Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal
Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of Trade Act (KRTA). Kansas Supreme Court precedent that called for a “reasonableness rubric”—a determination of whether a restraint was reasonable in view of all of the facts and circumstances—was overruled. In addition, the court decided that the “rule of reason” of federal antitrust jurisprudence did not apply. It refused to read unwritten elements, such as a reasonableness requirement, into the otherwise clear legislative language of the Kansas antitrust law.
The action [...]
Antitrust Division Workload Statistics Show Increase in Merger Filings, Enforcement Actions
The Department of Justice Antitrust Division opened 90 merger investigations and filed 13 merger cases in Fiscal Year (FY) 2011 (October 1, 2010, to September 30, 2011). The uptick in enforcement activity over the past couple of years was in response to an increase in merger activity.
Increase in HSR Filings
According to recently released workload statistics, summarizing Antitrust Division activities over the preceding 10-year period (FY 2002 – 2011), there were 1,450 premerger notifications under the Hart-Scott-Rodino (HSR) Act in FY 2011.
The number of HSR filings in FY 2011 was more than double the number in FY 2009 (716). From FY 2010 (1,166) to FY 2011, there was a more than 24 perc [...]
Eleventh Circuit Rejects FTC’s Approach to Pay-for-Delay Settlements as “Turducken Task”
The U.S. Court of Appeals in Atlanta today rejected the Federal Trade Commission’s challenge to a patent litigation settlement between brand name and generic drug companies as an unlawful agreement not to compete in violation of Section 5(a) of the FTC Act.
The FTC brought the case in 2009 against Solvay Pharmaceuticals and generic manufacturers Watson Pharmaceuticals, Par Pharmaceutical, and Paddock Laboratories over a “pay for delay” or “reverse payment” patent infringement settlement agreement related to patents for AndroGel—a testosterone replacement drug often used by men whose bodies do not produce normal levels of testosterone. In 2010, the federal district court in Atlant [...]
Highlights of the 2012 ABA Antitrust Spring Meeting
Ah, the Spring Meeting. God I love it.
Admittedly, the ABA Antitrust Section Spring Meeting, perhaps the profession’s preeminent event, is in some respects getting to be just a bit of a circus. What were once a handful of calm, early evening cocktail receptions in the bowels of the Marriott have grown into a deafening barrage of extravagant drink-fests, which have spilled over into the many posh surrounding hotels and restaurants, including the Willard and that exclusive, trendy new home of $20 hamburgers, Central Michel Richard. One venue on Thursday afternoon featured, in addition to the inability to hear, mini-sombrero party-favors and a mariachi band. And as proof how much the [...]
Second Circuit Corrects Misapplication of Twombly Plausibility Test in Boycott Case
The federal district court in New York City should not have rejected allegations that a magazine wholesaler was driven out of business as a result of an antitrust conspiracy, the U.S. Court of Appeals in New York City decided earlier this week. On April 3, the appellate court vacated the lower court’s judgment granting a motion to dismiss the wholesaler’s Sherman Act Sec. 1 claim for failure to state a claim and denying leave to file an amended complaint.
According to the appellate court, the lower court misapplied the plausibility standards set by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129S. Ct.1937 (2009). The lower court should not have dismissed pl [...]
BREAKING NEWS: Rand Paul Proposes to Repeal Federal Antitrust as to “Individuals”
Senator Rand Paul of Kentucky, the freshman Republican and Tea Party favorite, is only slightly more famous as the son of Representative Ron Paul than as the deliberate namesake of Ayn Rand. Last Thursday he introduced a genuine humdinger.
Deploying that prowess for economic and legal analysis that may characterize many ophthalmologists, Senator Paul seems to believe the bill does no more than limit FTC jurisdiction (consider his comments to that effect to The Hill).
But that is quite wrong. His so-named “Anti-Trust Freedom Act of 2012” would entirely repeal federal antitrust as to any conduct by “individuals.” It provides in its entirety as follows:
The Sherman Act (15 U.S.C. [...]
One to Watch: SCOTUS Consideration in Phoebe Putney?
The next Term may see significant SCOTUS consideration of the state action immunity, the first such case since 1992. The decision below in the defendants’ favor was quite plainly wrong, and so it might also become only the second antitrust case in twenty years in which the Court has ruled for a plaintiff. That would be a nice result since it would shield the plaintiff here, the Federal Trade Commission, from yet another unjustified indignity at the hands of the increasingly anti-enforcement courts of appeals (see, e.g., this recent decision).
To wit, while no petition has yet been filed, the Solicitor General has confirmed that he will seek review in FTC v. Phoebe Putney Health System, I [...]
Competition Policy in Bizzaro Land: The Ongoing FTC Building Fiasco
In a recent letter to the House Transportation and Infrastructure leadership, all four sitting Federal Trade Commissioners joined in “grave concern” over that Committee’s plan to kick the agency out of the iconic, art deco building that FDR built for it nearly 75 years ago. The House Committee and its chairman intend to turn the building into a wing of the National Gallery of Art.
When I first heard about this mess (in February of 2011, when the Commissioners wrote a similar letter), I had thought the story was really about competition policy and the politics of regulation. Its apparent theme was poignant, bitter symbolism: a hostile and radically conservative House majority, int [...]
Prospects Dim for Quick Passage of NOPEC, Railroad Antitrust Exemption Repeal
Federal legislative proposals that would have repealed the antitrust exemption enjoyed by freight railroads and would have permitted the U.S. Department of Justice to sue Organization of Petroleum Exporting Countries (OPEC) members for price fixing will not pass the Senate as part of the Surface Transportation Bill.
Senator Herb Kohl (D-Wisconsin) last month introduced two antitrust amendments to the long-stalled “Moving Ahead for Progress in the 21st Century America Fast Forward Financing Innovation Act of 2011” or “MAP-21” (S. 1813)—the two-year surface transportation bill. However, a compromise to move the legislation forward excludes the proposals.
Today, Senator Harry Reid (D- [...]
I Can’t Make You Love Me If You Won’t: Capper-Volstead Jilted by Sherman One
The authors are, respectively, partner and associate, at the firm of Labaton Sucharow LLP, New York City. Mr. Himes, who also co-chairs the firm’s Antitrust Practice Group, is the former Antitrust Bureau Chief, Office of the Attorney General of New York. Firm attorneys are counsel for plaintiffs in the Potatoes case discussed in this paper.
The intersection between the Sherman Act and the Capper-Volstead exemption for collective conduct by agricultural industry members has given rise to a number of recent cases. In re Fresh and Process Potatoes Antitrust Litig., No. 4:10–MD–2186 (D. Idaho) (“Potatoes”), is particularly noteworthy. There, the District Court held that the Cappe [...]
