Newsletter | February 2014, Issue 1
	ANTITRUST & COMPETITION
	Supreme Court dismisses KFTC’s appeal on online music providers’ unlawful collusion
	Several administrative lawsuits were filed to challenge the Korea Fair Trade Commission’s (“KFTC”) corrective order and penalty surcharge issued on June 29, 2011 on alleged unlawful collusion of 13 online music providers.  On November 14, 2013, the Supreme Court affirmed the judgment of the lower court that reversed the KFTC’s original disposition for two of the plaintiffs that were online music providers, holding that there was insufficient evidence of collusion.
	The Supreme Court held the following:
	“Unfair Collusive Practice” prohibited under Article 19 (1) of the Monopoly Regulation and Fair Trade Law (“FTL”) is defined as “agreeing to an act that unfairly restricts competition.” While “agreement” under this provision includes both explicit and implied agreements, parallel behavior does not in and of itself prove the existence of an unlawful agreement, but rather, the KFTC must show evidence of the alleged cartel participant’s collusive intent.
	Around the time when the alleged collusive agreement took place (i.e., the agreement among the online music providers to provide music to Non-DRM packages only that offered unlimited number of songs), the plaintiffs did not participate in the meeting with other online music providers.  Furthermore, there was no evidence that the plaintiffs exchanged their intent to collude with other online music providers.  In addition, the Supreme Court found it plausible that plaintiffs independently decided to provide music to Non-DRM packages with limited number of songs based on the market situation.
	The Supreme Court found that there was insufficient evidence that the plaintiffs agreed to collude with other online music providers, affirming the lower court’s findings.  Kim & Chang represented one of the two online music providers in this favorable Supreme Court decision.
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