Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Jan 14, 2015)

This Antitrust Law Daily feature presents a chart highlighting the decisions, arguments, briefs, and petitions on antitrust and trade regulation issues before the October 2014 Term of the U.S. Supreme Court.

To date, there are 12 antitrust and trade regulation cases docketed for the 2014 term, and the Court has agreed to hear three of them, relating to antitrust. Ten other cases, involving acquisitions and mergers, advertising, antitrust, consumer protection, and the Racketeer Influenced and Corrupt Organizations Act were denied certiorari.

The Supreme Court heard oral arguments in Oneok, Inc. v. Learjet, Inc. on January 12, regarding whether the Natural Gas Act (NGA) preempts state law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions. Oneok and the U.S. Solicitor General argued that this is an area the Supreme Court has determined to be field preempted—that when the Federal Energy Regulatory Commission (FERC) acts in this area, it has exclusive jurisdiction. Learjet and the Kansas Solicitor General disagreed, arguing that: (1) the analysis should apply conflict preemption, not field preemption; (2) state regulation in this case is retail, which falls squarely within Section 1(b) reservation of power in the NGA; and (3) the claims necessarily fall outside any field FERC could possibly regulate, because FERC has no power over antitrust.

In ProMedica Health System, Inc. v. FTC, an Ohio-based hospital operator has petitioned the Supreme Court to review a decision of the U.S. Court of Appeals in Cincinnati concluding that the company’s consummated acquisition of St. Luke’s Hospital in Toledo would adversely affect competition in violation of Section 7 of the Clayton Act. The appellate court upheld an FTC opinion and order requiring ProMedica to unwind the 2010 hospital acquisition. In its petition, ProMedica raises three questions for review: (1) whether the FTC, in defining the relevant market for merger analysis, is permitted to ignore the group of services that market participants actually negotiate for and purchase as a package, and instead define the product market based on supply-side considerations, thus allowing the FTC to gerrymander the product market to artificially inflate market shares; (2) whether a presumption of anticompetitive harm based on market-share statistics should apply where the FTC relies exclusively on a unilateral effects theory in challenging the merger; and (3) whether the FTC can rely on market-share statistics to preclude consideration of a merger target’s financial weakness to rebut a presumption of harm based on market-share statistics in a unilateral-effects case.

In United National Maintenance, Inc. v. San Diego Convention Center, Inc., trade show cleaning services vendor United National Maintenance, Inc. (UNM) was denied review of a decision by the U.S. Court of Appeals in San Francisco, finding that a lower court properly disposed of UNM’s antitrust claim against San Diego Convention Center, Inc. The Supreme Court was asked to interpret the state action immunity doctrine in the context of a private action. Specifically, UNM asked whether: (1) the clear articulation test is satisfied where the California legislature authorized San Diego to create a commission that would manage the use of the convention center and (2) whether the convention center commission was a private actor that would satisfy the active supervision test because its board of directors included business leaders and because it competed in the San Diego market for trade show cleaning services.

In Infanti v. Scharpf, Vittorio Infanti—the former President and CEO of a chair manufacturing company—was denied U.S. Supreme Court review of a decision by the U.S. Court of Appeals in New York, which held that Infanti lacked standing to bring a civil Racketeer Influenced and Corrupt Organizations Act suit. In his petition, Infanti asked whether he suffered an injury to “business or property” by reason of a violation of RICO, such that he would have standing to bring suit under 18 U.S.C. §1964(c).

For details about this and other petitions and cases pending before the Supreme Court, please consult the chart of antitrust and trade regulation cases awaiting decision in the 2014 term. Issued opinions, granted petitions, and pending petitions are listed separately, along with a summary of the questions presented and the current status of each case.

News: Antitrust AcquisitionsMergers Advertising ConsumerProtection RICO StateUnfairTradePractices