Welcome to the end-of-summer issue of Commercial Roundup–a collection of the most important appellate decisions for commercial litigators and trial lawyers by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest courts in Delaware, New York, and Texas.
A beastly hard theory
The latest antitrust ruling by the Fifth Circuit favors a giant, General Motors, despite its huge share of the parts market that the plaintiff accused it of monopolizing. But the case says less about the Fifth Circuit's pro-defense leanings than it does about the steep odds against predatory-pricing cases in general.
The Tenth Circuit has ruled that Microsoft didn't kill WordPerfect. The market did.
Or at least that, if Microsoft did commit software-icide, it didn't lose money doing it and therefore Did Nothing Wrong. Novell, Inc. v. Microsoft Corp., No. 12-4143 (10th Cir. Sept. 23, 2013).
For other instances of antitrust-icide in the Tenth Circuit
Church & Dwight bills itself as "one of the fastest growing Consumer Packaged Goods companies" and as "a leader in the Household Consumer Products and Personal Care industry, with such brands as ARM & HAMMER, Trojan, First Response, Nair, Spinbrush, Oxi Clean, Orajel and more."
Note the "Trojan" bit.
In June 2009, the Federal Trade Commission
The attorneys-general of eight states plus the Antitrust Division of the U.S. Department of Justice have settled antitrust claims against Visa and MasterCard over their restrictions on merchants' freedom to steer customers away from cards that carry high acceptance charges.
They also sued American Express after it declined to settle.
The pact with Visa and MasterCard
The head of the DOJ's Antitrust Division, Christine Varney, has done a lot to change the Division's orientation on enforcement of Sherman Act section 2, which makes monopolization and attempts to monopolize unlawful. A big step involved withdrawing the section 2 "report" that the AD issued under Ms. Varney's predecessor. She has also joined with