3/10. The Department of Justice (DOJ) filed a criminal information in U.S. District Court (NDCal) that charges Hitachi Displays Ltd. with price fixing in violation of 15 U.S.C. § 1, in connection with its fixing prices of thin film transistor liquid crystal display panels sold to Dell.

The DOJ also announced in a release that "Hitachi Displays Ltd., agreed to plead guilty and pay a $31 million fine".

This is another in a series of cases involving LCD makers. See, stories titled "DOJ Brings and Settles Criminal Price Fixing Actions Against LCD Makers" in TLJ Daily E-Mail Alert No. 1,855, November 11, 2008, and "DOJ Obtains TFT-LCD Price Fixing Indictment" in TLJ Daily E-Mail Alert No. 1,890, February 3, 2009.

This information states that "From on or about April 1, 2001 to on or about March 31, 2004, defendant and its coconspirators entered into and engaged in a combination and conspiracy in the United States and elsewhere to suppress and eliminate competition by fixing the prices of thin-film transistor liquid crystal display panels (``TFT-LCD´´) sold to Dell Inc. or its subsidiaries (``Dell´´) for use in desktop monitors and notebook computers."

15 U.S.C. § 1, provides that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court."

Scott Hammond, the acting Assistant Attorney General (AAG) in charge of the DOJ's Antitrust Division, stated in the DOJ's release that "Hitachi joins three other multinational companies who have admitted to their involvement in fixing prices for LCD panels sold to U.S. companies and that have already paid criminal fines totaling more than $585 million".

He added that "This case should send a strong message to multinational companies operating in the United States that when it comes to enforcing the U.S. antitrust laws we mean business."

Hammond is a caretaker AAG. President Obama has nominated Christine Varney to be the AAG for the Antitrust Division. The Senate Judiciary Committee (SJC) held a hearing on her nomination on March 10, 2009.

While political appointees of former President Bush and President Obama differ on some antitrust issues, both share a commitment to pursuing price fixing conspiracies as violations of U.S. antitrust laws.

See, related story in this issue titled "Senate Judiciary Committee Holds Varney Confirmation Hearing".

This case is US v. Hitachi, U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. CR 09-0247 MHP.

3/10. The Senate Judiciary Committee (SJC) held a hearing for several of President Obama's nominees, including Christine Varney, to be Assistant Attorney General in charge of the Antitrust Division.

Varney wrote in her prepared testimony that "we must rebalance legal and economic theories in antitrust analysis and enforcement".

She also wrote that "we need renewed collaboration between the Antitrust Division and the FTC, whose policies and processes have unfortunately diverged too frequently in recent years. Policy disputes and jurisdictional squabbles between agencies with overlapping enforcement mandates lead to uncertainty for consumers, business, and for overseas' antitrust enforcers who look to the US for consistent guidance".

She also wrote that "we must continue our cooperation with worldwide antitrust authorities, discussing our differences with international enforcers respectfully and engaging with emerging antitrust regimes such as China and India as they implement new antitrust laws."

She used the phrase "protecting competition and thus consumers". The Supreme Court and recent Republican appointees have understood that the goal of antitrust law is to promote consumer welfare, and that the goal is not to protect competitors, which is sometimes the outcome of European antitrust actions.

Varney also stated that "I hope to build upon the broad bipartisan consensus that competition -- protected by the antitrust laws -- is essential. ... I will work diligently and act decisively to thwart those who would reduce competition and harm American consumers. I will work collaboratively with other antitrust enforcers in the US and overseas."

David Balto of the Center for American Progress argued in his prepared testimony that antitrust policy should change. He worked at the FTC during the Clinton administration, including as an advisor to former FTC Chairman Robert Pitofsky.

He wrote that in the Bush administration the Antitrust Division "embraced a minimalist course, largely trying to reduce the scope of enforcement and the use of antitrust in private litigation. This minimalist approach was based in significant part on the ``Chicago School´´ theory that antitrust enforcement more often makes mistakes and markets almost always lead to the best result."

He continued that "Over the past eight years, the Division brought no enforcement actions against dominant firms; went more than five years without bringing a merger challenge in federal court; adopted an amicus program that sought almost exclusively to narrow the scope of antitrust law; and adopted an unnecessarily adversarial attitude toward other enforcement officials, especially its sister antitrust agency, the FTC."

Balto said that "This has to change."

He also discussed "telecommunications". He wrote that "On the one hand, antitrust authorities have allowed a long series of mergers that resulted in the effective resurrection of the Ma Bell monopoly on a regional basis. At the same time the FCC’s implementation of the Telecommunications Act of 1996 has failed to open the local market to effective competition. On the other hand, the courts have said that the existence of regulation precludes claims of anticompetitive conduct."

