Appellate Court Tightens the Reins on Foreign Antitrust Enforcement

The development of case law regarding jurisdictional limits on U.S. antitrust law continued last week when the Seventh Circuit Court of Appeals recognized limits on a private litigant’s ability to hold a foreign corporation responsible for Sherman Act violations. The Foreign Trade Antitrust Improvements Act (“FTAIA”) dictates how the primary U.S. antitrust law, the Sherman Act, can apply to foreign commerce. Overseas commerce is only subject to U.S. antitrust restraints if it has a “direct, substantial, and reasonably foreseeable effect” on commerce in the United States – and if the conduct raises a claim under the Sherman Act for price-fixing, market allocation, or other prohibited conduct. Read the full article>

FDIC Sues Banks Over Libor Price-Fixing

More than a dozen major financial institutions continued to experience fallout from the U.S. Department of Justice (“DOJ”) investigation of London Interbank Offered Rate (“Libor”) price-fixing when the Federal Deposit Insurance Corporation (“FDIC”) sued them late last week. The FDIC filed suit in the Southern District of New York on behalf of 38 banks as the receiver for 38 banks that failed during the 2008 global financial crisis, including IndyMac Bank FSB and Washington Mutual Bank. The Libor is one of the key benchmarks that affect the ability to borrow money, and the FDIC lawsuit claims that efforts to unlawfully fix the Libor increased borrowing costs for the failed institutions. Submissions designed to inflate the Libor may also have masked financial weaknesses among many of the world’s largest banks, contributing further to instability in the financial markets. Read the full article>

Defense Lawyers Continue to Pressure the Justice Department over Disclosure Rules

On February 21, 2014, the National Association of Criminal Defense Lawyers (“NACDL”) sued the U.S. Department of Justice (“DOJ”) to obtain DOJ’s internal guidance regarding the government’s disclosure obligations to criminal defense lawyers. The lawsuit follows a well-publicized denial of NACDL’s Freedom of Information Act request for the internal guidance, which is known as the “Federal Criminal Discovery Blue Book.” The right to due process under the U.S. Constitution guarantees that information material to a defendant’s guilt or innocence must be disclosed by prosecutors. The U.S. Supreme Court has consistently recognized this right since its landmark decision in Brady v. Maryland, 373 U.S. 83 (1963). Read the full article>

Latest Antitrust Developments Point to Continued Robust Enforcement

We were reminded recently that two of the most widespread and lucrative antitrust investigations in the history of the Department of Justice Antitrust Division (the “Division”) remain very active and are likely to remain as such well into the future. Read the full article>

Freedom of Speech on the Internet: The Power of Section 230 of the Communications Decency Act

Experienced First Amendment lawyers know that websites hosting user-created content are extremely difficult to sue for defamation. This is due to Section 230 of the Communications Decency Act of 1996, codified at 47 U.S.C. § 230 (the “CDA”), which establishes broad immunity against tort claims for Internet websites. Read the full article>

Should the Government’s Ability to Use Conspiracy Charges Be Limited?

Last week, the Justice Department’s Antitrust Division (the “Division”) filed a motion for rehearing after significant criminal convictions were overturned on statute of limitations grounds. A conspiracy is deemed to continue until the last “overt act” in furtherance of the conspiracy, which means a conspiracy could conceivably occur over the course of several years. See 18 U.S.C. § 371. Any opinion that curtails the Justice Department’s ability to rely on conspiracy theory to expand the scope of illegal conduct alleged in an indictment, or to rely on subsequent conduct to satisfy statutes of limitation, has potentially significant consequences for antitrust conspiracy law going forward. Read the full article>

Qatar 2013: A Year in Review

The top headline from 2013 was the resignation of His Highness, the Father Emir, and the appointment of His Highness, Sheikh Tamim Bin Hamad Bin Khalifa Al Thani, as the new Emir of the State of Qatar. Read the full article>

The Climate Change Compromise and Energy Efficiency: Congress and the President Intersect in Your Building Thermostat

As the 113th Congress grows more antagonistic, it seems that energy efficiency is one of the few issues on which almost everybody in the government can agree. Using energy more efficiently saves money, helps prevent pollution, and often creates jobs. As Senator Bernie Sanders (I-VT) said in a recent Senate subcommittee hearing, becoming more energy efficient is “the lowest-hanging fruit” in the United States’ effort to save energy and combat climate change. Read the full article>

EPA Gets the Vapors, Part II

As noted in the post “EPA Gets the Vapors and Commercial Real Estate Feels the Chill,” EPA is now addressing the issue of vapor intrusion – harmful vapors from soil contamination migrating into buildings. The agency is doing so with two guidance documents and with a pending decision about whether to approve the use by consultants of an updated ASTM standard used to clear commercial real estate transactions for environmental problems. Read the full article>

EPA Gets the Vapors and Commercial Real Estate Feels the Chill

EPA is worried that you may be a canary. Your realtor may share the worry. It’s not that you recently sprouted feathers or a beak. But just as miners carried caged canaries to warn if air was unsafe, EPA is concerned that vapors from old petroleum and chemicals spills into the soil may be working their way into buildings and making people sick, usually without anyone noticing the source of illness. Read the full article>