Wednesday, August 15, 2018

Attorney K Todd Wallace successfully moves federal court case from Louisiana to Client Home State of Texas


Attorney K Todd Wallace successfully moves federal court case from Louisiana to Client Home State of Texas

U.S District Court for the Eastern District of Louisiana found that individual living and working in Texas does not have sufficient minimum contacts with Louisiana

New Orleans, LA (August 2018) - The law firm Wallace Meyaski LLC announced today that attorney Kenneth Todd Wallace was able to successfully move a federal court case to his client’s home state of Texas.  Judge Eldon E. Fallon of the Eastern District of Louisiana ordered that this case (Security Data Supply, LLC et al v. Nortek Security and Control, LLC et al) be transferred to the United States District Court for the Northern District of Texas.

Comments K. Todd Wallace: “This order is of crucial importance in this case in that the Court properly concluded that it does not have personal jurisdiction over an individual client who lives and works in another state. Instead, to continue a lawsuit against him, it must be pursued in his home state of Texas.”

In this case, Plaintiffs Security Data Supply, LLC (“SDS”), and its franchise locations, brought claims for antitrust and price discrimination violations and violations of state laws in Louisiana, Texas, and California. While SDS is a wholesale distributor of electronic security systems and sells these systems through franchise retail locations, SDS filed antitrust and price discrimination claims against Defendants Nortek Security and Control (“Nortek”), Wave Electronics, Inc. (“Wave”), and Mr. Earnest Bernard. Nortek is a manufacturer of electronic security systems; Wave is a wholesale distributor of electronic security systems in competition with while E.B. is a former sales representative.

SDS and Wave sell Nortek products in direct competition with each other.  SDS alleges that while E.B. was employed at Nortek, he provided Wave with preferential pricing on Nortek products to the exclusion of Wave’s competitors. SDS further alleges that Nortek sold identical products to SDS and Wave but intentionally discriminated in price, providing a lower price to Wave through a “Four Star Program,” a type of rebate program. SDS believes that this program allowed Wave to sell Nortek products at a lower price than SDS could purchase them. SDS also alleges that Nortek management was aware of this preferential pricing scheme and allowed it to continue long after E.B. left the company. The defedants, including E.B., has denied these unfounded allegations throughout the litigation. SDS alleges that they have been been injured and SDS has lost at least 59 clients and $9.5 million per year. Therefore, SDS bring claims against Defendants for violations of the Robinson-Patman Act (“RPA”) (15 U.S.C. §13(a), (c), (d), (f)), and state law claims of corporate bribery and violations of state trade practices acts.

E.B sought to dismiss all claims against him, in part, based upon a lack of personal jurisdiction in a Louisiana federal court. Judge Eldon E. Fallon of the Eastern District of Louisiana found that Mr. B. is an individual residing in the state of Texas.  The Court noted that, since he was an employee of Nortek and worked in Texas, therefore, the Eastern District of Louisiana does not have general jurisdiction over him. Additionally, the Court found that Plaintiffs did not allege in their complaint that Mr. B. traveled to, or acted in, or directed any other actions within the state of Louisiana. Therefore, Mr. B. lacked sufficient contacts with Louisiana that would allow the Louisiana Court to exercise specific jurisdiction over him.

Mr. Wallace states, “as you can imagine we are very pleased that the Court properly considered the arguments we presented that Mr. B. lacks sufficient minimum contacts with Louisiana necessary to force a non-resident to defend himself in another state. If this case is to continue, Texas is the only appropriate venue.”

About K. Todd Wallace, Attorney in New Orleans

Mr. Wallace has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, employment law compliance, government relations, mergers and acquisitions, and team building.  He received his Juris Doctor, cum laude, from Loyola University College of Law, New Orleans, LA and while at Loyola, he served as the Managing Editor of the Loyola Law Review, and as a member of the William C. Vis International Commercial Arbitration Team. Before law school, he received his Bachelor of Arts, Political Science, from the University of North Carolina, Chapel Hill, NC.

