competition

Alabama Department of Revenue v. CSX Transportation, Inc.

Issues

Does a state discriminate against railroads when competing forms of commercial transportation are exempt from a diesel fuel tax that remains applicable to rail-based carriers?

This case presents the Supreme Court with an opportunity to resolve whether federal legislation to promote interstate commerce would override a state’s right to determine how to tax competing industries. The Alabama Department of Revenue (“ADR”) argues that state taxation is entitled to deference from the courts, so long as a state provides a justification for why its taxing plan for one industry differs from that of a competing industry. CSX Transportation, on the other hand, argues that the ADR’s differentiated tax plan is discriminatory when applied to its direct competitors, and that the tax plan therefore inhibits interstate commerce. This case will ultimately decide the extent of state discretion in designing state tax codes pertaining to different industries. 

Questions as Framed for the Court by the Parties

Whether a State “discriminates against a rail carrier” in violation of 49 U.S.C. §11501(b)(4) when the State generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads' competitors.

IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. §11501(b)(4), a court should consider other aspects of the State’s tax scheme rather than focusing solely on the challenged tax provision.”

In 1976, Congress enacted the Railroad Revitalization and Regulatory Reform Act, known as the 4-R Act. Railroad Revitalization and Regulatory Reform Act, 49 U.S.C. § 11501. This act makes it illegal for a state to “impose a tax that discriminates against a rail carrier.” Id.

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Federal Trade Commission v. Phoebe Putney Health System, Inc. (11-1160)

Phoebe Putney Health Systems ("PPHS") leased and operated one of two hospitals in Dougherty County, Georgia. PPHS then leased the other county hospital, Palmyra Medical Center, from the Hospital Corporation of America ("HCA"). In April 2011, the Federal Trade Commission ("FTC") filed a complaint against PPHS, alleging that by leasing Palmyra, PPHS violated the Clayton Act and the FTC Act by acting with anticompetitive effect. PPHS argues that it should be exempt from federal antitrust law under the state action doctrine. The Eleventh Circuit found for PPHS, stating that a private actor falls within the state action doctrine when its anticompetitive activity is foreseeable by the state legislature. The FTC urges a more stringent standard where the anticompetitive effect must be intrinsic to the state’s authorization. How the Supreme Court decides this case will dictate how state legislatures delegate power to local government entities, and whether or not they must formally articulate authorization for such an entity to act with anticompetitive effect.

Questions as Framed for the Court by the Parties

1. Whether the Georgia legislature, by vesting the local government entity with general corporate powers to acquire and lease out hospitals and other property, has “clearly articulated and affirmatively expressed” a “state policy to displace competition” in the market for hospital services.

2. Whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital's operation.

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Issue(s)

Where a state legislature’s authorization leads to anticompetitive actions by a private actor, what standard will be applied to determine whether those actions are exempt from federal antitrust law?

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Ohio v. American Express Co.

Issues

What is the proper antitrust analysis to apply to a two-sided market in which anticompetitive practices injuring one side of the market simultaneously benefit the other side of the market?

The Supreme Court will determine whether American Express can contractually prevent merchants from steering customers’ credit-card choice at point-of-sale. The Second Circuit reversed the lower court, deciding in favor of American Express because of insufficient proof of anticompetitive effects in light of benefits captured by assessing both the merchant and customer sides of the market. Several states, joined by the United States, argue that American Express’s anti-steering provisions burden consumers and merchants by increasing prices. American Express counters that price increases correspond to increases in product value. If the Court upholds the Second Circuit’s test that considers both sides of a two-sided market, this would significantly change the long-standing approach to assessing antitrust claims, and affect the way the credit card market operates.

Questions as Framed for the Court by the Parties

Whether, under the “rule of reason,” the government's showing that American Express' anti-steering provisions stifle price competition on the merchant side of the credit-card platform suffices to prove anti-competitive effects and thereby shifts to American Express the burden of establishing any pro-competitive benefits from the provisions.

In 2010, the three largest credit card networks in the United States—American Express (“Amex”), Visa, and MasterCard—were sued by the United States and seventeen States for violating federal antitrust laws. United States v. American Express Co., 838 F.3d 179, 192 (2d Cir.

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Pacific Bell Telephone Co. D/B/A AT&T California v. linkLine Communications, Inc.

Issues

Is there a viable claim under Section 2 of the Sherman Act for price squeeze theories?

 

This case involves price squeeze claims and whether they are viable under Section 2 of the Sherman Act. In addition, the Court will likely determine if price squeeze claims must be pled and treated in the same way as traditional predatory pricing claims. This claim arose when linkLine, an internet service provider, sued its wholesale DSL supplier, AT&T, for engaging in anticompetitive practices in order to stifle competition in the California telecommunications market. The Ninth Circuit rejected AT&T’s argument that linkLine’s claim was not viable under antitrust jurisprudence, especially in light of the recent Supreme Court decision in Verizon v. Trinko. The Supreme Court’s ruling will determine the status of price squeeze claims in antitrust jurisprudence, and could also clarify how the costs of retail production of a vertically integrated company with a wholesale monopoly should be measured when considering retail predatory pricing claims. 

Questions as Framed for the Court by the Parties

Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant—a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors—engaged in a “price squeeze” by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete.

AT&T and its affiliates (SBC at the time of filing) comprise a “vertically-integrated” monopoly in the California telecommunications market, owning both the local telephone network and the “last mile” lines that connect individual customers to the local network. See linkLine Communications, Inc. v. SBC California, 503 F.3d 876, 877–78 (9th Cir.

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unfair competition

The law of unfair competition encompasses torts that cause economic harm to a business through deceptive or wrongful business practices. Unfair competition can be broadly divided into two categories:

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