Richard Wolfram is an independent U.S. lawyer based in New York City. His practice, launched in 2005, focuses on antitrust counseling and litigation on behalf of corporations, professional organizations and public advocacy entities.
Drawing on his 30 years of experience in antitrust and 34 years in commercial litigation, Mr. Wolfram focuses on helping each client achieve its objectives through effective, cost-efficient counseling and/or litigation.
The constructive use of antitrust to achieve these ends often requires ‘problem solving’ — taking apart a client’s concrete issues, identifying the antitrust component and using this legal tool to the client’s advantage, whether as a plaintiff, defendant, amicus (friend of the court) or interested observer (e.g., consulting on behalf of investors regarding mergers and other civil litigation matters).
Technology and business practices continue to undergo rapid transformation. To address today’s economic and commercial realities, the effective advocate can use the law creatively, when necessary, to persuade courts and other enforcers to embrace somewhat novel applications of established principles, provided he or she respects the fundamentals and thoroughly marshals the supporting facts.
Mr. Wolfram’s representations have consistently involved cutting-edge issues in high-profile matters. Recent examples include an exclusive dealing/tying/monopolization suit in healthcare which has elicited a rare Statement of Interest by the Department of Justice supporting legal arguments by the plaintiff-client; successfully negotiated claims by a major European vehicle manufacturer against shipping carriers in the worldwide ‘Roll-On-Roll-Off’ cartel investigation, involving first-impression substantive and procedural issues at the interface of federal and state antitrust law and the federal Shipping Act; a concerted refusal to deal case (in which the Supreme Court denied certiorari) raising unresolved questions among the circuit courts over the widespread but often misapplied Matsushita standard for surviving summary judgment in antitrust cases; and an amicus brief in the LIBOR litigation on behalf of economists and antitrust professors explaining why, contrary to the district court, plaintiffs satisfied the antitrust injury requirement, contributing to reversal by the Second Circuit and subsequent substantial settlements and also class certification for OTC plaintiffs.
In addition to his solo representation of clients, Mr. Wolfram sometimes teams up with other antitrust lawyers and is also called upon by firms seeking antitrust expertise for their clients. Responsiveness and depth of experience and expertise are highly valued by clients, across a range of antitrust issues, and a lean practice model with flexibility for collaboration helps address these needs.
— These are some of the key components of Mr. Wolfram’s antitrust ‘toolbox’.
Antitrust addresses both single-firm and joint conduct. Across these categories, Mr Wolfram advises and litigates on:
- mergers and acquisitions;
- joint ventures;
- price-fixing, market division and concerted refusals to deal/boycotts;
- distribution (e.g., exclusive dealing, tying and resale price maintenance);
- price discrimination;
- standard setting and patent pools;
- intellectual property licensing and related antitrust/intellectual property issues such as patent misuse; and
- international antitrust.
Antitrust compliance review in these areas is also a key component of his counseling.
Mr. Wolfram has published widely on a number of antitrust topics in U.S. and foreign publications since 1995 and has guest-lectured and spoken at conferences on antitrust. The range and depth of his writing and speaking are an important facet of his ability to deliver results for his clients.
He has practiced predominantly in antitrust since 1995, including nine years at Clifford Chance/Rogers & Wells in New York City. From 1985 to 1995, Mr. Wolfram worked as an associate in commercial litigation at several large and medium-sized international firms in New York.
More information about Mr. Wolfram’s practice, including representative matters, related experience and educational background, a bibliography and contact information, is available below.
