Congress is considering legislation that would restore the previous rule that minimum resale price agreements between manufacturers and retailers are illegal without proof of anticompetitive effects. This would overturn a 2007 Supreme Court decision. In January 2010, the House Judiciary Committee voted along party lines to approve a bill that would make minimum resale price agreements per se illegal again. Supporters argue this will benefit consumers by allowing lower prices, while opponents say it may have unintended consequences and the issue deserves more study under the current rule of reason standard. A similar bill is pending in the Senate.
Antitrust Policy: A Century of Economic and Legal ThinkingGus Agosto
This presentation follows the evolution of thinking about competition since the passage of the Sherman Act in 1890 as reflected by major antitrust decisions and research in industrial organization. It divide the U.S. antitrust experience into five periods and discuss each period's legal trends and economic thinking in three core areas of antitrust: cartels, cooperation, or other interactions among independent firms; abusive conduct by dominant firms; and mergers.
Antitrust Policy: A Century of Economic and Legal ThinkingGus Agosto
This presentation follows the evolution of thinking about competition since the passage of the Sherman Act in 1890 as reflected by major antitrust decisions and research in industrial organization. It divide the U.S. antitrust experience into five periods and discuss each period's legal trends and economic thinking in three core areas of antitrust: cartels, cooperation, or other interactions among independent firms; abusive conduct by dominant firms; and mergers.
The director of the Serious Fraud O"ce (SFO) and the Solicitor General, Edward Garnier QC, have recently made no secret of the fact that they consider the criminal justice system to be incapable of dealing with corporate prosecutions in a way that refflects commercial realities. The blunt impact of a prosecution of a company has the impact of damaging innocent parties including employees, shareholders and creditors. Garnier cited the cautionary example of the ill-effects of prosecution caused to Arthur Andersen, eventually acquitted on charges of obstruction of justice by the US Supreme Court, many years after the allegations had destroyed the company. US prosecutors have a tool at their disposal, the deferred prosecution agreement (DPA), which is being touted as a viable alternative to the present options of either prosecution or civil recovery.
Ashley R. Dobbs, Bean, Kinney & Korman, focused on the common advertising mistakes that can get you in trouble with the law. She gave insight on how to effectively advertise without sacrificing legality.
The presentation addressed five common advertising mistakes:
• Not telling the truth: Inadvertently creating deceptive or misleading messages, or omitting necessary material
• Not carefully comparing amongst competitors: Being liable for trademark infringement if done incorrectly
• Misusing contests and sweepstakes: Laws in all 50 states regulate these practices
• Misusing children's data or medical data: Collecting and targeting the proper data when advertising to kids
• Spamming: Statutory damages await those who improperly conduct email advertising campaigns
Recorded on Monday, March 19, 2012 - This webinar, presented by Margaret Capes, Legal Education Coordinator of Community Law School (Sarnia-Lambton) Inc., looks at common scams such as phishing, advance fee frauds, prize and lottery scams, the grandparent scam, and cheque overpayment scams. The webinar reviews the risks of purchasing goods or services online. It covers plans of action to counter scamming activity involving reports to police, banks, credit card companies, the Canadian Anti Fraud Centre, and the Ministry of Consumer Services. Finally, it discusses how to launch a civil claim in Small Claims or Superior Court including the pros and cons of taking such a step against "hard to trace" perpetrators. Those interested in expanding their knowledge of this topic area may find the Identity Theft webinar useful.
To watch an archived version of this webinar visit:
http://yourlegalrights.on.ca/webinar/watch-your-step-internet
http://finishedexams.com/LAW_421_Final_Exam.php
Immediate access to solutions for ENTIRE COURSES, FINAL EXAMS and HOMEWORKS “RATED A+" - Without Registration!
The US government has begun cracking down on American companies relocating overseas for tax purposes in a move known as corporate tax inversion. The most recent high profile case of tax inversion is that of US fast food giant Burger King buying Canadian donut company Tim Horton’s. Burger King plans to relocate all of its head office divisions, including taxes and finances, north of the border. This kind of tax inversion works when a US based business merges with or is acquired by a foreign company based in a country with a lower tax rate.