He added that "intermodal competition has proven to be far less effective than head-to-head competition in disciplining market power".

He also criticized the Supreme Court's 2004 opinion in Verizon v. Trinko, 540 U.S. 398. See, story titled "Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko" in TLJ Daily E-Mail Alert No. 815, January 14, 2004.

3/13. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in FTC v. Stefanchik, a case regarding the Federal Trade Commission's (FTC) civil enforcement authority under Section 5 of the FTC Act and the Telemarketing Sales Rule (TSR).

Section 5 is codified at 15 U.S.C. § 45(a). It provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful".

The FTC filed a civil complaint in U.S. District Court (NDCal) against John Stefanchik and others in connection with their marketing and sale of products associated with a get rich quick method -- buying and selling privately held mortgages.

The FTC presented as evidence results of a survey that showed that very few purchasers made money from this method. It argued that this Stefanchik program deceived consumers as to earning potential.

The District Court granted summary judgment to the FTC.

The Court of Appeals affirmed. It held that under Section 5 "Deception may be found based on the ``net impression´´ created by a representation", and that the FTC is "not required to show that all consumers were deceived". The Court of Appeals made a similar holding as to violation of the TSR.

This opinion also addresses the liability of individuals acting on behalf of a corporation.

The Court of Appeals also affirmed a restitution award of over $17 Million that was based upon the amount of sales.

This case is FTC v. John Stefanchik, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-35359, an appeal from the U.S. District Court for the Western District of Washington, D.C. No. C-04-1852-RSM, Judge Ricardo Martinez presiding. Judge Thomas Reavley (5thCir) wrote the opinion of the Court of Appeals, in which Judges Richard Tallman and Milan Smith joined.

3/13. President Obama announced his intent to nominate Tom Perez to be Assistant Attorney General (AAG) in charge of the Civil Rights Division (CRD). See, White House news office release.

Perez is currently the head of the state of Maryland's Department of Labor, Licensing and Regulation (DLLR). He worked in the CRD during the Clinton administration. He has also worked for Sen. Ted Kennedy (D-MA).

The CRD has responsibilities with respect to enforcement of the Americans with Disabilities Act (ADA). The CRD during the Clinton and Bush administrations largely evaded taking definitive positions or actions with respect to whether web site operators and software developers are regulated by the ADA.

Over the last three decades the President's CRD AAG selection has been one of the most controversial, although for reason unrelated to information technology.

3/13. The National Telecommunications and Information Administration (NTIA) issued a release [PDF] that provides further details about its upcoming series of hearings regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February. These programs are also known as the Broadband Technology Opportunities Program (BTOP). The just issued release updates the notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721.

3/13. The Federal Communications Commission (FCC) adopted and released an order [46 pages in PDF] titled "Third Report and Order and Order on Reconsideration" in its proceedings related to its attempts to plan consumers' and broadcasters' transition from analog to digital television. This item is FCC 09-19 in MB Docket Nos. 09-17, 07-148, 07-91, and 05-312.

3/12. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in the U.S. District Court (CDCal) against Quest Software, and current and former officers, alleging violation of federal securities laws in connection with alleged backdating of stock options. The SEC also announced in a release that "Quest has agreed to settle the SEC's charges, and the three executives have agreed to pay more than $300,000 combined to settle the allegations against them". This case is SEC v. Quest Software, U.S. District Court for the Central District of California, D.C. No. SACV09-0315 AG MLGx.

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This issue contains the following items:
 • DOJ Brings Another LCD Price Fixing Action
 • Senate Judiciary Committee Holds Varney Confirmation Hearing
 • 9th Circuit Considers Use of FTC Act and TSR to Shut Down Fraudulent Telemarketers
 • Obama Selects Tom Perez to Head Civil Rights Division

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for week of March 16, and schedule for March 16.

The Senate will meet at 2:00 PM. It will resume consideration of the motion to proceed to HR 146 [LOC | WW], the vehicle for the omnibus lands bill.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in National Association of Broadcasters v. FCC, App. Ct. No. 08-1117. Judges Rogers, Garland and Brown will preside. See, FCC's brief [74 pages in PDF] states that the issues are "Whether the FCC's adoption of policies and rule changes to minimize unnecessary displacement of existing LPFM radio stations by new full-power FM stations or FM stations seeking license modifications is prohibited by the Radio Broadcasting Preservation Act", and "Whether these policies and rule changes are reasonable." Location: 333 Constitution Ave.