June 21, 2023: Comment to FTC re Competitive Implications of Cloud Services:
In response to a March 22nd, 2023 Request for Information on the business practices of cloud computing providers, RW and David Balto filed a Comment in our personal capacities focusing on one of the FTC’s RFI questions – market power and business practices affecting competition in cloud computing. For context, the Comment notes “the outsized importance and rapid growth of cloud services, as firms, institutions and private consumers worldwide, including of course in the U.S., have increasingly digitized their operations over the past few years, moving their digital computing off-premises and into the cloud (i.e., data centers) for greater capacity, resiliency and security. Chief among the services on which these entities rely is software, and in particular, business software suites, so that with this transition into the cloud, the software operates in effect in the cloud.” More particularly, “any firm vertically integrated through the provision of software and cloud infrastructure/platform services is uniquely positioned to leverage power it may have in the relevant software market/s to acquire and/or maintain power in the cloud infrastructure market. [. . .] To the extent a vertically integrated firm acquires such power in the infrastructure market largely or solely thanks to its power in the first, adjacent software, market instead of on the merits, competition is distorted and antitrust scrutiny and perhaps intervention are warranted.” The Comment continues with detailed analysis and examples, here, https://www.regulations.gov/comment/FTC-2023-0028-0091, and available at https://www.regulations.gov/docket/FTC-2023-0028/comments , along with some 89 other comments, including from Amazon, Oracle, Google and Microsoft.
March 2, 2022: Letter from Kyiv — Letter to the editor enclosing letter from Ukrainian competition lawyers, with message to Russians, https://greenwichfreepress.com/news/letter-from-the-front-lines-kyiv-176232/.
June 12, 2020: Led ABA Antitrust Section Zoom Program on Assessing Oligopolistic Conscious Parallelism on Summary Judgment:
- Conceived, organized and led ABA Antitrust Section program on oligopolistic conscious parallelism on summary judgment, in light of Supreme Court’s Matsushita (1986) and Kodak (1992) decisions and focusing on two cases decided on virtually identical facts and allegations of price fixing, with opposite holdings: Valspar v. DuPont (3d Cir. 2017), granting summary judgment, and In Re Titanium Dioxide (D. Md. 2015), denying summary judgment. Panelists, including the dissenting judge in Valspar, engaged in mock oral argument. Program recording (Zoom) available on the Antitrust Section website or contact RW.
February 9, 2020: DOJ Antitrust Division Closes Investigation of Four Automakers for Alleged Collusion.
- The Division reportedly just closed its investigation — i.e., without taking action — of Ford, Volkswagen, Honda and BMW for their framework agreement with California on vehicle emissions standards. In my Oct. 15th and Nov. 7th posts/articles (see below), I raised questions — and noted similar questions from other antitrust attorneys — about the basis for the investigation, which the AAG for Antitrust said was focused on possible collusion. The relatively short period of time from the announcement in early fall of the opening of the investigation to its closing is noteworthy.
November 21, 2019: Presented CLE Program.
- “Antitrust Issues and Developments” — 100-minute audio program (Celesq Programs in Partnership with Thomson Reuters/West). https://www.celesq.com/programs/view/antitrust?.For access, possible CLE credit, contact RW.
November 7, 2019: Article on Motion to Intervene by 12 Carmarkers in Support of Trump Administration on Uniform Federal Emissions Standards (questioning whether the DOJ will investigate)
- Available at the Wolters-Kluwer Antitrust Connect blog: http://antitrustconnect.com/2019/11/07/twelve-other-carmakers-move-to-support-government-enforcement-of-uniform-federal-standards-on-emissions-will-the-doj-investigate/?
October 15, 2019: Article on DOJ’s Investigation of Car Manufacturers’ Agreement with California on Emissions and MPG Standards
- Available at the Wolters-Kluwer Antitrust Connect blog: http://antitrustconnect/2019/10/15/the-doj-investigates-car-manufacturers-for-collusion-in-their framework-agreement-with-california-on-gas-mileage-and-emissions-standards-sounding-the-depths-of-prosecutorial-discret/. Also available at the e-Competition Bulletin of Concurrences: https://www.concurrences.com/en/bulletin/news-issues/october-2019/the-us-doj-opens-an-investigation-of-four-car-manufacturers-for-possible?
February 2019: Presented in two antitrust CLE programs.
