Morgan Lewis on Competition
November 2004

In this Issue:

• Practice Alert! Know Your Obligations to Preserve Electronic Data:
  There is a growing body of case law concerning the obligations of counsel to protect discoverable information with which antitrust practitioners and clients should be familiar.
• Still Searching for the Meaning of the FTAIA: Federal District Court Sustains Sherman Act Claim by Foreign Distributor Suffering Injury in India:
  If the immediate reaction of one lower court to the Supreme Court's ruling this past June in F. Hoffman-La Roche, Ltd. v. Empagran S.A. is a barometer of Empagran decision’s legacy, defendants may continue to have difficulties eliminating at the pleading stage even those antitrust claims that have only attenuated effects on United States commerce.
• Alleged Shipping Cartel Steams Toward Arbitration:
  The United States Court of Appeals for the Second Circuit recently compelled victims of a criminal horizontal price fixing conspiracy to arbitrate their civil damages claims. The decision – if the United States Supreme Court does not grant certiorari and reverse – protects the members of a criminal cartel from the jury system. The decision goes much further than simply enforcing an arbitral clause between two contracting parties. Instead, it prevents a victim of a horizontal conspiracy from proceeding in court against co-conspirators with whom it had no arbitral agreement whatsoever.
• An October Surprise?: DOJ Issues Policy Guide on Merger Remedies:
  On October 21, 2004, the Antitrust Division of the Department of Justice released its first-ever written guidelines concerning the Division's approach to remedies in merger transactions. Although new to print, the Antitrust Division Policy Guide for Merger Remedies does not announce a stark departure from existing policy. Rather, the Policy Guide largely codifies long-standing practices, while providing the business community and the antitrust bar with a clearer understanding of the Division's merger review processes.
• Articles & Speaking Engagements

For the full story, please view the PDF.