10:00 AM. The National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) will hold the first in a series of meetings regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721. Location: Department of Commerce, 1401 Constitution Ave., NW.

Day one of a two day conference hosted by the Federal Trade Commission (FTC), Asia-Pacific Economic Cooperation (APEC) forum and the Organisation for Economic Co-operation and Development (OECD) titled "Securing Personal Data in the Global Economy". See, FTC release and release, and agenda [PDF]. Location: FTC satellite building, 601 New Jersey Ave., NW.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the OUSTR's complaint to the World Trade Organization (WTO) regarding certain measures offering grants, loans, and other incentives to enterprises in the People's Republic of China to implement an industrial policy of promoting the development of global Chinese brand names. See, notice in the February 17, 2009, Vol. 74, No. 30, at Pages 7494-7497.

St. Patrick's Day.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Hoyer's schedule for week of March 16.

8:00 AM. The Secure Enterprise Network Consortium (SEN-C) will host an event titled "Cyber Security Breakfast Event". The keynote speaker will be Rep. Jeff Miller (R-FL). See, notice. For more information, contact Dominique Rougeau at 312-607-1811. Location: 4th Estate Restaurant, National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Homeland Security will hold a hearing titled "Interoperable Communications". Ths HAC will webcast this event. Location: Room 2359, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Stimulating the Economy through Trade: Examining the Role of Export Promotion". See, notice. Location: Room 2322, Rayburn Building.

The Senate Finance Committee (SFC) will hold a hearing titled "Update on Offshore Tax Evasion Legislation". Location: Room 215, Dirksen Building.

10:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host panel discussion titled "Anchor Allies Adrift: Can the United States Depend on Japan and Great Britain?". The speakers will be Michael Auslin (AEI), Ted Bromund (Heritage Foundation), Thomas Donnelly (AEI), and Paul Wolfowitz (AEI). See, notice. Location: AEI, 1150 17th St., NW.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "in silico: How IT is Changing Medical Research". The speakers will be Ken Buetow (National Cancer Institute's Center for Bioinformatics), Lynn Etheredge, and Nancy Johnson (Health IT Now Coalition). See, notice. Location: Room B-318, Rayburn Building.

Day two of a two day conference hosted by the Federal Trade Commission (FTC), Asia-Pacific Economic Cooperation (APEC) forum and the Organisation for Economic Co-operation and Development (OECD) titled "Securing Personal Data in the Global Economy". See, FTC release and release, and agenda [PDF]. Location: FTC satellite building, 601 New Jersey Ave., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of March 16.

9:00 AM - 5:00 PM. Day one of a two day hearing of the Federal Trade Commission (FTC) titled "The Operation of IP Markets". At 9:00 - 10:30 AM there will be a panel titled "Universities and Entrepreneurs". At 10:45 AM - 12:15 PM, there will be a panel titled "IT and Electronics Industries". At 1:45 - 3:15 PM, there will be a panel titled "Manufacturing and Diversified Companies". At 3:30 - 5:00 PM, there will be a panel titled "Biotech and Pharmaceutical Industries". See, notice and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nomination of Gary Locke to be Secretary of Commerce. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "The Need to Strengthen Forensic Science in the United States: The National Academy of Science's Report on a Path Forward". See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 2:00 PM. The American Enterprise Institute (AEI) will host an event titled "Can Health IT Improve Medical Care?" There will be a panel discussion at 10:00 AM. The speakers will be Leah Binder (Leapfrog Group), Joseph Swedish (Trinity Health), Stephen Parente (University of Minnesota), Benjamin Sasse (University of Texas), and Joseph Antos (AEI). At 12:00 NOON, lunch will be served. The speaker will be David Snow (Medco). See, notice. Location: AEI, 1150 17th St., NW.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) will host an event titled "From Deployment to Employment: Broadband Challenges and Opportunities Surrounding Implementation of the Stimulus Package". The speakers will be Matt Chase (National Association of Development Organizations), Debbie Goldman (Communications Workers of America), and Raquel Noriega (Connected Nation). Location: 10th floor, 919 18th St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association (FCBA) will hold a closed brown bag lunch titled "Telecommunications Issues and Advocacy at Agencies Other than the FCC". For more information, contact Megan Stull at mstull at willkie dot com. Location: Willkie Farr & Gallagher, 1875 K St., NW.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media and Young Lawyers Committees will host an event titled "Happy Hour". For more information, contact Adam Thomas at wadamthomas at gmail dot com. Location: Lounge 201, 201 Massachusetts Ave.,  NE.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of March 16.