- Feb. 27: Participated in NY State Bar 90-minute CLE program with two other antitrust attorneys on parallel conduct, ‘plus factors’ and the summary judgment standard in antitrust conspiracy cases. For more information and free video access, contact RW.
- Feb. 21: Organized and participated in Lawline ‘hot topics’ 90-minute video CLE program with two fellow antitrust attorneys, an antitrust economist and an IP attorney. For more information and free video access, including possible CLE credit, contact RW.
February 2018: DOJ files Statement of Interest in Marion Healthcare v. Southern Illinois Healthcare (S.D. Ill.) regarding proper assessment of antitrust exclusive dealing claims.
- Feb. 9: DOJ filed Statement of Interest (SOI) at summary judgment phase of client Marion’s healthcare exclusive dealing (and tying and monopolization) action, rejecting what the government perceives as overbroad defense of healthcare provider-insurer contracts alleged to be exclusive. The DOJ rarely files SOIs in antitrust cases, thus reflecting its interest here in a proper reading of the law. While taking no position on the merits, the SOI rejects defendant’s arguments that short-term exclusive contracts are legal as a matter of law rather than subject to the rule of reason. Article here; SOI here.
- April 10, 2018: Oral argument on defendant’s motion for summary judgment (S. D. Ill., East St. Louis Div.).
March 2017: Petition for certiorari filed with U.S. Supreme Court regarding summary judgment standard in antitrust. Petition denied, Oct. 2, 2017.
- March 17: Filed petition on behalf of Evergreen Partnering seeking reversal of First Circuit Court of Appeals summary judgment decision. See below for petition.
- Update: April 21- Amicus brief signed by 12 professors of antitrust and economics supporting petition for certiorari filed with Supreme Court. See below for brief.
- May 23: Petition for certiorari posted as “Petition of the Day” on SCOTUS blog. See http://www.scotusblog.com.?
- June 14: Article in Policy and Regulatory Report discussing Evergreen’s rationale for why petition is cert-worthy, with comments from observers, here.
- September 15: Filed Reply brief on behalf of Evergreen in response to Respondents’ Opposition — here.
- October 2: Supreme Court denied Evergreen’s petition, without comment. RW comment, at invitation of legal press: “The Court lost an important and timely opportunity to clarify an issue that has created tremendous confusion and inconsistency among the circuits — the proper tools for applying the summary judgment standard in antitrust. Although the Court understandably focuses on issues of law and not fact for petitions that it accepts, one has to wonder what set of facts — with the lower court here improperly weighing evidence and making crediblity determinations and applying the much-criticized equal inferences rule — would serve as a better vehicle for resolving this question. This issue is not going away, and anyone who practices antitrust knows that.” Click here and here for articles about the decision. Confirming this comment, and on the same day, a panel of the Third Circuit Court of Appeals publicly issued a decision affirming summary judgment dismissal of a Sherman Act Section 1oligopoly conspiracy case despite findings of 31 uniform price increases by defendants over 11 years, well over any increase in costs and despite declining demand and excess capacity. Valspar Corp. v. Dupont (3d Cir., 10/2/17). Arguably pre-empting the role of the trier of fact, just as Evergreen alleged the First Circuit did in its case, the Third Circuit panel required that the plaintiff provide inferences that the alleged conspiracy was “more likely than not” rather than applying the general summary judgment standard, as repeated by the Supreme Court in Kodak, that the plaintiff show simply that a jury could reasonably find in favor of the plaintiff. The plaintiff’s burden at trial is to prove its case by a preponderance of evidence (51%), whereas its burden on summary judment is simply to show that a jury could reasonably find in its favor — which the Supreme Court itself has explained is less than the preponderance standard. As Evergreen explained in its petition, and as applies equally in Valspar, to require that the plaintiff show by a preponderance of evidence on summary judgment that a jury would find in its favor front-loads the preponderance burden, effectively pre-empts the role of the jury, infringes on the Seventh Amendment right of the plaintiff, and is illogical, raising the bar by requiring that the plaintiff satisfy the preponderance standard at both the summary judgment phase and at trial.
