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U.S. Antitrust Chief Sees Need for Convergence on Single-Firm Conduct

The fall conference season is in full swing. Just this week, top officials from the federal antitrust agencies are speaking at Georgetown Law School’s Ninth Annual Global Antitrust Enforcement Symposium, Fordham Law’s 42nd Annual Conference on International Antitrust Law and Policy, and the Merger Practice Workshop sponsored by the ABA Section of Antitrust Law and George Washington University.

Yesterday, addressing the Georgetown program, Williams Baer, Assistant Attorney General in charge of the Department of Justice Antitrust Division, called on antitrust enforcement agencies around the globe to find common ground on  enforcement actions involving monopolization or single-firm conduct.

C [...]

Antitrust in Emerging and Developing Economies Is Topic for Upcoming Conference in New York

Once again, New York University School of Law (NYU Law) and Concurrences Review will be hosting a conference next month in New York City that will explore the issues raised by implementing and enforcing antitrust rules in developing countries. “Antitrust in Emerging and Developing Economies: Africa, Brazil, China, India, Mexico…”will be held on Friday, October 23, 2015, at NYU Law.

The welcome remarks will be provided by NYU Law Vice Dean Kevin Davis, followed by introductory remarks by NYU Law professor Eleanor M. Fox. Columbia University professor Joseph Stiglitz will then present “Antitrust Policy in Emerging and Developing Economies” in conversation with Eduardo Pérez-Mo [...]

ECJ Rips Up Orange Book! New Standards in Europe for SEP Injunctions

Standards lie at the heart of the digital economy – without standards, we would not have smartphones, tablets and other key parts of modern life. Europe’s highest court recently delivered a judgment in Huawei v. ZTE[1] explaining when EU competition law will prevent holders of patents that are essential to comply with a standard (SEPs) from seeking an injunction against a willing licensee.

According to the judgment, an SEP holder cannot seek an injunction to bar a competitor from making or selling a product infringing an SEP, unless the SEP holder: 1) alerts a potential infringer of the infringement; and 2) presents a specific, written offer for a licence on FRAND terms, including precis [...]

Fordham Announces Agenda for 42nd International Antitrust Law & Policy Program

Fordham University School of Law will hold its 42nd Annual Conference on International Antitrust Law and Policy on October 1-2, 2015, at Fordham Law School in New York City. There also will be a new pre-conference antitrust economics workshop on September 30.

The conference, now led by James Keyte of Skadden Arps, will feature new topics focused on interactions with government agencies, including litigation, private antitrust enforcement in the EU, media mergers, and “Antitrust in a Mobile World.” Keynote remarks will be delivered by EU Competition Commissioner Margrethe Vestager, Bruno Lasserre of the French Competition Authority, FTC Chairwoman Edith Ramirez, and Renata B. Hesse, Deputy As [...]

Slower Crony Capitalism: The Immediate Aftermath of NC Board

When the FTC prevailed in narrowing the state action exemption in North Carolina Board of Dental Examiners in February 2015, the hope of many commentators was that the result might be a reduction in excessive or unnecessary local regulation. While that still might be the ultimate result, the immediate reaction of some state legislatures has been to add a layer of bureaucratic oversight to ensure “active supervision.” So the case, so far, has expanded application of the federal antitrust laws, triggered more lawsuits and resulted in more, not less, state oversight of economic activity.

The state action exemption is easy to summarize but difficult to apply: bona fide state regulation of th [...]

Reverse Payment Claims Authorized Under State Law: Five Lessons from California’s In re Cipro Decision

Opening a new front in litigation over so-called reverse payment pharmaceutical patent infringement settlements, the California Supreme Court recently held that private parties can challenge these settlements under its state antitrust law, the Cartwright Act.[1] The court relied heavily on the U.S. Supreme Court’s decision interpreting federal antitrust law in F.T.C. v. Actavis, Inc.,[2] importing many of the same federal standards into California law. In so doing, the Cipro court elaborated on these standards beyond the relatively narrow holding of Actavis and rejected the contention that state law claims were preempted by federal patent law. The decision has important lessons for pharmaceu [...]

Judgment for Drug Companies Unlikely the End of the Road in Nexium Case

The federal district court in Boston has rejected a request from purchasers of AstraZeneca LP’s heartburn medication Nexium for a new trial to challenge a “reverse payment” or “pay-for-delay” agreement between AstraZeneca and Ranbaxy Pharmaceuticals to block the entry of a generic version of the drug. Judge Young’s lengthy opinion provides an interesting look at the trial and the proceedings that led up to it. In addition, the decision offers a glimpse of the issues that might be raised in a likely appeal.

In December 2014, the jury had found that a patent settlement agreement between AstraZeneca and Ranbaxy was unreasonably anticompetitive under a rule of reason standard. Howe [...]

EU Judgment Confirms Potential of High Cartel Fines for Vertically Integrated Multinational Companies

On 9 July 2015, the Court of Justice of the European Union (“ECJ”) issued an important judgment[1] concerning the basis on which cartel fines by the European Commission should be calculated for vertically integrated companies.

The judgment endorses the power of the European Commission to impose large fines on multinational companies operating at various levels of the manufacturing and supply chain. It confirms that, for the purposes of cartel fine calculation, the Commission may take into account non-EEA sales of cartelized inputs if these inputs have been built into finished products and subsequently sold to a third party in the EEA by a vertically integrated company.

The judgment stand [...]

Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers

UPDATE: The bi-partisan “Criminal Antitrust Anti-Retaliation Act of 2015” passed the Senate by unanimous consent on July 22.

A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The proposed “Criminal Antitrust Anti-Retaliation Act of 2015” (S. 1599) was reported out of the Senate Judiciary Committee on June 16.

A similar bill was passed unanimously by the Senate in the last Congress; however, the measure was not taken up by the House at that time. With the current bill moving through the Senate, it’s up to House lawmakers to act on the bill [...]

Dawn Raids – EU’s Highest Court Prevents Circumvention of the Ban on Using Dawn Raids for Fishing Expeditions

The Court of Justice of the European Union has now delivered its judgment in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission dawn raids (on-the-spot surprise inspections used to investigate possible infringements of the EU competition rules). In particular, the case focusses on what inspectors can do with documents that that they have found during an inspection which do not relate to the subject matter of their inspection, but indicate separate unrelated anti-competitive behaviour.

Business should review their dawn raid procedures to ensure that they reflect the best practice established by this judgment, in particula [...]

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