The Obama administration has not commented specifically on the Burger King case. However, it has outlined new rules to stop U.S. companies from doing exactly what Burger King has done, in order to avoid paying taxes in the United States. The Treasury Department has outlined new rules which will make these corporate inversions less attractive to US companies wishing to move their tax operations overseas. The new rules will ban techniques, no matter how creative , that companies often use to try to cut their tax bills. Tighter regulations are intended to make it harder for US companies to be ‘foreign’ owned in the first place, thereby ensuring that US companies are owned by US operators and paying taxes in the U.S.
The U.S. Treasury Secretary, Jacob Lew, told Canadian news site CBC that the aim of these new regulations is to put the brakes on the amount of companies that are able to escape paying taxes in the USA. Subsequently the idea of moving out of the country will no longer be a more lucrative option for those businesses. Burger King, after its high profile takeover of Tim Horton’s, has refuted claims that their takeover was purely for tax purposes, and has pointed to the tax history of both companies, stating that they paid virtually identical tax rates in the last fiscal year.
President Obama has praised the Treasury for its plans, and has spoken of his desire to close any loopholes that companies find to avoid paying their taxes in the U.S. He is also supporting a possible further tax reform which would reduce the corporate tax rate, close any other loopholes that businesses find, and make tax codes and rates simpler for U.S. based corporations.
Burger King and Tim Horton’s, however, do not expect these new rules to affect their merger, which is moving ahead at full speed.
PELTON PowerPoint: ABA Cyberspace Institute 2011-01-28erikpelton
"Trademark Strategies for 2012" Presentation to the American Bar Association's Cyberspace Institute in Austin Texas on January 28, 2011. The presentation explores recent changes to the practice of trademark law, and what the future might hold for trademark owners and attorneys who advise them.
This presentation discusses antitrust issues that real-estate professionals should consider. Further detail is available at http://www.theantitrustattorney.com/2014/01/28/five-antitrust-concerns-real-estate-professionals/
Recorded on Monday, April 16, 2012. This webinar, presented by Margaret Capes, Legal Education Coordinator of Community Law School (Sarnia-Lambton) Inc., looks at telephone scams and other consumer problems with phones. It reviews the role of the Competition Bureau, the Ministry of Consumer Services, the Canadian Radio-television and Telecommunications Commission (CRTC), and the Canadian Anti Fraud Centre in combatting telephone trickery. Examples of recent versions of these scams will be reviewed so attendees will have an idea of what to watch for in their everyday lives.
To watch an archived version visit:
http://yourlegalrights.on.ca/webinar/Fighting-Telephone-Trickery-Using-Consumer-Protection-Laws
The director of the Serious Fraud O"ce (SFO) and the Solicitor General, Edward Garnier QC, have recently made no secret of the fact that they consider the criminal justice system to be incapable of dealing with corporate prosecutions in a way that refflects commercial realities. The blunt impact of a prosecution of a company has the impact of damaging innocent parties including employees, shareholders and creditors. Garnier cited the cautionary example of the ill-effects of prosecution caused to Arthur Andersen, eventually acquitted on charges of obstruction of justice by the US Supreme Court, many years after the allegations had destroyed the company. US prosecutors have a tool at their disposal, the deferred prosecution agreement (DPA), which is being touted as a viable alternative to the present options of either prosecution or civil recovery.
Ashley R. Dobbs, Bean, Kinney & Korman, focused on the common advertising mistakes that can get you in trouble with the law. She gave insight on how to effectively advertise without sacrificing legality.
The presentation addressed five common advertising mistakes:
• Not telling the truth: Inadvertently creating deceptive or misleading messages, or omitting necessary material
• Not carefully comparing amongst competitors: Being liable for trademark infringement if done incorrectly
• Misusing contests and sweepstakes: Laws in all 50 states regulate these practices
• Misusing children's data or medical data: Collecting and targeting the proper data when advertising to kids
• Spamming: Statutory damages await those who improperly conduct email advertising campaigns
Recorded on Monday, March 19, 2012 - This webinar, presented by Margaret Capes, Legal Education Coordinator of Community Law School (Sarnia-Lambton) Inc., looks at common scams such as phishing, advance fee frauds, prize and lottery scams, the grandparent scam, and cheque overpayment scams. The webinar reviews the risks of purchasing goods or services online. It covers plans of action to counter scamming activity involving reports to police, banks, credit card companies, the Canadian Anti Fraud Centre, and the Ministry of Consumer Services. Finally, it discusses how to launch a civil claim in Small Claims or Superior Court including the pros and cons of taking such a step against "hard to trace" perpetrators. Those interested in expanding their knowledge of this topic area may find the Identity Theft webinar useful.
