• CRIMINAL

England and Wales Court of Appeal (Criminal Division) Decisions

Crown Prosecution Service v Campbell

On 18 February 2008 Susan Campbell pleaded guilty to one count of money laundering. On 16 October 2008 the issue of Campbell's representation at the related confiscation proceedings was considered by HHJ Heath. After a detailed inquiry by Campbell's solicitors, the court accepted that a suitably qualified advocate could not, at that stage, be found to conduct the proceedings. HHJ Heath ordered that a transcript of the ruling be forwarded to the Legal Services Commission ("LSC") and urged them to make an exception in this case to provide for adequate funding for an advocate, not least because substantial public funds, in the form of the potential confiscation order, were at risk. The LSC refused to make the requested exception. On 20 February 2009 the confiscation proceedings came before HHJ Heath. Campbell was unrepresented at this hearing, despite there being a representation order in her favour. Her trial counsel had left the independent bar by the time of the confiscation proceedings and her solicitors were unable to find a suitably qualified replacement barrister willing to take the case due to the rate of remuneration under the applicable graduated fee structure: then a fixed daily rate of £178.25 or fixed half daily rate of £99.50 with no funding for preparation of the case unless it involved a very unusual or novel point of law or fact, which this case did not.

Held that in the light particularly of what appeared to us to be the somewhat surprising position adopted by the Secretary of State for the Home Department and the Secretary of State for Justice, we felt that it was appropriate to grant leave. However, given that the appellant has abandoned the appeal and given that we have not heard full argument, we are not in a position to decide whether HHJ Briggs was right.

• COMPETITION

Supreme Court of The United States

Pacific Bell Telephone CO., dba AT&T California, et al. v. Linkline Communications, Inc., et al.

The Petitioners (AT&T) were owners of infrastructure and facilities needed to provide "DSL" .The requirement under the Federal Communications Commission for merger is that the AT&T should provide wholesale DSL transport service to independent firms at a price no greater than the retail price of AT&T's DSL service. The respondents in this case were independent Internet Service Providers who were required to lease wholesale DSL transport service from AT&T. Respondents filed a suit under section 2 of the Sherman Act alleging that AT&T unlawfully "squeezed" their profits margins by setting high price for the wholesale DSL transport service and a low price for its own retail DSL service. This resulted in the Respondents being placed at a competitive disadvantage. This also resulted in the monopoly of AT&T. The District Court found that AT&T had no antitrust duty to deal with the plaintiffs, but nonetheless denied the motion of AT&T. The Ninth Circuit Court affirmed the decision and held that the Plaintiffs complaint stated a potentially valid claim. In the present appeal, AT&T seeked reversal of the decision and dismissal of the complaint, while the Plaintiffs seek leave to amend their complaint to allege a Brooke Group claim. The Court held that a price-squeeze claim may not be brought under section 2 of the Sherman act when the petitioner has no antitrust duty to deal with the respondents at wholesale. The respondents have also agreed that their claims must meet the Brook group test for predatory pricing, apart from their price squeeze theory. The test calls for two requirements for predatory pricing , i.e. below-cost retail pricing and a "dangerous probability" that the defendant will recoup any lost profits. Where there is no duty to deal at the wholesale level and no predatory pricing at the retail level, a firm is not required to price both of these services in a manner that preserves its rivals' profit margins. The Respondents had alleged that the petitioners had abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. But a firm with no antitrust duty to deal in the wholesale market has no obligation to deal under terms and conditions favorable to its competitors other component of a price-squeeze claim is the assertion that the petitioners retail prices are "too low." Respondents claims finds no support in the existing antitrust doctrine. The court dissented from the District court and the Ninth Circuit. It was held that a price-squeeze claim involves allegations of both a high wholesale price and a low retail price. The Court of Appeals addressed only AT&T's motion for judgment on the pleadings on the respondents original complaint. For the reasons stated, it was held that the price-squeeze claims set forth in that complaint are not cognizable under the Sherman Act. Judgment of Ninth Circuit Court was reversed.

European Court of Justice

Intel Corporation and Anr. v. Advanced Micro Devices, Inc. and Anr.

Microprocessors x86, has two worldwide players namely Intel and AMD. AMD complained against Intel of abusing its dominant position. AMD complained Intel of giving rebates to various computer makers. Complaints were filed by AMD with EU authorities in 2000 , and further complaints were filed in 2003 and 2006.EU regulators started investigations in 2001.After investigations the commission issued statement of objects against Intel in 2008, 2009. The Commission stated that Intel enjoyed a dominant status with respect to x86 processors capturing around 70% of the total Market share. The Commission was of the view that Intel had abused its dominant position. The first abuse identified by the Commission was that Intel had awarded major computer manufacturers like Acer, Dell, HP, Lenovo and NEC and Media Saturn Holding, owner of the Media Markt chain rebates on the condition that they purchased all or almost all of their supplies, at least in certain defined segments, from Intel. The Second charge levelled against Intel was that it had made payments to PC manufacturers to delay or cancel the launch of products based on AMD microprocessors. Also Intel was charged of paying paying retailers not to sell personal computers using AMD chips. Intel claimed that that it had done nothing wrong and that EU officials have not provided Intel with proper rights of defense during the investigation. Intel brought a challenge in the European Court of First Instance, alleging that its rights of defence had not been respected. Their request for interim measures were rejected by the court. The Commission held that Intel's Right to defence had been fully protected. The European Commission after the enquiry imposed a fine of €1 060 000 000 on Intel for violating EC Treaty antitrust rules on the abuse of a dominant market position (Article 82) by engaging in illegal anti-competitive practices to exclude competitors from the market for computer chips called x86 central processing units (CPUs). The Commission found that Intel was engaged in two type of illegal practice. One is Conditional rebates and payments awarded to major computer manufactures imposing conditions that they purchase all or almost all of their supplies exclusively from Intel. These rebates by imposing conditions badly affected the consumers preventing them from having a alternative choice. Secondly Intel made payments to manufactures to prevent sales of specific rival products. Intel also imposed on condition that these computer manufacturers postponed or cancelled the launch of specific AMD-based products and/or put restrictions on the distribution of specific AMD-based products. The Commission found that these payments had the potential effect of preventing products for which there was a consumer demand from coming to the market. Hence, Commission ordered Intel to cease the illegal practices immediately. The commission held, that Intel has harmed millions of European consumers by deliberately acting to keep competitors out of the market for computer chips for many years.