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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. |
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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.” |
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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. |
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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.” |
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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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An article title |
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WRITTEN
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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. |
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Kanter
intends to reshape the Division, both in terms of resource allocation and
approach to anticompetitive conduct, from a civil and criminal perspective. |
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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. |
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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. |
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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. |
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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:
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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. |
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The
court therefore held that the defendants may compel Outrider to submit the
arbitrability of its claims to the arbitrator. |