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Independent Ink: Supreme Court Abandons Market Power Presumption of Patents
Franchisors that own intellectual property (patents, copyrights, or trademarks) for use as part of the franchise system have long been confronted with an unfortunate and misguided presumption that their intellectual property rights automatically gave them market power ' an essential element of many antitrust claims ' in the system's patented, copyrighted, or trademarked products and services. From an antitrust perspective, this presumption, although rebuttable, created a significant hurdle for franchisors accused of an illegal tying arrangement ' which requires, as a preliminary element, proof of market power in the allegedly tying product (often the franchise itself).
Although this presumption of market power has largely been discredited by antitrust scholars, economists, and even some courts, it continued to persist in many forms. As recently as February, while preparing to defend tying and other antitrust claims at trial on behalf of a restaurant franchisor based in Texas, my colleagues and I learned that the Fifth Circuit pattern instructions on tying arrangements expressly provided that the 'existence of a registered trademark in association with the alleged 'tying' product gives rise to a presumption that the product does possess economic power … ' See Fifth Circuit Pattern Instruction, '6.2. As luck would have it, on the second day of that trial, March 1, 2006, the Supreme Court issued its decision in Illinois Tool Works, Inc. v. Independent Ink, Inc., 126 S. Ct. 1281 (2006) and sounded the final death knell on such market power presumptions in the tying context.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.