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Hot Bench For Antitrust Cases


With the 2006 Term of the U.S. Supreme Court only recently begun, something new and interesting is happening in the antitrust arena. Having heard two antitrust cases on November 27 (Bell Atlantic v. Twombly) and November 28 (Weyerhaeuser v. Ross-Simmons Hardwood), respectively, on December 7, the Court agreed to hear two more (Credit Suisse v. Billing and Leegin Creative Leather v. PSKS). Taken together, this represents more antitrust cases in a single term than the Court has heard in nearly 15 years.

As you will recall,  the Court now has a new Chief Justice in John G. Roberts, Jr. (sworn in on September 29, 2005) and a new Associate Justice in Samuel A. Alito, Jr. (sworn in on January 31, 2006). With this change composition, the Court appears to have placed a new emphasis on antitrust.

The Leegin Creative Leather case highlights this. The Court agreed to hear that case without even asking the United States for its view. It is certainly not that Leegin Creative Leather is an unimportant case. Quite the contrary: it poses the question of whether minimum resale price maintenance should be treated as per se illegal as the Court's nearly 100 year old precedent dictates. Dr. Miles Med. Co. v. John D. Park & Sons & Co. , 220 U.S. 373 (1911).

Moreover, the Court did ask the United States for its view on whether it should hear the Credit Suisse case. The U.S. told the Court that it should hear that case because it poses serious and recurring questions about the interface between U.S. securities law and antitrust law.

All in all, it appears that this term, the Supreme Court is a hot bench for antitrust cases. With the four cases it has taken so far, we expect significant new developments in the requirements for pleading a conspiracy (Twombly), the standards for differentiating predatory and competitive conduct (Weyerhaeuser), the criteria for implied repealer immunity (Credit Suisse), and the rules governing minimum resale price maintenance (Leegin).

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For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Clifton S. Elgarten
Partner – Washington, D.C.
Phone: +1 202.624.2523