August 2016. FTC closes non-public investigation with favorable resolution for client.
- Represented company providing educational software for teacher evaluation in 4+ year non-public investigation by FTC of alleged unfair methods of competition under Sect. 5 of the FTC Act. Represented company first as complainant and then, after it acquired the target of the investigation, as respondent. FTC closed the investigation in August 2016 with successful outcome for client.
June 2016: Commentary on Brexit vote.
- Commentary in Law360 publication on competition law implications of Brexit vote.
May 23, 2016. In Re LIBOR (Gelboim v. Bank of America) (2d Cir.).
- A unanimous panel of the Court of Appeals for the Second Circuit reversed the district court’s March 2013 decision granting defendants’ motions to dismiss plaintiffs’ claims of price-fixing in the setting of LIBOR, the daily interest rate benchmark. The Court substantially adopted the arguments of the plaintiffs and the amici seeking reversal, including RW amicus on behalf of 17 professors of antitrust and eocnomics. In remanding to the district court, the Court noted that damages assessed on any ultimate finding of liability could be so great as to bankrupt several of the defendant banks. In practical effect and for its clear endorsement of major legal principles of antitrust, the decision is arguably the most important in antitrust so far this year. Short summary of the decision here. Article in Policy and Regulatory Report with RW comment here.
May 5, 2016. Evergreen Partnering v. Pactiv, 1st Circuit Court of Appeals.
- Presented oral argument in federal First Circuit Court of Appeals on behalf of plaintiff-appellant Evergreen, seeking reversal of summary judgment decision below. Evergreen alleges that defendants violated Section 1 of the Sherman Act through a concerted refusal to deal concerning its effort to introduce recycling for polystyrene food service products (cups, trays, etc.) made by defendants. The First Circuit previously reversed a decision by the district court dismissing the case on defendants’ motions to dismiss, finding that the lower court had misconstrued the threshold pleading standard of Bell Atlantic Corp. v. Twombly.? Following discovery, the district court granted defendants’ motion for summary judgment. Update: Court of Appeals upheld the district court’s summary judgment decision (8/2/16). Evergreen filed a petition for rehearing by the panel with a suggestion for rehearing en banc (9/21/16). The Court then denied the petition in an order with no opinion (10.18.16). Article on the denial, with comment by RW, here. On March 17, 2017, Evergreen filed a petition for certiorari with the Supreme Court. Evergreen contends that the First Circuit misinterpreted and misapplied the Matsushita (1986) standard for summary judgment and that there is split among the Circuits requiring clarification in light of the Court’s limitation of the Matsushita standard in the Court’s decision in Kodak (1992). On April 21st, an amicus brief signed by 12 professors of antitrust and economics supporting the petition for certiorari was filed with the Supreme Court. ???
Sept. 2015. Endo-Par $8 B generic pharmaceuticals merger provisionally approved by FTC on Sept. 25th, subject to divestitures.
- Represented Rising Pharmaceuticals as acquirer of certain generics required to be divested as condition of approval of the merger by the FTC. Article here.
May 27, 2015. In Re LIBOR: amicus brief filing on behalf of 17 antitrust scholars in Court of Appeals for the Second Circuit.
- Authored and
filed amicus brief on behalf of 17 antitrust scholars —
professors of law and economics — supporting plaintiffs’ appeal in the Second
Circuit of the district court’s March 2013 dismissal of the Section 1, Sherman
Act claims for lack of antitrust injury. Summary description here.
April 7-10, 2015. Americas Interconnection Summit, San Diego, organized by client Open-IX.
- Antitrust compliance presentation to participants (i.e., Internet participants interested in interconnection, including ISPs, content providers, content delivery networks, data center and internet exchange operators, and related network software and hardware providers). See www.open-ix.org.
