The Supreme Court's Antitrust Docket - Part II

As mentioned previously, the Supreme Court considered a couple cases with antitrust issues during this term and recently made available the slip opinions for Illinois Tool Works v. Independent Ink and Texaco v. Dagher.

In Illinois Tool Works, which argued that a per se presumption of market power for patented products was unwarranted, the Court held:

Because a patent does not necessarily confer market power upon the patentee, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.

In Dagher, which alleged illegal price fixing by Equilon, the joint venture of Shell & Texaco, the Court held:

It is not per se illegal under §1 of the Sherman Act for a lawful,
economically integrated joint venture to set the prices at which it sells its products. . . Equilon’s pricing policy may be price fixing in a literal sense, but it is not price fixing in the antitrust sense.

A third case considering the enforceability of arbitration clauses in disputed contracts, Buckeye Check Cashing v. Cardegna, is of particular interest in the broader consumer protection arena. There, the Supreme Court reiterated the severability doctrine established in Prima Paint, holding:

Regardless of whether it is brought in federal or state court, a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must go to the arbitrator, not the court.

I am looking forward to the Consumer Protection Committee's panel at the AT spring meeting that will consider recent Class Action reforms (that may also be affected by waivers in consumer ADR clauses).

And you wonder who really wins these writing competitions? ;-)