Editor’s Note

Thomas N. Dahdouh¹

Federal Trade Commission

San Francisco

Four Roundtables and a Symposium To Boot!

This issue offers four Roundtables growing out of discussions from the October 2013 Golden State Antitrust Institute, the premiere West Coast antitrust event. We also provide a Symposium of articles on Noerr, First Amendment and state action defenses, offering up the perennial question: Do these defenses and immunities protect precious rights or do they serve as a last refuge for monopolists? Finally, three articles round out this comprehensive issue of Competition.

The Roundtables canvass the major antitrust and unfair competition litigations of 2013:

• The year 2013 saw two major price-fixing trials: Vitamin C, litigated in the Eastern District of New York, and Urethanes, held in federal district court in Kansas City. Both trials resulted in a verdict for plaintiffs. Heather Tewksbury, a criminal antitrust trial attorney in the DOJ’s San Francisco Field Office who has recently been named a partner at Wilmer, Hale, leads the discussion. Trial counsel from both matters dissect how the trials played out. William A. Isaacson and Daniel S. Mason duke out Vitamin C, while Joseph Goldberg and Michael Tubach hold forth on lessons learned from Urethanes.

• Following on the heels of the DOJ’s successful criminal prosecutions against key participants in the LCD price-fixing matter, this past year saw two major civil trials brought against some of those same participants. First was a class action by direct purchasers against Toshiba, resulting in a $87 million dollar verdict. Second was an action initiated by direct purchaser opt-out Best Buy. That action, somewhat contradictorily, resulted in no finding of liability against Toshiba. Barkley Court Reporters was able to capture live the discussion at the Golden State Antitrust Institute, allowing us to reprint it verbatim. In that discussion, Aton Arbisser moderates a stellar panel of trial counsel Bruce Simon and Robert Freitas, and jury consultant Howard Varinsky.

• Next, Judges Berzon, Phillips, Wiley and Karnow tackle the all-important question of class certification in civil antitrust litigation. This panel is moderated by Penelope Preovolos, with able editing assistance from Dominique-Chantale Alepin.

• Finally, we have a discussion about the McAdams v. Monier unfair competition trial in California state court. For this discussion, trial counsel Jeffrey Cereghino and William Stern discuss the "roller-coaster" nature of that trial. The judge found for the defense, but only after the jury came in with a verdict for the class plaintiffs. Kimberly Kralowec moderated this discussion, with help from editor Asim Bhansali.

The Symposium focuses on Noerr, First Amendment and state action. Two articles, one by Chris O’Connell and a second by Stuart N. Senator and Gregory M. Sergi, provide respectively plaintiff and defense perspectives to the overall evolution of Noerr. Next, Richard Epstein, Eugene Volokh and Paul L. Gibson offer contrasting views on the relevance of the First Amendment to government investigations of monopolistic practices by Google and others in the world of the Internet. David L. Meyer and Fabien Thayamballi wrestle with recent FTC action in the area of standard essential patents. In these matters, the FTC has used its "standalone" Section 5 "unfair method of competition" authority to enforce promises made by holders of patents in standard-setting processes to license on a fair and reasonable, non-discriminatory ("FRAND") basis to potential licensees who want to develop products based on the standard. The FTC has taken the position that threatening to seek an injunction to bar licensees’ products breaks the FRAND promise and could chill standard-setting and the procompetitive benefits of those processes. The question Meyer and Thayamballi wrestle with is whether Noerr and/or the First Amendment protect a patentholder’s ability to break its FRAND promise and seek an injunction against licensees. Finally, Jarod Bona and Luke Wake take on the state action defense in light of recent Supreme Court action.

This issue also has three articles on other important topics. First is an article by Ara Jabachourian on the proper standard for summary judgment in collusion cases. Second is an article on an area of growing importance — privacy and particularly data security. Kathryn Russo takes a look at whether the FTC Act and California’s UCL statute plays a role when a company fails to maintain consumers’ private financial information properly.

Lastly, we reprint Tom Papageorge and Tom Greene’s wonderful outline from the Golden State Institute updating practitioners on California antitrust and unfair competition law developments as well as state and federal procedural changes. Their presentations are always well-received, and this outline serves as a helpful compendium of new cases and developments.

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Notes:

^1. The views expressed here are my own and do not necessarily represent the views of the Federal Trade Commission or any Commissioner.