The underlying court case is at https://law.justia.com/cases/federal/district-courts/louisiana/laedce/2:2017cv10578/204023/62/
 


*** K. Todd Wallace is an attorney at Wallace Meyaski in New Orleans. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. See http://www.walmey.com/our-attorneys/k-todd-wallace/

K Todd Wallace, New Orleans Law Firm Wallace Meyaski, LLC offers unique "fixed fee" General Counsel services for small and mid-sized companies

New Orleans Law Firm Wallace Meyaski, LLC offers unique "fixed fee" General Counsel services for small and mid-sized companies

Affords small and mid-sized companies on a budget access to legal advice without large retainer of hourly billings

New Orleans, LA (August 2018). The New Orleans Law Firm of Wallace Meyaski, LLC has announced that they are offering designated General Counsel legal services for an agreed-upon "fixed fee" for small and mid-sized companies. Given the increasing legal and regulatory complexity of today’s business environment, many companies are faced with the choice of either committing more and more resources to pay escalating outside counsel fees, or of taking on additional headcount and the associated costs and expenses to build an in-house legal and/or human resource team.
Explains attorney K. Todd Wallace: “We set out to find a way to encourage our clients to contact us more regularly, to involve us before an issue becomes a problem, and to depend upon our extensive experience in advising our corporate clients.  What we offer is a third and, hopefully, more appealing option: a cost-effective way to retain the services of experienced corporate attorneys on a fixed-fee basis to guide and advise a corporate client each step of the way.”
With the costs of legal fees soaring to all-time highs, the law firm understands that businesses are too often reluctant to call upon outside counsel for fear of uncertain and excessive legal bills. Of course, when businesses fail to address important legal, HR, and corporate issues on the front-end, the legal costs associated with cleaning up the mess can easily exceed five to six times the cost had the client simply brought a lawyer in early on.
The team at Wallace Meyaski offer this unique approach whereby the client pays an agreed-upon fixed monthly fee to serve as the client’s outsourced General Counsel. At the end of the day, this approach encourages businesses to use and rely on the firm as the “inside” counsel on a regular basis while, at the same time, providing the client with a fixed cost that that it can properly budget without having to worry about surprising and unexpected legal costs.  
K Todd Wallace adds, “we have developed a unique approach to helping small to medium size businesses who cannot afford to hire an in-house lawyer.  We offer to serve as a client’s General Counsel for a fixed-fee (monthly fee) based upon a defined bucket of services.” He went on to add “that in todays environment small to medium size business are the ones that are hurt the most impacted by the increasing legal and regulatory complexity of today’s business environment, because they are not properly represented.  We hope this offers a solution for that problem.”
Wallace Meyaski, LLC offers a wide array of general counsel outsourced services, including the following areas:
Human Resources and Employment Services
Wallace Meyaski, LLC brings over twenty years of broad experience in the area of labor and employment law and human resources.  As a result, they can provide you with day-to-day advice on how to handle every aspect of employee hiring, promotion, and termination and to implement policies and procedures to protect clients from unnecessary and costly litigation.
Commercial Contract Preparation and Review
As part of our monthly fee, the firm can draft new commercial contracts and review and revise any existing commercial agreements, including purchase and sale agreements, master service agreements, terms and conditions, commercial contracts, non-disclosure agreements, confidentiality agreements, employment-related contracts, consulting agreements, and property leases.

Corporate Succession and Corporate Governance
Wallace Meyaski, LLC recommend that companies regardless of size and scope take a good hard look at long-term business succession planning.  In the simplest terms, succession planning is a process whereby an organization ensures that employees at all levels are recruited, developed, and maintained to fill each key role within the company. Succession planning also anticipates and addresses issues that inevitably arise with any change in management and/or ownership to ensure a smooth transition and long-term success for the company. Through a proper succession planning process, businesses recruit superior employees, develop their knowledge, skills, and abilities, and prepare them for advancement or promotion into ever more challenging roles.
For additional information:

Wallace Meyaski, LLC
5109 Canal Blvd., Suite 102
New Orleans, LA 70124
(504) 644-2011

Mr. Kenneth Todd Wallace is an attorney and founding partner of the law firm Wallace Meyaski LLC. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, employment law compliance, government relations, mergers and acquisitions, and team building. 


*** K. Todd Wallace is an attorney at Wallace Meyaski in New Orleans. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. See http://www.walmey.com/our-attorneys/k-todd-wallace/

Sunday, August 12, 2018

K. Todd Wallace, European Court of Justice holds that a Parent Company can be liable for antitrust violations of a joint venture company


European Court of Justice holds that a Parent Company can be liable for antitrust violations of a joint venture company

In the following case, the European Court of Justice (ECJ) upholds parent company liability for Dow and DuPont in matters of the Chloroprene Rubber Cartel (Case No. 38629). On September 26, 2013, the ECJ dismissed appeals by The Dow Chemical Company and E.I. du Pont de Nemours and Company of the European Commission decision in the Chloroprene Rubber Cartel case.
A summary of the Judgment follows.