Jan. 28, 2015. In re LIBOR (S.D.N.Y.)
- Blog article in Wolters Kluwer Connect on antitrust injury in context of Supreme Court’s decision allowing immediate appeal of New York federal district court’s dismissal of antitrust claim for lack of plausible showing of antitrust injury in In re LIBOR,: assessing rationale of dismissal and previewing longer (59-page) article on same subject. Oral argument in Second Circuit scheduled for Niovembert 2015.
Jan. 21, 2015. Comment on Supreme Court decision paving way for appeal of dismissal of antitrust claims in In re LIBOR:
- Quotedin Wolters Kluwer article on Supreme Court decision that New York federal district court’s March 2013 dismissal of antitrust claim was an appealable order, paving the way for appeal of ruling that plaintiffs failed to plausibly allege antitrust injury.
Feb. 4, 2014. Forex-LIBOR comparison (RW press comment):
- Quoted in “Analysis: Lawsuits over forex market face uncertain future,” (Reuters) (describing worldwide investigations of alleged manipulation of the WM/Reuters fix, a key foreign exchange rate benchmark). Quoted regarding possible comparison between collaborative setting of LIBOR benchmark and no antitrust injury from alleged manipulatoin of LIBOR, according to March 2013 ruling of S.D.N.Y. district court, and the setting of the WM/Reuters fix, and implications of LIBOR holding on Forex suits.
Sept. 20, 2013. Panelist, “FRAND determination and antitrust: what is a fair FRAND” – International League of Competition Law, Annual Conference, Kiev, Ukraine.
- Presentation on standard setting and licensing commitments to standard setting organizations under U.S. antitrust and intellectual property law.
April 5, 2013. Public Comment to DOJ and FTC on Patent Assertion Entities:
- Submitted in response to request for public comments following Dec. 2012 DOJ-FTC Hearing on Patent Assertion Entities, available at http://www.ftc.gov/os/comments/pae/pae-0066.pdf. Cited in E. Mintzer and S. Munck, “The Joint U.S. Department of Justice and Federal Trade Commission Workshop on Patent Assertion Entity Activities — ‘Follow The Money’,” 79 Antitrust L. J. 423, 441 n.92, 442 n.93 (2014). Also adapted for publication in Antitrust Connect, Wolters Kluwer antitrust blog (May 8, 2013) (http://www.antitrustconnect.com).
March 27, 2012. Panelist, “Three Faces of Frand: The Evolving Understanding of Standards Essential Patents,” ABA webinar, Science & Technology and Intellectual Property Sections:
- Teleconference discussion of FRAND licensing terms for standards essential patents in context of Google-Motorola Mobility and other recent acquisitions of IP portfolios, EC and DOJ review, and competitive effects of strategic uses of IP rights. Audio available upon request.
Jan. 24, 2012. Connecticut AG Announces Latest Settlement with DRAM Manufacturers – (RW press comment):
- On Janurary 23rd, the Connecticut Attorney General announced a $175,000 settlement with four manufacturers of dynamic random access memory for alleged price-fixing. This is just the latest recovery from long-running federal, state and private class action multi-enforcement efforts regarding alleged price-fixing by a number of DRAM manufacturers (2002 DOJ action — $730M; attorneys general multistate settlement in 2002 — $173M; private class actions on behalf of indirect purchasers).
- RW was quoted in an article in Global Competition Review on the settlement: “Richard Wolfram, an independent antitrust practitioner in New York, says multiple enforcers seeking duplicative recovery for the same conduct is increasingly common in the US. ‘We’ve seen this play out in cases against Mylan, Nine West, Microsoft and vitamins manufacturers, among many others,’ he says. ‘Judge Richard Posner of the Seventh Circuit has called this ‘the cluster bomb effect’, but whatever the criticisms over judicial inefficiency and duplicative recoveries, it has become the norm over the last 20 years or so’.” Global Competition Review, online news article, 1/24/12.
