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Follow-Up Note on Another Missed Opportunity for the Administration of Justice Across Europe

Last week, the Council gave itself another shot at improving the functioning of the General Court of the European Union (the ‘General Court’). And once again, it failed. Following an already disappointing episode in March 2014,[1] the Council again placed the equality between member states at the top of its priorities, by doubling up the number of judges at the General Court.  This may admittedly help the General Court reduce its backlog but was certainly not the “most cost-effective” way to do so.  There was, indeed, a much easier way out.

By way of a reminder, reforming the General Court has been on the table for several years.  Everyone agrees this reform is now urgently neede [...]

Antitrust Law and Effects on Innovation, Quality and the Labor Market

Antitrust law debates usually emphasize price effects while other elements of competition get less attention.  Three recent writings by leading antitrust thinkers, however, explore the interaction between antitrust law and competition, on the one hand, and innovation, quality and long-term labor markets, respectively, on the other.  As summarized below, each piece discusses an attribute of competition other than price that might be used to provide a more accurate description of the dynamic competitive effects in any market.

Professors Spencer Weber Waller and Matthew Sag of Loyola University Chicago School of Law discuss competition law and Promoting Innovation in the Iowa Law Review.  (A [...]

U.S. Premerger Coordination Allegations Settled for $5 Million in Civil Penalties, Disgorgement

The dangers of prematurely exercising operational control over an acquisition target, or at least appearing to operate organizational control, are highlighted by a Department of Justice Antitrust Division action announced yesterday against two particleboard suppliers that recently dropped their planned combination. Just five weeks ago, Flakeboard America Ltd. abandoned its proposed acquisition of rival SierraPine in the face of the government’s antitrust concerns. Now, the companies have agreed to pay millions to settle allegations that they engaged in premerger coordination, also known as “gun jumping,” in violation of both Sec. 7A of the Clayton Act and Sec. 1 of the Sherman Act.

According [...]

United Kingdom: Merger Control Interim Enforcement Orders

Two unusual features of the United Kingdom’s merger control regime are that notification is voluntary and there is no ‘suspension’ obligation. This means that mergers can be – and routinely are – completed without notification to and/or approval by the Competition and Markets Authority (“CMA”).

In this article, I examine the CMA’s use of its new powers to impose interim measures in the case of completed mergers. Through these powers, the CMA can prevent or limit the integration of the merged businesses pending completion of the CMA’s merger review. Self-evidently, this can have significant commercial consequences for the merging parties, in particular the acquiring party.

B [...]

State Regulation or Merely a “Gauzy Cloak”: A Preview of the North Carolina Board Oral Argument in the Supreme Court

On October 14, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws.  Dozens of amici have written briefs supporting both parties.  Those briefs reveal significantly different opinions about the costs and benefits of state licensure boards and how their actions should be treated under the antitrust laws.

The state action exemption can be quickly summarized:  bona fide state regulation of the economy, even if anticompetitive, is exempt from the federal antitrust laws.  Such a quick summary, however, belies the complexities explored in numerous Court [...]

Iowa Law Review to Honor Herb Hovenkamp

The University of Iowa Law Review will host a Centennial Symposium, honoring the work of Professor Herbert Hovenkamp, on October 23-24, in Iowa City. Hovenkamp, the Ben and Dorothy Willie Chair at Iowa College of Law, has authored roughly 100 articles, approximately 50 essays and book reviews, and dozens of books. He is the senior surviving author of the landmark antitrust treatise Antitrust Law: An Analysis of Antitrust Principles & Their Application.

A stalwart of the antitrust community, Herb was presented in 2008 with the U.S. Department of Justice John Sherman Award for his lifetime contributions to the teaching and enforcement of antitrust law and the development of antitrust policy. H [...]

Mama Mia, Here We Go Again

Just over a year ago, I wrote (rather extensively) on the European Commission’s public consultation entitled “Towards more effective EU Merger Control” in which the Commission proposed to (i) expand its powers to review non-controlling minority interests and (ii) streamline the case referral system between the European Commission and NCAs.

Our regular readers will note that Mark Jones alerted them to the European Commission’s second public consultation on this subject. As Mark noted, the deadline for this consultation closes on 3 October 2014.

The purpose of this post is not to repeat Mark’s (or indeed my prior 2013 post). Rather I thought that it may be useful to put down some tho [...]

Proposed Settlement Rejected in FTC Challenge to Georgia Hospital Combination; Matter Returns to Administrative Litigation

The FTC’s challenge to the now-consummated combination of Phoebe Putney Health System, Inc.—the operator of Phoebe Putney Memorial Hospital—and rival Palmyra Park Hospital, Inc. in Albany, Georgia, is headed back to administrative litigation. More than a year after announcing a tentative settlement in the case, the FTC has refused to grant final approval to the proposed consent order. On Friday, the Commission issued an order, returning the matter to Part III litigation to determine whether the acquisition reduced competition in the market for acute-care hospital services sold to commercial health plans in a six-county area, as alleged in the agency’s 2011 complaint.

The proposed settle [...]

AAI Seeking Nominations for Outstanding Antitrust Litigation Achievement by a Young Lawyer

To continue its growth, the American Antitrust Institute (AAI) is recruiting the next generation of antitrust practitioners. The AAI is seeking the antitrust community’s support of new programs aimed at connecting with this next generation.

Antitrust practitioners can help by nominating a young lawyer for Outstanding Antitrust Litigation Achievement by a Young Lawyer. The award will be presented at the Antitrust Enforcement Awards dinner on December 2.

This award is limited to private civil actions. Nominees should be individual practitioner(s) under 40 years old or admitted to practice for 10 years or less.

Nominees will be judged on:

  1. the individual’s contribution to the case;
  2. the be [...]
Monopoly Claims Can Survive Summary Judgment: Medtronic Must Defend Conduct in “Bone Mill” Market

One firm’s ability to break into the market for “bone mills” used in spinal-fusion surgery did not foreclose the possibility that medical device company Medtronic monopolized or attempted to monopolize the bone mill market, the U.S. Court of Appeals in Denver ruled last week. Bone mill manufacturer Lenox MacLaren Surgical Corporation raised sufficient fact questions, including questions regarding barriers to entry, to defeat summary judgment on its monopolization and attempted monopolization claims. The August 5, 2014, decision is Lenox MacLaren Surgical Corp. v. Medtronic, Inc., No. 13-1307.

The suit follows a falling out between Lenox and Medtronic. Lenox had sold some of its bone mi [...]

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