To watch an archived version of this webinar visit:
http://yourlegalrights.on.ca/webinar/watch-your-step-internet
http://finishedexams.com/LAW_421_Final_Exam.php
Immediate access to solutions for ENTIRE COURSES, FINAL EXAMS and HOMEWORKS “RATED A+" - Without Registration!
The US government has begun cracking down on American companies relocating overseas for tax purposes in a move known as corporate tax inversion. The most recent high profile case of tax inversion is that of US fast food giant Burger King buying Canadian donut company Tim Horton’s. Burger King plans to relocate all of its head office divisions, including taxes and finances, north of the border. This kind of tax inversion works when a US based business merges with or is acquired by a foreign company based in a country with a lower tax rate.
The Obama administration has not commented specifically on the Burger King case. However, it has outlined new rules to stop U.S. companies from doing exactly what Burger King has done, in order to avoid paying taxes in the United States. The Treasury Department has outlined new rules which will make these corporate inversions less attractive to US companies wishing to move their tax operations overseas. The new rules will ban techniques, no matter how creative , that companies often use to try to cut their tax bills. Tighter regulations are intended to make it harder for US companies to be ‘foreign’ owned in the first place, thereby ensuring that US companies are owned by US operators and paying taxes in the U.S.
The U.S. Treasury Secretary, Jacob Lew, told Canadian news site CBC that the aim of these new regulations is to put the brakes on the amount of companies that are able to escape paying taxes in the USA. Subsequently the idea of moving out of the country will no longer be a more lucrative option for those businesses. Burger King, after its high profile takeover of Tim Horton’s, has refuted claims that their takeover was purely for tax purposes, and has pointed to the tax history of both companies, stating that they paid virtually identical tax rates in the last fiscal year.
President Obama has praised the Treasury for its plans, and has spoken of his desire to close any loopholes that companies find to avoid paying their taxes in the U.S. He is also supporting a possible further tax reform which would reduce the corporate tax rate, close any other loopholes that businesses find, and make tax codes and rates simpler for U.S. based corporations.
Burger King and Tim Horton’s, however, do not expect these new rules to affect their merger, which is moving ahead at full speed.
PELTON PowerPoint: ABA Cyberspace Institute 2011-01-28erikpelton
"Trademark Strategies for 2012" Presentation to the American Bar Association's Cyberspace Institute in Austin Texas on January 28, 2011. The presentation explores recent changes to the practice of trademark law, and what the future might hold for trademark owners and attorneys who advise them.
This presentation discusses antitrust issues that real-estate professionals should consider. Further detail is available at http://www.theantitrustattorney.com/2014/01/28/five-antitrust-concerns-real-estate-professionals/
Recorded on Monday, April 16, 2012. This webinar, presented by Margaret Capes, Legal Education Coordinator of Community Law School (Sarnia-Lambton) Inc., looks at telephone scams and other consumer problems with phones. It reviews the role of the Competition Bureau, the Ministry of Consumer Services, the Canadian Radio-television and Telecommunications Commission (CRTC), and the Canadian Anti Fraud Centre in combatting telephone trickery. Examples of recent versions of these scams will be reviewed so attendees will have an idea of what to watch for in their everyday lives.
To watch an archived version visit:
http://yourlegalrights.on.ca/webinar/Fighting-Telephone-Trickery-Using-Consumer-Protection-Laws
Stephen Ware - Consumer and Collection Arbitration Law 2022 .pptxStephen Ware
Consumer and Collection Arbitration by KU Law Professor Stephen Ware, 2022. Recent developments in statutory and case law. Historical and political context.
Resource Case Brief Cipollone v. Liggett Group, Inc., et al. in C.docxdebishakespeare
Resource: Case Brief Cipollone v. Liggett Group, Inc., et al. in Ch. 2, section 2-6, “Commerce Powers,” of the text.
Write a 700- to 1,050-word paper in which you define the functions and role of law in business and society. Discuss the functions and role of law in your past or present job or industry. Properly cite at least two references from your reading.
Format your paper consistent with APA guidelines.
Click the Assignment Files tab to submit your assignment.