Jan. 17, 2012. On the Radar: Massive Credit Card Interchange Fee Multidistrict Litigation – (RW press comment):
- A multidistrict credit card interchange fee antitrust litigation (In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, E.D.N.Y.) is finally beginning to capture media attention, more than six years after it was filed ??– and none too soon for a case with potential liability estimated at upwards of $100B. The case pits a putative class of some five million retail merchants and additional opt-out individual plaintiffs against Visa, Mastercard and a handful of “issuing” (cardholders’) banks and “acquiring” (merchants’) banks. Plaintiffs allege that the defendants violated antitrust laws by agreeing to fix anticompetitive rates for interchange fees paid by merchants on credit card transactions. One of the key issues before the court on pending motions for summary judgment is the plaintiffs’ standing to sue for the alleged overcharges, under federal antitrust doctrine which denies standing to indirect purchasers except in limited circumstances. RW was quoted in a recent article in Global Competition Review evaluating possible pressure on the defendants to settle the long-running, outsized case, and focused on the question of standing: “Richard Wolfram, an independent antitrust practitioner in New York, says the case is highly complex in many aspects, but one significant problem for both sides is the issue of whether the alleged overcharges can be categorised as direct or indirect antitrust injuries suffered by the plaintiffs. This is important because under the federal antitrust Illinois Brick doctrine, only direct purchasers may recover damages for overcharges. Wolfram continues: ‘For example, the defendants say the merchants don’t have standing to sue as direct purchasers as they don’t pay [the interchange fees] directly. Instead, as a contractual matter, the merchants’ banks pay the fees to the cardholders’ banks and recoup the sum from the merchants.’ Meanwhile, ‘the plaintiffs say the economic reality should trump the formal contractual relationship in this case’, he says.” Global Competition Review online news article, Jan. 17, 2012.
Nov. 17, 2011. Jury Rejects $4B RDRAM Antitrust Suit by Rambus – (RW press comment):
- A California state court jury rejected claims by Rambus that Hynix and Micron fixed prices and conspired to prevent Rambus’s RDRAM memory technology from becoming an industry standard, causing Rambus to lose some $4B in royalties (or $12B after antitrust trebling). Rambus filed suit in 2004; the jury deliberated for eight weeks following some 15 weeks of trial. RW quoted in Global Competition Review‘s daily online news regarding the verdict. For persuasive explanation for Rambus’s defeat, see also http://blogs.reuters.com/alison-frankel/2011/11/18/how-the-ghost-riders-theory-won-rambus-trial/: ‘yes, there was price-fixing, defendants acknowledged, but not this price-fixing and Rambus’s technology failed because of its own problems’.
April 28, 2011. IOM Urges Reform of Standard Setting in Clinical Practice Guidelines:
- At the end of March, the influential Institute of Medicine of the National Academies in Washington, D.C. proposed standards for the development of clinical practice guidelines (CPGs) in medicine and issued an accompanying 250-page report calling for significant reform in the development of CPGs. Clinical practice guidelines and evidence-based medicine are taking center stage in health care practice and policy and the IOM’s call for reform is likely to reverberate throughout government and the private sector. As an example of the need for CPG reform, the IOM prominently cites an investigation and settlement in 2008 by the Connecticut Attorney General regarding guidelines developed by the Infectious Diseases Society of America (IDSA) for the diagnosis and treatment of Lyme disease. (As antitrust counsel to various complainants in the long-running matter, RW presented, with co-counsel, a putative antitrust case to the AG alleging process abuse in the development of the guidelines — as standards — by financially interested panelists, and implementation of the guidelines by the IDSA, with resulting harm to competition for treatment modalities and antitrust injury. See below.) The IOM’s call for reform highlights the singular importance of CPG development in health care and anticipates, by reference to the Lyme investigation, the potential antitrust implications of such activity. For a short summary and comment on the IOM’s proposed standards and report and its discussion of the Lyme investigation as emblematic of the need for reform, click here.
