пятница, 18 марта 2022 г.

https://www.jdsupra.com/

 

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Ninth Circuit Rejects Vehicle Manufacturer’s Attempt to Enforce Arbitration Clause in Dealership Purchase Agreement

 

WRITTEN BY:

King & Spalding

A court’s resolution of arbitration-clause enforcement issues frequently turns on nuances in state decisional law and the precise meaning of the terms used in the arbitration provision.

 

 

Under California law, a non-signatory to an arbitration agreement can move to compel arbitration as a third-party beneficiary only if it can prove that the “express provisions of the contract” show that (1) the non-signatory would benefit from the contract; (2) a “motivating purpose of the contracting parties was to provide a benefit to the third party”; and (3) permitting the “third party to enforce the contract is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.”

 

 

Language limiting the right to compel arbitration to a specific buyer and a specific dealership (and its assignees) means that extraneous third parties may not compel arbitration.

 

 

The doctrine of equitable estoppel prevents a plaintiff from “seeking to hold a non-signatory liable for obligations imposed by an agreement, while at the same time repudiating the arbitration clause of that very agreement.”

 

 

Under California law, warranty terms are not part of a sales contract where the manufacturer is not a party to the contract.

 

 

 

 

 

 

 

 

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Kanter Signals DOJ to Follow FTC Lockstep, Calls for Substantial Change to Competition Enforcement Approach

 

WRITTEN BY:
McDermott Will & Emery

Jonathan Kanter, the Assistant Attorney General (AAG) for the US Department of Justice (DOJ) Antitrust Division, believes that the Supreme Court of the United States’ 1992 opinion in Eastman Kodak v. Image Technology Services supports a change in approach because “[l]egal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law.

On the criminal side, the Procurement Collusion Strike Force (PCSF) has already brought multiple conduct cases. The PCSF brought a case in June 2021 against the Belgian security firm G4S Secure Solutions NV, which pled guilty for its role in a criminal conspiracy involving bid rigging of US Department of Defense (DoD) contracts.[12] In September 2021, the PCSF brought a case against Minnesota concrete contractors for bid rigging of repair and construction contracts.[13] As recently as March 10, 2022, the PCSF filed a second charge against Kamida Inc. and its CEO for involvement in the same bid rigging conspiracy for concrete repair and construction contracts. 

 

Kanter intends to reshape the Division, both in terms of resource allocation and approach to anticompetitive conduct, from a civil and criminal perspective.

 

 The Division intends to take a more aggressive stance on vertical merger enforcement, reformulate the Horizontal and Vertical Merger Guidelines to better reflect market realities (in the government’s view), enter into fewer consent decrees and instead litigate cases to generate judicial opinions and advance the relevant case law, and bring more civil and criminal conduct cases.

 

Consent decrees have become disfavored because, in Kanter’s view, partial divestitures can still result in “concentration creep” in situations where the divested assets are acquired by a buyer that will not effectively deploy them, thus allowing the former owner to continue coalescing market power.

 

Vertical mergers may not eliminate horizontal competitors, but Kanter argued that vertical integration and efficiencies of scale derived from these deals can just as effectively create monopolies.

 

Kanter indicated that investigating improper conduct in government procurement is a top Division priority.

 

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SDNY Rules Non-Signatories to Agreement May Compel Signatory to Arbitrate Issues of Arbitrability

 

WRITTEN BY:

Carlton Fields

The court read two Second Circuit decisions as creating or implying a two-part inquiry: first, the court must decide whether the arbitration agreement permits or precludes invocation by non-signatories; and second, the court must decide whether a threshold of “relational sufficiency” exists between and among the parties to the dispute and the arbitration clause.

Plaintiffs, the Republic of Kazakhstan and Outrider Management LLC, filed suit in New York state court claiming the defendants conspired to obtain a fraudulent international arbitral award against them of nearly $500 million.

The court therefore held that the defendants may compel Outrider to submit the arbitrability of its claims to the arbitrator.