In its appeal, EI du Pont de Nemours and Company (‘EI DuPont’) asks the Court, [1] to set aside the judgment of the General Court of the European Union of 2 February 2012 in Case T-76/08 … and, secondly, [2] to annul the fine imposed on it by that decision.

[…] 3. “EI DuPont is the ultimate parent company of the DuPont group and has its headquarters in the United States. DuPont Performance Elastomers LLC (‘DPE LLC’) is a wholly-owned subsidiary of EI DuPont, and DuPont Performance Elastomers SA (‘DPE SA’’) is a wholly-owned subsidiary of DPE LLC. EI DuPont was the first undertaking to develop chloroprene rubber (‘CR’).” 

“It remained active on the CR market until 1 April 1996, when it transferred all its activities in the elastomers sector to DuPont Dow Elastomers LLC (‘DDE’), a joint venture held in equal shares by EI DuPont and The Dow Chemical Company (‘Dow’). On 1 July 2005 EI DuPont acquired the 50% share held by Dow in DDE. DDE then became a wholly-owned subsidiary of EI DuPont and was renamed DPE LLC. DPE LLC’s regional office for Europe is DPE SA, a wholly-owned subsidiary of DPE LLC.”

4. “On 27 March 2003 the Commission of the European Communities carried out inspections at the premises of, inter alia, Dow Deutschland Inc. On 21 November 2003, DDE applied for leniency in accordance with the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).”
5. “On 13 March 2007, the European Commission sent a statement of objections to 12 undertakings, including EI DuPont. On 5 December 2007, the Commission adopted an initial decision in which it took the view that, between 1993 and 2002 several producers of CR had participated in a single and continuous infringement of Article 81 EC and Article 53 of the European Economic Area Agreement of 2 May 1992 (OJ 1994, L 1, p. 3), covering the entire territory of the European Economic Area (EEA), consisting of agreements and concerted practices aimed at agreeing upon the allocation and the stabilisation of markets, market shares and sales quotas for CR, coordinating and implementing several price increases, agreeing upon minimum prices, allocating customers and exchanging competitively sensitive information. Those producers met on a regular basis several times a year in bilateral, trilateral and multilateral meetings.”
6. “In that decision, the Commission imputed liability for the cartel, in particular, to EI DuPont, DPE LLC, DPE SA and Dow, and ordered those undertakings to bring that infringement immediately to an end in so far as they had not already done so, and to refrain immediately from any restrictive practice having the same or similar object or effect.” […]
9. “As the participation in the infringement had lasted for nine years for EI DuPont, and six years and one month for DPE LLC, DPE SA and Dow, the Commission, in application of point 24 of the Guidelines on the method of setting fines, multiplied the starting amounts of the fines determined by reference to the value of sales by nine for EI DuPont, and by six and a half for DPE LLC, DPE SA and Dow.” […]
11. “Furthermore, the Commission considered that EI DuPont and Dow, as the parent companies of the joint venture DDE, should be held jointly and severally liable for the behaviour of that joint venture during the period from 1 April 1996 to 13 May 2002. In addition, it found that, as the successors to DDE, the entities DPE LLC and DPE SA should also be held jointly and severally liable for DDE’s conduct during that period, because, after the infringement was ended, they took over its activities on the CR market.”
12. “In the light of those factors, the basic amount of the fine to be imposed on EI DuPont was fixed at EUR 79 million, of which EUR 59 million was to be paid jointly and severally with DPE LLC, DPE SA and Dow.” […]
The procedure before the General Court and the judgment under appeal included the following.
18. “By application lodged at the Registry of the General Court on 15 February 2008, EI DuPont brought an action for annulment of Article 1(b) of the decision of 5 December 2007, in so far as it concluded that EI DuPont participated in the infringement, and of Article 2(b) of that decision requiring it to pay a fine, and, in the alternative, a reduction of the amount of the fine imposed on it by that decision. In that regard, it must be noted that in its reply EI DuPont reformulated its claims, pleas in law and arguments in the light of the amendments made by the Commission to the decision of 5 December 2007 by its amending decision of 23 June 2008. Therefore, that application was regarded as being directed against the decision of 5 December 2007, as amended; that is to say, the decision at issue.”
19. “In support of its action, EI DuPont raised six pleas in law. The first three, the only grounds which are relevant for the purposes of this appeal, alleged: (1) incorrect imputation of the infringement to EI DuPont during the period from 1 April 1996 to 13 May 2002 (‘the DDE period’); (2) breach of the rules on limitation; and (3) lack of a legitimate interest on the Commission’s part in addressing a decision to EI DuPont.”
20. “By its first plea, EI DuPont criticised in particular the Commission for finding that it had participated in the cartel during the DDE period and for wrongly holding it jointly and severally liable for DDE’s participation in that cartel during that period. Specifically, the Commission did not prove that EI DuPont had exercised decisive influence over DDE.”
21. “In that regard, the General Court pointed out, in paragraph 64 of the judgment under appeal, that EI DuPont did not contest its participation in a cartel in breach of Article 81 EC between 13 May 1993 and 31 March 1996. Similarly, it is clear from paragraph 64 that EI DuPont also did not contest DDE’s involvement in a cartel in breach of Article 81 EC during the DDE period, or the fact that that infringement was imputed to DPE LLC and DPE SA as the successors in title to DDE.”
22. “In paragraphs 70 to 73 of the judgment under appeal, the General Court reviewed the tests used by the Commission in the decision at issue to demonstrate that DDE’s parent companies did in fact exercise decisive influence over its conduct on the CR market.”
23. “The General Court stated in paragraph 74 of the judgment under appeal that, in the light of all the economic, legal and organisational links between EI DuPont and DDE, the Commission did not err in finding that EI DuPont, as one of DDE’s two parent companies, had exercised decisive influence over its conduct on the CR market.”