Jan. 6, 2011. Article on ‘Most Favored Nations’ Clauses:
- “‘Most Favored Nations’ Clauses under the Spotlight: U.S. v. Blue Cross Blue Shield of Michigan — When Might Otherwise Competitively Neutral or Procompetitive MFN Clauses Violate the Antitrust Laws?”, Wolters Kluwer Law & Business, Antitrust Blog, http://antitrustconnect.com.
Nov. 15, 2010. Litigation — IP/Antitrust:
- As member of antitrust/litigation team, helped defeat motion to dismiss antitrust and patent misuse counterclaims and affirmative defenses in federal district court on behalf of defendant ‘aggregator’ of flash memory technology products against patentee claiming infringement. Defendant alleges that plaintiff’s licensing demands violate federal and state antitrust laws and constitute patent misuse. Order denying motion to dismiss, W.D. of Wisconsin, 11/15/10 (26 page opinion).
Oct. 13, 2010. ABA teleseminar:
- Organizer/co-moderator/ panelist, “The Draft EU Guidelines on Standard Setting,” ABA Science and Technology and Antitrust Sections.
July 13, 2010. Litigation — Monopolization, Anticompetitive Agreements:
- As antitrust counsel on team acting on behalf of plaintiff BanxCorp, helped defeat defendant Bankrate’s third and final motion to dismiss claims for exclusive dealing, price fixing, predatory pricing and monopolization under federal and state antitrust law. Order denying motion to dismiss, D. of New Jersey, 7/13/10.
Aug. 2010. Co-author, article on application of antitrust standard setting principles to clinical practice guidelines:
- “Evidence-Based Clinical Guidelines: An Rx for Better Quality, an Opportunity for Exclusionary Conduct, or a Little of Both,” Connections, Am. Health Lwyrs Assoc’n
May, June, 2010. American Needle v. NFL (S.Ct.) and Deutscher Tennis Bund v. ATP Tour Inc. (3rd Circuit):
- Can the members of sports leagues and associations, like partners in any joint venture, be deemed to agree with each other regarding their joint activities, within the meaning of Section 1, or do they collectively constitute a single entity or enterprise, such that they are immune from liability under Section 1? The much anticipated decision by the Court in American Needle articulated a ‘new’ test that is in fact consistent with and thus does not upset precedent on the question: their conduct will typically be reviewed under Section 1 under the rule of reason. Meanwhile — in a case in which RW represented a foreign national tennis federation as an unnamed defendant — the Third Circuit explicitly anticipated ‘single entity’ guidance from the Court regarding the legality under Section 1 of decisions reorganizing ATP tournament play. But then, one month after American Needle came down, the Third Circuit dodged the question of whether the ATP’s decisions constitute concerted activity or instead conduct by a single entity. For futher discussion, click here.
January 6, 2010. Nokia v. Apple — Spotlight on ETSI/FRAND reciprocity provision:
- Nokia sued Apple in federal district court in October ’09 for infringement of wireless intellectual property rights; Apple counterclaimed in December, alleging patent ‘holdup’ in wireless technology. (The backdrop is Nokia’s alleged commercial missteps in allowing Apple to establish firm lead in smartphone sector.) Nokia was obligated by its participation agreement with the European Telecommuni-cations Standards Institute (ETSI) to offer licenses to its ETSI-standardized wireless technology on FRAND (“fair, reasonable and non-discriminatory”) terms (as generally required by standards setting organizations/SSOs) — which it allegedly did to 39 other licensees. From Apple, however, Nokia exceptionally sought ‘grantback’ licenses — to Apple’s smartphone technology. Arguably supporting Nokia’s demand is an ETSI provision which by its terms conditions an ETSI licensor’s FRAND licensing obligation on a right of reciprocity from its licensee. The meaning and effect of this reciprocity provision, in the licensing rules of one of the world’s most important SSOs for wireless technology, are untested in U.S. courts. See ‘Friends and Clients’ e-mail, more detailed comment, and articles in Global Competition Review and Swedish business daily Dagens Industri, quoting RW.