9:00 AM - 5:00 PM. Day two of a two day hearing of the Federal Trade Commission (FTC) titled "The Operation of IP Markets". At 9:30 - 11:30 AM, there will be a panel titled "Economic Perspectives on IP and Technology Markets". At 1:00 - 5:15 PM, there will be a panel titled "Fulfilling the Patent System's Public Notice Function". See, notice and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Intercollegiate Broadcasting System v. Copyright Royalty Board, App. Ct. No. 07-1123. Judges Sentelle, Rogers and Griffith will preside. Location: 333 Constitution Ave.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Homeland Security will hold a hearing titled "Biometric Identification". Location: Room 2362-B, Rayburn Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services will hold a hearing titled "The Judiciary Budget". Location: Room 2220, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of the nomination of Dawn Johnson to be Assistant Attorney General in charge of the Office of Legal Counsel (OLC). It also includes consideration of S 515, the "Patent Reform Act of 2009". The SJC rarely follows is agendas. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Cybersecurity: Assessing Our Vulnerabilities and Developing an Effective Defense". See, notice. Location: Room 253, Russell Building.

10:00 AM. The National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) will hold the second in a series of four meetings regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721. Location: Department of Commerce, 1401 Constitution Ave., NW.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "Follow the Money: Accountability and Transparency in Recovery Act Science Funding". See, notice. Location: Room 2318, Rayburn Building.

2:00 - 6:00 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee and the American Bar Association's (ABA) Forum on Communications Law will host an event titled "4th Annual ABA/FCBA Privacy & Data Security for Communications and Media Companies CLE". For more information, contact Jenell Trigg at STrigg at lermansenter dot com or 202-416-1090) or Bryan Tramont at BTramont at wbklaw dot com or 202-383-3331. Registrations are due by 12:00 NOON on February 17. Location: Wiley Rein, 1776 K St., NW.

Rep. Hoyer's schedule for week of March 16 states that no votes are expected in the House.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will hold a brown bag lunch titled "Roundtable discussion with FCC and NTIA Technical Offices". The speakers will be Edward Davison (Deputy Chief of the NTIA's Office of Spectrum Management), Julius Knapp (Chief of the FCC's Office of Engineering and Technology), Karl Nebbia (Chief of the NTIA's OSM), and Ronald Repasi (Deputy Chief of the FCC's OET). For more information, contact Christy Hammond at 202-719-7365 or chammond at wileyrein dot com. Location: Wiley Rein, 10th floor, 1750 K St., NW.

1:00 - 2:30 PM. The Center for American Progress (CAP) will host a panel discussion titled "Opening Doors: Finding the Keys to Open Government". The speakers will be Ari Schwartz (Center for Democracy and Technology), Patrice McDermott, Dan Chenok, Katherine McFate, and Beth Noveck (New York law school). See, notice. Location: CAP, 10th floor, 1333 H St.,  NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 79. This is proceeding is AU Docket No. 09-21 (122 FM broadcast construction permits). See, February 27, 2009, Public Notice (DA 09-422), and notice in the Federal Register, March 11, 2009, Vol. 74, No. 46, at Pages 10578-10581.

9:30 - 11:00 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Do or Die for the Doha Trade Talks". The speakers will be Claude Barfield (AEI), Aaditya Mattoo (World Bank), Christopher Padilla (C&M International), Robert Vastine (Coalition of Service Industries), and Philip Levy (AEI). See, notice. Location: AEI, 1150 17th St., NW.

9:30 AM - 1:30 PM. The New America Foundation (NAF) and the CTIA will host an event titled "The Wireless Future of Health IT". The speakers may include Craig Barrett (Intel), Thomas Kalil (Associate Director for Policy, White House Officer for Science and Technology Policy), Vince Kuraitis (Better Health Technologies), Max Stachura (Medical College of Georgia), Paul Meyer (Voxiva, Inc.), Douglas McClure (Center for Connected Health Care), Carolyn Brandon (CTIA), Julie Barnes (NAF), and Michael Calabrese (NAF). Lunch will be served. See, NAF notice. Location: Room G-106 Dirksen Building, Capitol Hill.

10:00 AM. The National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) will hold the third in a series of four meetings regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721. Location: Department of Commerce, 1401 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host an event titled "Tax Havens Should be Celebrated, Not Persecuted". The speakers will be Daniel Mitchell, author of book [Amazon] titled "Global Tax Revolution: The Rise of Tax Competition and the Battle to Defend It", and Richard Rahn, a former member of the Cayman Islands Monetary Authority. See, notice. Location: Room B-340, Rayburn Building, Capitol Hill.