“The Commission did not therefore err in finding that EI DuPont and DDE formed a single undertaking for the purposes of Article 81 EC and in holding EI DuPont jointly and severally liable for DDE’s conduct during the DDE period.”
24. “In paragraphs 76 to 82 of the judgment under appeal, the General Court dismissed EI DuPont’s arguments which could have called into question its finding concerning EI DuPont’s exercise of decisive influence over DDE. Consequently, in paragraph 83 of the judgment under appeal, the General Court dismissed the first plea in law.”
25. “By its second plea in law, EI DuPont alleged that the Commission infringed the rules on limitation periods by imposing on it a fine for the period from 13 May 1993 to 31 March 1996 (the period before the DDE period). It argued that imposing such a fine, in the circumstances of this case, contravened the principles of legal certainty and legitimate expectations as the limitation period of five years expired on 31 March 2001.”
26. “In dismissing that plea as unfounded, the General Court stated in paragraphs 87 and 88 of the judgment under appeal that it was clear from the analysis of the first plea that the Commission had rightly taken the view that EI DuPont should be held jointly and severally liable for DDE’s conduct during the DDE period. In addition it stated that the applicants, including EI DuPont, had not contested the characterisation of the infringement committed between 13 May 1993 and 13 May 2002 as single and continuous.”
“The General Court therefore concluded that, contrary to what the applicants argued, the infringement committed by DDE did not end on 31 March (or 1 April) 1996 and that the Commission could therefore impose a fine on EI DuPont for the entire period during which that infringement was committed, including the period before the DDE period.”
27. “By its third plea, EI DuPont claimed that, since the right of the Commission to impose a fine was time-barred, the Commission had to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont.”
28. “The third plea was dismissed as unfounded in paragraphs 91 to 93 of the judgment under appeal. The General Court held in particular in paragraph 92 of that judgment that the Commission could impose a fine on EI DuPont for the entire period in which the infringement was committed, including the period before the DDE period. Therefore, in the opinion of the General Court, the Commission did not have to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont.”
29. “Having rejected the fourth to sixth pleas in law as being similarly unfounded, the General Court dismissed the action in its entirety.”
30. “EI DuPont claims that the Court of Justice should: - set aside the judgment under appeal; and - order the Commission to pay the costs.” […]
32. “EI DuPont puts forward three grounds in support of its appeal. By the first ground of appeal, it claims: [1] that the General Court erred in law in imputing to it the infringement committed by DDE for the DDE period and in relation to its joint and several liability with Dow. By the second ground of appeal, [2] it contests the finding in the judgment under appeal that the Commission was not prevented, on account of the limitation period, from imposing fines on EI DuPont for the period before the DDE period; that is to say, from 13 May 1993 to 31 March 1996. The third ground of appeal [3] alleges an error of law committed by the General Court in that it did not find that the Commission had failed to demonstrate that it had a legitimate interest in taking a decision against EI DuPont.”
The first ground of appeal: error of law committed by the General Court in that it imputed the infringement to EI DuPont and held it jointly and severally liable with Dow
[…] 38. “As regards the admissibility of the first ground of appeal, it must be stated that, contrary to what the Commission contends, EI DuPont does not dispute the General Court’s findings of fact, but the inferences in law drawn by the General Court from those findings in relation to DDE’s lack of autonomy in order to determine the actual exercise of decisive influence. It follows that this ground of appeal is admissible.”
39. “With regard to the substance, EI DuPont claims, in essence, that by confirming in paragraph 74 of the judgment under appeal that EI DuPont had exercised decisive influence over DDE’s conduct on the CR market, the General Court erred in law with regard to the imputation of the infringement jointly and severally with Dow during the DDE period.”
40. “In that regard, it is clear from paragraphs 74 and 79 of the judgment under appeal that the General Court held that EI DuPont formed a single undertaking with DDE by reason of the decisive influence which it exercised over DDE’s conduct on that market.”
41. “It should be pointed out first of all that, in accordance with the settled case-law of the Court of Justice, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, regard being had in particular to the economic, organisational and legal links between those two legal entities (See Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237, paragraphs 58 and 72, and Joined Cases C-628/10 P and C- 14/11 P Alliance One International and Standard Commercial Tobacco v. Commission and Commission v Alliance One International and Others [2012] ECR I-0000, paragraph 43).”
42. “In such a situation, because the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement …”
43. “The Court of Justice has also stipulated that account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot, therefore, be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission, paragraph 74, and Case C-521/09 P and Elf Aquitaine v Commission [2011] ECR I- 8947, paragraph 58).”
44. “In paragraphs 58 to 60 of the judgment under appeal, the General Court therefore cited the case-law setting out the test for imputing to a parent company the competition infringement committed by its subsidiary. It rightly found that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (see, to that effect, Case 107/82AEG-Telefunken v Commission [1983] ECR 3151, paragraph 50).”
