Antitrust Law Daily Wrap Up, SUPREME COURT DOCKET: Recent decisions, cases, and petitions pending High Court review, (Sep 8, 2016)

By Greg Hammond, J.D.

This Antitrust Law Daily feature presents a chart highlighting the decisions, arguments, briefs, and petitions on antitrust and trade regulation issues before the 2016 Term of the U.S. Supreme Court.

Currently, there are two antitrust cases that have been granted review and were consolidated—Visa Inc. v. Osborn (Dkt. 15-961) and Visa Inc. v. Stoumbos (Dkt. 15-962). There are a total of 15 other antitrust and trade regulation cases that are awaiting a determination on whether the Court will grant review or not.

Most recently, a group of consumers has challenged a decision by the U.S. Court of Appeals in San Francisco that affirmed dismissal of the consumers’ action, under Section 7 of the Clayton Act, seeking to enjoin the acquisition of Grupo Modelo S.A.B. de C.V. by Anheuser-Busch InBev SA/NV. The appellate court had concluded that the consumers failed to state a claim that Anheuser-Busch’s acquisition of Modelo violated Section 7 because, under the revised terms of the challenged transaction, Anheuser-Busch’s market share or concentration in the U.S. beer market would not increase (Edstrom v. Anheuser-Busch InBev SA/NV, Dkt. 16-270).

The consumers argue in their petition that the appellate court’s decision overlooked and conflicted with the Supreme Court’s holding in U.S. v. Falstaff Brewing Corp., 410 U.S. 526 (1973), which purportedly requires consideration of whether an acquisition eliminated a potential competitor exerting beneficial competitive influence on the market.

The petition raised two questions: (1) Whether § 7 of the Clayton Act, 15 U.S.C. § 18, which prohibits acquisitions that may "substantially…lessen competition, or tend to create a monopoly" and the standards announced by this Court in U.S. v. Falstaff Brewing Corp., 410 U.S. 526 (1973) require separate analysis of a transaction’s elimination of an actual and potential competitor exercising present beneficial competitive influence on the market?; and (2) Whether § 7 of the Clayton Act requires an increase in concentration in order to state a claim and avoid dismissal under Fed. R. Civ. P. 12(b)(6)?

For details about these and other petitions and cases pending before the Supreme Court, please consult the chart of antitrust and trade regulation cases awaiting decision in the 2016 term. Issued opinions, granted petitions, pending petitions, and denied petitions are listed separately, along with a summary of the questions presented and the current status of each case.

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