CASE 2.1 Cipollone v. Liggett Group, Inc., et al., 505 U.S. 504 (1992)
FACT SUMMARY Cipollone brought suit against
Liggett for violation of several New Jersey consumer
protection statutes alleging that Liggett (and other
cigarette manufacturers) were liable for his mother’s
death because they engaged in a course of conduct
including false advertising, fraudulently misrepresenting
the hazards of smoking, and conspiracy to deprive
the public of medical and scientific information about
smoking. Liggett urged the court to dismiss the state
law claims contending that the claims related to the
manufacturer’s advertising and promotional activities
were preempted by twCASE 2.1 Cipollone v. Liggett Group, Inc., et al., 505 U.S. 504 (1992)
FACT SUMMARY Cipollone brought suit against
Liggett for violation of several New Jersey consumer
protection statutes alleging that Liggett (and other
cigarette manufacturers) were liable for his mother’s
death because they engaged in a course of conduct
including false advertising, fraudulently misrepresenting
the hazards of smoking, and conspiracy to deprive
the public of medical and scientific information about
smoking. Liggett urged the court to dismiss the state
law claims contending that the claims related to the
manufacturer’s advertising and promotional activities
were preempted by two federal laws: (1) the Federal
Cigarette Labeling and Advertising Act of 1965, and
(2) the Public Health Cigarette Smoking Act of 1969.
SYNOPSIS OF DECISION AND OPINION The
U.S. Supreme Court ruled against Cipollone, holding
that his claims relying on state law were preempted by
federal law. The Court cited both the text of the statute
and the legislative history in concluding that Congress’s
intent in enactment of the laws was to preempt
state laws regulating the advertising and promotion of
tobacco products. Because Congress chose specifically
to regulate a certain type of advertising (tobacco), federal
law is supreme to any state law that attempts to
regulate that same category of advertising.
WORDS OF THE COURT: Preemption “Article VI of
the Constitution provides that the laws of the United
States shall be the supreme Law of the Land. Thus,
[. . .] it has been settled that state law that conflicts
with federal law is ‘without effect.’ [. . .] Accordingly,
‘the purpose of Congress is the ultimate touchstone’
of pre-emption analysis. Congress’s intent may be
‘explicitly stated in the statute’s language or implicitly
contained in its structure and purpose.’ In ...
Full text of the Supreme Court's 6-3 Obamacare rulingDaniel Roth
Chief Justice John Roberts: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.. IIf at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”
Scalia: "“We should start calling this law ‘SCOTUScare"
Article, Limitations On The FTCs Investigation Of The Business Of Insurance, ...
A Window Into Washington Antitrust Blog Article April 2010
1. Antitrust Law Blog
Posted at 2:32 PM on April 28, 2010 by Sheppard Mullin
A Window into Washington: Proposed Legislation to Prohibit Resale Price Maintenance Agreements
Congress has taken preliminary steps to adopt legislation that would restore the rule that minimum resale price agreements between
manufacturers and retailers, distributors or wholesalers, violate the Sherman Act without requiring proof of their anticompetitive
effects.
More than two years ago, the Supreme Court overturned the 96-year-old rule established in a prior Supreme Court decision, Dr.
Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), that made minimum resale price agreements ("RPM
agreements," also called "vertical price-fixing") per se illegal under the Sherman Act, in Leegin Creative Leather Products, Inc. v.
PSKS, Inc., 127 S. Ct. 2705 (2007). In Leegin, the Court held that RPM agreements should be evaluated under the rule of reason, a
standard requiring that proof the agreement has unreasonably restrained competition. On January 13, 2010, the House Judiciary
Committee met and voted on whether to adopt H.R. 3190, the "Discount Pricing Consumer Protection Act of 2009." H.R. 3190
would overturn the ruling in Leegin and restore the per se rule of illegality with respect to RPM agreements.
