Morgan Lewis on Competition
October 2005

In this Issue:

• Appeals Court Decision in Three Tenors Case Leaves PolyGram Singing the Blues:
  The D.C. Circuit Court of Appeals upheld the Federal Trade Commission’s decision that PolyGram N.V. and its joint venture partner, Warner Communications, Inc., violated the antitrust laws when they agreed to curtail marketing Three Tenors albums in an effort to promote sales of a new, jointly marketed Three Tenors album.
• Europe's Court of First Instance Upholds European Commission Merger Decision:
  On September 21, 2005, the Court of First Instance (“CFI”), the European Union’s second-highest court, upheld the European Commission’s decision to block a proposed joint acquisition of Gás de Portugal (“GDP”) by the Portuguese incumbent electricity company, Energias de Portugal (“EDP”), and an Italian energy company, Eni SpA.
• Supreme Court to Consider Joint Venture Standards in Dagher v. Shell Oil Co.:
  Are pricing decisions by economically integrated joint ventures per se illegal? The Supreme Court will consider that question this term in Dagher v. Shell Oil Co.
• MERGER WATCH: Handing Out "Blank Checks" at the Department of Justice? Unique Agreement Allows Merging Parties to Close Pending Further Investigation and Subject to Broad Remedy:
  In a little-noticed action earlier this year, the Department of Justice (DOJ) revived an interesting approach to resolving concerns arising from proposed mergers. Practitioners have likened this seldom-used procedure to “writing a blank check.”
• Recent and Upcoming Events
• Morgan Lewis Partner Donald C. Klawiter Named Chair of the Section of Antitrust Law of the ABA:
  Donald C. Klawiter, a Washington, D.C.–based partner in the Antitrust Practice of Morgan Lewis, was elected Chair of the Section of Antitrust Law of the American Bar Association. He became chair for a one-year term at the conclusion of the ABA’s Annual Meeting on August 9, 2005.
• Chief Justice John Roberts on Antitrust:
  In the Senate Judiciary Committee hearings held September 12–14 regarding U.S. Chief Justice Nominee John Roberts, few Senators spent time exploring antitrust issues with the nominee. However, Chief Justice Roberts appears to hold opinions that should comfort those hoping for a “stay the course” approach to antitrust law. In an article published in the 1994 Public Interest Law Review titled “Symposium: Do We Have a Conservative Supreme Court?” Roberts commented on three notable Supreme Court antitrust opinions: Brooke Group, Spectrum Sports, and Professional Real Estate Investors.

For the full story, please view the PDF.