Trade Regulation Tidbits

This posting was written by the editorial staff of the CCH Trade Regulation Reporter.

News, updates, and observations:

U.S. Senator Herb Kohl (D, Wis.) has announced that he will not seek another term in 2012. Kohl, who is the chairman of the Senate Judiciary Committee’s Antitrust Subcommittee, is currently serving his fourth term in the U.S. Senate, which will expire at the end of the 112th Congress on January 3, 2013. “I have decided that the time has come to give someone else the opportunity to serve,” he said in a May 13 statement.

H&R Block Inc.’s proposed acquisition of 2SS Holdings, Inc., the maker of TaxACT do-it-yourself tax preparation software, has been challenged by the Department of Justice Antitrust Division. Citing a number of internal H&R Block documents, the government’s May 23 complaint—seeking to block the proposed acquisition—contends that the transaction would substantially lessen competition in the growing U.S. digital do-it-yourself tax preparation software market by combining the second and third-largest providers of such products. One H&R Block document cited “Elimination of competitor,” according to the Justice Department. H & R Block believes the transaction is procompetitive. “Contrary to the DOJ’s position, the synergies and enhanced functionalities realized from this merger would create a more competitive landscape for tax preparation,” said William C. Cobb, H&R Block’s president and CEO.

Further information regarding United States v. H&R Block Inc. and 2SS Holdings Inc., Case No. 1:11-cv-00948 (DC D. of C.) appears at CCH Trade Regulation Reporter ¶45,111.

 The on-again, off-again injunction against the National Football League’s “lockout” of its players went back off-again on May 16, when the Eighth Circuit reversed a federal district court’s refusal to stay the injunction pending appeal. In a 2-1 decision, the appellate court disagreed with the lower court’s determination that the players—who claimed that the lockout constituted a concerted refusal to deal in violation of Sec. 1 of the Sherman Act—had demonstrated a likelihood of prevailing on the merits of an antitrust claim based specifically upon the lockout. It was the league—not the players—that best demonstrated such a likelihood of success, the appeals court held. The league made a strong showing that the Norris-LaGuardia Act—which restricts the authority of federal courts to issue injunctive relief in labor disputes—applied to the case, in the appellate court’s view. This created serious doubts as to whether the trial court had jurisdiction to enjoin the league’s lockout. The appellate court expressed skepticism toward the reasoning of the trial court that the case did not involve or grow out of a labor dispute, for purposes of the Norris-LaGuardia Act, since the players were no longer part of a union, having decertified it immediately after negotiations for a new collective bargaining agreement broke down. In addition, the players had not established that they would suffer irreparable harm from the lockout that would outweigh any harm suffered by the league and team owners.

The decision is Brady v. National Football League, 2011-1 Trade Cases ¶77,456.