Report on Hearing on H.R. 3190
The Committee voted along party lines, 15-14, to adopt H.R. 3190. Representative Hank Johnson (D., Ga) provided a brief
explanation of the bill. He described the legal standard for challenging RPM agreements adopted in Leegin as more "expensive,"
"fact intensive" and "less favorable to plaintiffs." According to Representative Johnson, an increasing number of manufacturers have
implemented minimum retail prices in the two years since Leegin was decided, which in turn means retailers cannot offer lower
prices of the manufacturers' goods to consumers. Representative Johnson further maintained (as Justice Breyer argued in his
dissenting opinion in Leegin) that even if only ten percent of manufactures implement RPM agreements, the average annual
shopping bill for a family of four could increase by between $750 and $1000. H.R. 3190 would simply "restore the state of play that
existed in the market for 96 years prior to Leegin." Manufacturers' suggested minimum retail price policies would remain
permissible, and companies that wholly own their franchises can set minimum prices without violating the law. Representative
Johnson noted that 41 out of 50 state attorneys general as well as the National Consumers League, American Antitrust Institute, the
Consumers Union, U.S. PIRG and online retailers such as Amazon.com and eBay endorse the bill. The Committee's clerk entered
these third parties' letters into the record.
Representative Lamar Smith (R., Tx) also commented on the bill. He observed that over time, the Supreme Court has moved away
from per se standards of illegality to a rule of reason standard. The rule of reason allows courts to conduct "the kind of detailed fact-
finding necessary to determine the actual harm and benefits to consumers of resale price maintenance." Before legislating a return to
the per se standard, Representative Smith urged the Committee and the courts to "take a hard look" at the facts supporting RPM.
Congress, he argued, should only repeal the Supreme Court's ruling if it is "absolutely clear that the practice in question is never
procompetitive," and two years of rule of reason analysis is not sufficient to establish a record and justify a return to the old rule. He
urged the Committee not to adopt decisions that have unintended consequences. As an example, Representative Smith observed that
while it is clear that the sponsor of H.R. 3190 did not intend to overrule Copperweld Corp. v. Independence Tube Corp., a Supreme
Court decision which holds that a parent corporation and its wholly owned subsidiary cannot conspire under the Sherman Act, the
text of H.R. 3190 could be interpreted to subject agreements between parent corporations and their wholly-owned subsidiaries to the
Sherman Act. Representative Johnson disagreed with this example, stating that a parent and its wholly owned subsidiary are, for the
purposes of the Sherman Act, part of the same entity. The bill is sufficiently clear, he maintained, because it employs the term
"agreement” which has been interpreted under the antitrust laws "for decades" as requiring two or more separate entities.
Representative Melvin Watt (D., N.C.) also spoke during the meeting. He referred to a law review article analyzing how the rule of
reason shifts the burden of proof and how the courts have handled such cases. (M.A. Carrier, The Rule of Reason: An Empirical
Update for the 21st Century, GEO. MASON L. REV., 827 (2009)) The article analyzed antitrust cases from 1977-1999 in which the
rule of reason was the applicable standard, and found that, of those cases, only four percent of the claims prevailed under the rule of
reason standard. Mr. Carrier conducted a similar analysis for antitrust cases decided between February 2, 1999 and May 5, 2009 and
found that in the more recent period, only two percent of the cases survived a rule of reason analysis. Thus, Representative Watt
concluded, "the application of the rule of reason has not been nearly as reasonable as the articulation of the rule of reason," and H.R.
3190 is "not only appropriate but necessary if the consumer is to be protected." Rep. Darrell Issa (R., Calif.) proposed an
amendment to H.R. 3190 that would render the retail pricing practices of any person with market power—even manufacturers who
sell exclusively through their own retail outlets—subject to review. A majority of the Committee voted to reject this amendment.
2. Report on S. 148, Discount Pricing Consumer Protection Act
In January 2009, a bill nearly identical to H.R. 3190 was introduced in the Senate. S. 148, the Discount Pricing Consumer Protection
Bill, is sponsored by Senator Harry Kohl (D., Wisc.). The bill was referred to the Senate's Committee on the Judiciary and further
review is pending.
While it is not clear whether Congress will eventually pass some form of Leegin repealer legislation, there is significant support for
the bills. Even if the legislation is passed, it should not impact the legality of unilateral minimum resale price policies where the
manufacturer preannounces, as a term and condition of dealing, the minimum resale price at which its products may be resold. Such
policies have long been permitted because, to the extent they are implemented and enforced without creating an agreement, they do
not satisfy the concerted action requirement of Section 1 of the Sherman Act.
Authored By:
Heather M. Cooper
(213) 617-5457
HCooper@sheppardmullin.com
and
Jennifer M. Driscoll-Chippendale
(202) 469-4921
JDriscoll-Chippendale@sheppardmullin.com
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