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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 [...]

The Roberts Court, Enforcement Agencies and “The Limits of Antitrust”

Finding a unifying theory to explain (almost) all the decisions of the Supreme Court in a substantive area can be a difficult task. Alden Abbott and Thom Lambert’s new article accomplishes it for the antitrust decisions of the Roberts Court.[1] They contend that these opinions can be seen as the Court implementing Professor (now Judge) Easterbrook’s seminal 1984 article The Limits of Antitrust.[2] By comparison, the authors believe that the enforcement agencies in the same time period have shown less deference to any such limits. While that conflict might portend future difficulties for the agencies in front of the Court, the one acknowledged exception to the theory was a big win for the [...]

High Court Considering Fate of Three Antitrust Petitions

UPDATE: On June 15, the Court denied review in Hsiung v. U.S., Dkt. 14-1121,  and Motorola Mobility LLC v. AU Optronics Corp., Dkt. 14-1122. Apparently, Dow Chemical Co. v. Industrial Polymers, Inc., Dkt. 14-1091, remains pending. The parties filed a joint motion to hold the petition in abeyance before release of the Supreme Court Order List, and the motion was subsequently withdrawn.

On June 11, the U.S. Supreme Court is scheduled to consider whether to grant review in three antitrust cases. We could know as early as next Monday the fate of the petitions for certiorari.

Two of the petitions question the application of the Foreign Trade Antitrust Improvements Act to an international cart [...]

DOJ Issues Business Review Letter Pertaining to SSO Policy on Standard-Essential Patents and RAND Commitments

The Antitrust Division of the U.S. Department of Justice (DOJ) recently issued a business review letter stating that it would not challenge the Institute of Electrical and Electronics Engineers, Inc.’s (IEEE) proposed revisions to its patent policy. These patent policy revisions seek to address the “wide divergence” in expectations between holders of patents essential to an IEEE standard and the market participants seeking to implement such standards.

The DOJ’s response to the revisions continues the current trend in U.S. law limiting the rights of patent holders that make reasonable and non-discriminatory (RAND) rate commitments as part of the standard-setting process. The DOJ emphasized th [...]

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