45. “It should be noted in that regard that the rule that it is necessary to check whether the parent company actually exercised decisive influence over its subsidiary applies only where the subsidiary is not wholly owned by its parent company. According to the settled case-law of the Court of Justice, where the entire capital of the subsidiary is owned, there is no longer any requirement to carry out such a check since, in those circumstances, there is a presumption of decisive influence on the part of the parent company, which has the burden of rebutting that presumption (see Alliance One International and Standard Commercial Tobacco v. Commission [passim] and Commission v. Alliance One International and Others, paragraphs 46 and 47 and the case-law cited).”
46. “More specifically, with regard to the claim that the General Court misconstrued the term ‘a single undertaking’, it must be stated that, in paragraph 58 of the judgment under appeal, the General Court pointed out that, according to the settled case-law of the Court of Justice, in competition law the term ‘undertaking’ must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case-170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987, paragraph 40; and Akzo Nobel and Others v. Commission, paragraph 55).”
47. “Where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC.”
48. “It must therefore be held that, as regards the verification process of the assessment carried out by the Commission, the General Court did not misconstrue the term ‘a single undertaking’.”
49. “EI DuPont, in support of its first ground of appeal, also relies on other arguments, …first, that it cannot exercise decisive influence over DDE bearing in mind that DDE has separate legal personality from that of the parent companies; and secondly, that, since the joint control exercised by parent companies over their full-function joint venture gives them only a negative power to block the latter’s strategic decisions, that control cannot imply the existence of the parent company’s decisive influence over the subsidiary.”
“In that regard, it must be noted that the General Court did not find the existence of EI DuPont’s decisive influence over the subsidiary solely on the basis of the possibility that the parent companies could exercise joint control over that subsidiary, but that it relied on its own assessment of the economic, organisational and legal factors which tied DDE to its two parent companies, as determined by the Commission in its decision of 5 December 2007.”
50. “In that regard, suffice it to state that, since the Commission found that Dow exercised a decisive influence over DDE’s conduct on the basis of factors which, unless they have been distorted, cannot be called into question on appeal, those claims must be held to be unfounded.”
51. “As regards EI DuPont’s argument, … that the fact that parent companies are deemed to exercise joint control in accordance with the EC Merger Regulation does not mean that they incur liability under Article 81 EC by reason of the conduct of the joint venture, it must be pointed out that, as is clear from the case-law cited …above, the evidence of such influence must be assessed having regard to all the economic, organisational and legal links between the subsidiary and the parent company.”
52. “In this case, the General Court concluded from all the evidence, in particular the control exercised by DDE’s two parent companies over its strategic business decisions, that those companies did in fact exercise decisive influence. Accordingly, it rightly pointed out in paragraph 78 of the judgment under appeal that the autonomy which a joint venture enjoys within the meaning of Article 3(4) of the EC Merger Regulation does not mean that that joint venture also enjoys autonomy in relation to adopting strategic decisions, and that it is therefore not under the decisive influence of its parent companies for the purposes of Article 81 EC.”
53. “Consequently, it must be stated that, contrary to what EI DuPont claims, the General Court’s finding in … the judgment under appeal relating to the single nature of the undertaking in the light of competition law, is not incompatible with the EC Merger Regulation, and therefore does not lead to a misleading and inconsistent application of competition law.”
54. “It follows that the first ground relied on by EI DuPont in support of its appeal must be rejected as unfounded.”
The second ground of appeal: error of law committed by the General Court in that it held that the Commission was not prevented, on account of the limitation period, from imposing fines on EI DuPont for the period from 13 May 1993 to 1 April 1996
57. “It must be stated at the outset that the plea of inadmissibility raised by the Commission in relation to the second ground relied on by EI DuPont in support of its appeal, alleging that EI DuPont merely reproduced the arguments put before the General Court, cannot be upheld.”
58. “In that regard, it must be noted that, where a party challenges the interpretation or application of European Union law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if a party could not base its appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C-234/02 P European Ombudsman v. Lamberts [2004] ECR I-2803, paragraph 75, and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533, paragraph 116).”
59. “With regard to the substance, it must be pointed out that that ground of appeal is based on the assumption that the first ground of appeal would be upheld in the absence of any proof that the DuPont group was involved in the cartel during the DDE period. [I]t is clear from the analysis of the first ground of appeal, however, that the reasoning followed by the General Court in paragraphs 64 to 83 of the judgment under appeal is not vitiated by any error of law.”
60. “Consequently, the General Court did not err in law by holding in paragraph 87 of the judgment under appeal that the limitation period had not expired when the Commission imposed the fine on EI DuPont.”
61. “The second ground relied on by EI DuPont in support of its appeal must therefore be rejected as unfounded.”