Oct. 23, 2009. Antitrust developments in resale price maintenance:
- Assistant Attorney General Christine Varney recently proposed a structured rule of reason for RPM arragements under federal law. Taking her cue from the Supreme Court’s invitation to lower courts in Leegin — which overturned the treatment of RPM as per se illegal –‘to devise rules and even presumptions’ for applying the rule of reason, AAG Varney provides a compelling, straightforward and manageable model for balancing procompetitive and anticompetitive aspects of RPM — one which may prove highly influential to advocates and courts. For short RW summary, see “AAG Varney Proposes a Structured Rule of Reason for RPM under Leegin — A Summary and Appraisal.”
Oct. 14-15, 2009. Meetings with FTC and DOJ on standards and open source:
- Participated in briefings with FTC and DOJ officials as ‘delegate’/member of the Committee on Standards and Open Source of the American Intellectual Propertly Law Association; other delegates included in-house counsel at several major high-tech companies and other private attorneys. RW comments focused on current antitrust and ‘equitable estoppel’ issues in this area.
July 30, 2009. Unprecedented hearing by reconstituted guidelines panel on Lyme disease — pursuant to Connecticut Attorney General’s 18-month antitrust investigation and May 2008 settlement regarding the development of clinical guidelines on Lyme disease by the Infectious Diseases Society of America (IDSA) — followed by issuance of final report by panel in spring 2010:
- On July 30, 2009, a reconstituted IDSA Lyme guidelines panel held a full-day hearing in Washington, D.C., as provided by the settlement, to evaluate the science and determine whether or not it supports the current guidelines. Sixteen scientists and doctors and two patient advocates made presentations to the nine-member panel, which was charged with weighing the evidence and issuing a report. The hearing was broadcast live over the internet and was available for viewing on the IDSA’s website (go to http://www.idsociety.org/Content.aspx?id=15026). See press: http://www.greenwichtime.com/ci_12955324?IADID=Search-www.greenwichtime.com-www.greenwichtime.com. The hearing was the culmination of more than three years of antitrust and other advocacy by RW and a colleague on behalf of various patient and physician associations and a diagnostics laboratory, which likened the guideline development process to standard setting.and focused on process integrity and commercial conflicts of interest on the part of the previous IDSA panel. See Practice and Articles & Commentary, below; see also RW June/09 letter (followed by reply) to the editor of the Journal of the American Medical Association responding to Feb./09 Commentary in JAMA criticizing the AG’s intervention. The review and voting process, although carried out internally under the supervision of the IDSA, were nonethless subject to some AG oversight, and offer a glimpse into some of the difficult steps of implementing evidence-based medicine in a manner consistent with the law. In the spring of 2010 the reconstituted panel issued its report, finding essentially no reason to revise the guidelines in light of the evidence presented at the hearing. For more details and comment on the need for guidance on the appropriate evidentiary standard when formulating or reviewing clincal practice guidelines, click here.
July 16,2009. Google/antitrust:
- Quoted in Global Competition Review daily online news regarding Google’s offering of ‘free’ services — antitrust implications, if any, and DOJ scrutiny of Google’s conduct.
July 15, 2009. Article on Standard setting/Rambus:
- “Down the rabbit hole with Rambus“ (see Articles & Publications) — feature article in July 2009 issue of Global Competition Review magazine (http://www.globalcompetitionreview.com/features/issues/current/).
June 2, 2009. Effects of GM bankruptcy on viability of Saab:
- Quoted in Dagens Industri(Swedish business daily).
Feb. 23, 2009. Standard Setting – Rambus:
- Quoted in GCR daily online news regarding Supreme Court’s denial of certiorari in Rambus v. FTC. (RW co-authored one of seven amicus briefs in support of FTC’s unsuccessful petition for Supreme Court review.)