Justia Antitrust & Trade Regulation Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit
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Until 2016, the FAA maintained a formal “slot control” system at Newark International Airport, requiring each airline to request a “slot” for each takeoff or landing. The FAA currently announces caps on takeoffs and landings for a given scheduling season. Each airline tells the FAA what flights it wants to operate during the upcoming season. The FAA may either approve an airline’s plan or request that it make changes in order to reduce congestion. An airline is not legally barred from operating unapproved flights/In 2010, the Department of Justice (DoJ) conditioned a merger on United’s transferring 36 slots to Southwest Airlines, a low-fare carrier, new to Newark. For five years, the DoJ resisted United’s attempts to acquire more slots. In 2015 the DoJ sued United for attempted monopolization but United remained Newark's dominant carrier. In 2019 Southwest announced it would pull out of Newark; 16 of its slots were in “peak hours.” Spirit Airlines requested five. The DoJ and the Port Authority cautioned the FAA against retiring Southwest’s slots, to preserve competition.The D.C. Circuit vacated the FAA’s decision to retire the slots. The decision was final because it prevented Spirit from operating as many peak-period flights as it would otherwise have done in Summer 2020 and was arbitrary and capricious because the agency disregarded warnings about the effect of its decision on competition at Newark. View "Spirit Airlines, Inc. v. United States Department of Transportation" on Justia Law

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In an action filed by the government to enjoin the vertical merger between AT&T and Time Warner under Section 7 of the Clayton Act, the DC Circuit affirmed the district court's denial of the government's request for a permanent injunction. At issue on appeal was the district court's findings on its increased leverage theory whereby costs for Turner Broadcasting System's content would increase after the merger, principally through threats of long-term "blackouts" during affiliate negotiations.The court held that the government failed to clear the first hurdle in meeting its burden of showing that the proposed merger was likely to increase Turner Broadcasting's bargaining leverage. Furthermore, the government's objections that the district court misunderstood and misapplied economic principles and clearly erred in rejecting the quantitative model were unpersuasive. In this case, the government offered no comparable analysis of data for prior vertical mergers in the industry that showed "no statistically significant effect on content prices" as defendants had. Additionally, the government's expert opinion and modeling predicting such increases failed to take into account Turner Broadcasting System's post-litigation irrevocable offers of no-blackout arbitration agreements, which a government expert acknowledged would require a new model. The court also held that the evidence indicated that the industry had become dynamic in recent years with the emergence of distributors of only on-demand content, such as Netflix and Hulu. View "United States v. AT&T, Inc." on Justia Law

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The DC Circuit held that two Federal Trade Commission attorneys were immune from suit for their conduct during an enforcement action against a medical-records company after the company's CEO publicly criticized the FTC about their investigation, where the company's data-security practices made patient records available over public file-sharing. The court held that qualified immunity protected all but the plainly incompetent or those who knowingly violate the law and, even if the attorneys sought to retaliate for the public criticism, their actions did not violate any clearly established right absent plausible allegations that their motive was the but-for cause of the Commission's enforcement action. Therefore, the court reversed the district court's denial of qualified immunity to the attorneys. View "Daugherty v. Sheer" on Justia Law

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SBA filed suit seeking to enjoin rescission of an informal opinion letter issued by the FTC (the 2016 Letter). The 2016 Letter stated that it was the FTC staff's opinion that telemarketing technology used by SBA's members was subject to the FTC's regulation of so-called "robocalls," and it announced the rescission of a 2009 FTC staff letter that had reached the opposite conclusion. The DC Circuit dismissed the complaint for failure to state claim and held that because the 2016 staff opinion letter did not constitute the consummation of the Commission's decisionmaking process by its own terms and under the FTC's regulations, it was not final agency action. Finally, SBA's speech claims were pleaded as Administrative Procedure claims under 5 U.S.C. 706(2)(B) and could not proceed without final agency action. View "Soundboard Association v. FTC" on Justia Law