The third ground of appeal: error of law committed by the General Court in that it did not find that the Commission had failed to demonstrate that it had a legitimate interest in taking a decision against EI DuPont
64. “As regards the admissibility of the third ground of appeal, it must be pointed out that, as is clear from the settled case-law of the Court of Justice cited in paragraph 58 above, this ground must be declared admissible because, through it, EI DuPont alleges that the General Court incorrectly interpreted European Union law.”
65. “With regard to the substance, the third ground is also based on the assumption that the first and second grounds relied on in support of this appeal would be upheld. It amounts to a claim that, since the Commission could not impose a fine on EI DuPont on account of the limitation period, it had to demonstrate a legitimate interest in adopting a decision against EI DuPont.”
66. “Since the first and second grounds of appeal have been rejected, it necessarily follows that the third ground of appeal must be rejected as unfounded.”
67. “As none of the grounds relied on by EI DuPont in support of its appeal can be upheld, the appeal must be dismissed in its entirety.”

“On those grounds, the Court (Ninth Chamber) hereby: 1. Dismisses the appeal; 2. Orders EI du Pont de Nemours and Company to pay the costs. [Signatures].”

Citation: E.I. du Pont de Nemours v Commission, JUDGMENT OF THE EUROPEAN UNION COURT OF JUSTICE (Ninth Chamber) of 26 September 2013 in Case C-172/12; Celex No. 612CJ0172, European Court Reports 2013 page _____ (regarding Infringement of Article 81 EC).


*** K. Todd Wallace is an attorney at Wallace Meyaski in New Orleans. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. See http://www.walmey.com/our-attorneys/k-todd-wallace/