula Morency,Thomas Morgan, Alan Morrison, M. Howard Morse,Catharine Moscatelli, Amy Mudge, Suzanne Munck,Timothy Muris, Joseph Murphy, Kevin Murphy, HideoNakajima, John Nannes, Saira Nayak, Sharon Nelles,Lynn Neuner, Bernard Nigro, Jr., Nicola Northway,Kevin O’Connor, Maureen Ohlhausen, Christopher Ol-sen, Leslie Overton, Leslie Overton, John Oxenham,Chul Pak, Janis Pappalardo, Louise Parent, BarringtonParker , Lydia Parnes, C. Lee Peeler, Lisa Phelan, An-drea Pincus, Dave Poddar, Mark Popofsky, SharisPozen, Edith Ramirez, Richard Raskin, Karen Redden,Martin Redish, Amanda Reeves, Matthew Reilly, Ama-deu Ribeiro, James Rill, Gary Roberts, J. Robert Robert-son, J. Thomas Rosch, Donald Rosenberg, Dana Rosen-feld , Michael Rowe, George Rozanski, Steven Salop,Martha Samuelson, Margaret Sanderson, ScottScheele, Jeffrey Schmidt, Anne Schneider, HartmutSchneider, Deena Schneider, Susan Schwab, EdwardSchwartz, Fiona Scott Morton, James Serota, Carl Sha-piro, Ramsey Shehadeh, Howard Shelanski, Mark Shel-ton, Laura Shores, Seth Silber, Craig Silliman, Ian Sim-mons, Joseph Simons, Alison Smith, David Smith, An-drew Smith, Julie Soloway, Laurence Sorkin, JoshuaSoven, Gerald Stein, Richard Steuer, Richard Steuer,Joseph Stiglitz, Maurice Stucke, KD (Kip) Sturgis,Kevin Sullivan, Kathleen Sullivan, Jerome Swindell,April Tabor, John Taladay, John Terzaken, PatrickThompson, James Tierney, Will Tom, Avishalom Tor,David Turetsky, Rebecca Tushnet, Peggy Twohig, AllanVan Fleet, Sarah Vance, Emilio Varanini, Christine Var-ney, Bo Vesterdorf, John Villafranco, David Vladeck,David Vladeck, Sven V lcker, Theodore Voorhees Jr. ,David Wales, Daniel Wall, Spencer Waller, James War-not, Joseph Wayland, David Weinburg, Philip Weiser,Hill Wellford, Ilana Westerman, Mark Whitener, Su-zanne Wilson, Marcus Woo, Joshua Wright, StephenWu, Mallun Yen, Carmine Zarlenga, Wentong Zheng,Johannes Zoettl, and Thomas Zych. Registration feesare govt/acad section member: $125; govt/acad non-section member: $225; paralegal member: $225.; non-section member: $950; non-profit section member:$125; non-profit non-section member: $225; law studentrate: free; section member rate: $650; DOJ non-member: $225; DOJ member: $125; FTC member: $125;and FTC non-member: $225.

Contact: On-line registration available at http://www.AmBar.org

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I N T E R N E T S O U R C E S

Listed below are the addresses of World Wide Web sites consultedby editors of BNA’s Antitrust & Trade Regulation Report and WWWsites for official government information.The links provided by BNA are to external Web sites maintained byfederal or state organizations in the U.S., foreign, or internationalgoverning bodies or nongovernmental organizations of interest toour subscribers. BNA has no control over their content, timeliness,or availability.

ABA Section of Antitrust Lawhttp://www.abanet.org/antitrust/

Antitrust Division of the Justice Departmenthttp://www.usdoj.gov/atr/

Australian Competition & Consumer Commissionhttp://www.accc.gov.au/

Canadian Competition Bureauhttp://competition.ic.gc.ca

Canadian Competition Tribunalhttp://www.ct-tc.gc.ca

Canadian Radio-television and TelecommunicationsCommissionhttp://www.crtc.gc.ca

European Commissionhttp://europa.eu.int/comm/competition/

Federal Trade Commissionhttp://www.ftc.gov

National Association of Attorneys Generalhttp://www.naag.org/

Organization for Economic Cooperation & Developmenthttp://www.oecd.org/home/

UK Office of Fair Tradinghttp://www.oft.gov.uk

The Federal Court Locatorhttp://www.law.emory.edu/FEDCTS/

Congressional Recordhttp://www.access.gpo.gov/su_docs/aces/aces150.html

Federal Registerhttp://www.access.gpo.gov/su_docs/aces/aces140.html

Federal Register Table of Contentshttp://www.access.gpo.gov/su_docs/aces/aces5407.html

Code of Federal Regulationshttp://www.access.gpo.gov/nara/cfr/index.html

GPO Access Databaseshttp://www.access.gpo.gov/su_docs/aces/aaces002.html

GPO Access Searching Tipshttp://www.ll.georgetown.edu/webpages/taylorw/gpotips.html

The Federal Web Locatorhttp://www.infoctr.edu/fwl/

University of Michigan Documents Center FederalGovernment Resources on the Webhttp://www.lib.umich.edu/govdocs/federal.html

White Househttp://www.whitehouse.gov

Thomashttp://thomas.loc.gov

U.S. House of Representativeshttp://www.house.gov

U.S. Senatehttp://www.senate.gov

U.S. Codehttp://uscode.house.gov/usc.htm

B N A P R O D U C T S

Antitrust & Trade Regulation Dailyhttp://www.bna.com/products/corplaw/atrd.htm

Antitrust & Trade Regulation Reporthttp://www.bna.com/products/corplaw/atrr.htm

ATRR Index-Summary updateshttp://www.bna.com/current/atr

BNA’s Corporate Counsel Weeklyhttp://www.bna.com/products/corplaw/index.html

BNA’s Patent Trademark & Copyright Journalhttp://www.bna.com/products/corplaw/index.html

Daily Report for Executivesread: http://www.bna.com/products/corplaw/index.html

B N A C O N TA C T S

BNA’s World Wide Web Home Pagehttp://www.bna.com

BNA Customer Relations, [email protected]

BNA PLUS, [email protected]

A ANTITRUST & TRADE REGULATION REPORT

Electronic ResourcesVOL. 102, NO. 2533 JANUARY 27, 2012

1-27-12 COPYRIGHT � 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ATRR ISSN 0003-6021