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 [...]
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 [...]
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- [...]
Bill Baer Named to Serve as AAG in Charge of Justice Department Antitrust Division
On February 3, the White House announced President Barack Obama’s intention to nominate Bill Baer to serve as Assistant Attorney General in charge of the Department of Justice Antitrust Division.
There was much speculation that Baer would be named to head the Antitrust Division after Sharis A. Pozen, the current acting assistant attorney general for antitrust, announced her intention to resign just over one week ago (see January 24 blog post). Pozen plans to leave the Justice Department at the end of this month to return to private practice.
Bill Baer is currently the head of the antitrust group at the Washington, D.C. office of Arnold & Porter, LLP. Baer held a number of high-level positi [...]
Deutsche Börse and NYSE Euronext Blame “Narrow” Market Definition for EC’s Objection to Combination
Despite a U.S. Department of Justice decision to clear the deal, the European Commission (EC) today blocked the proposed merger of NYSE Euronext and Deutsche Börse. The EC determined that the combination would have resulted in a quasi-monopoly in the area of European financial derivatives traded globally on exchanges. The two exchanges control more than 90% of global trade in these products, according to the EC.
In light of the EC decision, NYSE and Deutsche Börse said that they were in discussions to terminate their merger agreement.
“The merger between Deutsche Börse and NYSE Euronext would have led to a near-monopoly in European financial derivatives worldwide,” said Joaquín Almun [...]
Fines Mounting in Department of Justice Auto Parts Cartel Investigation
The Department of Justice today announced a total of $548 million in fines resulting from a second round of charges in the government’s ongoing investigation into collusive activity in the auto parts industry.
Two more Japanese companies have agreed to plead guilty for their roles in multiple price fixing and bid rigging conspiracies in the sale of parts to automobile manufacturers in the United States. The Antitrust Division announced that Japanese suppliers of automotive electrical components—Yazaki Corporation and DENSO Corporation—have agreed to pay a total of $548 million in criminal fines.
The latest fines, when taken together with a $200 million fine imposed last November on Fur [...]
Acting Antitrust Chief Pozen Plans to Step Down in April
Less than six months after her appointment as Acting Assistant Attorney General in charge of the Department of Justice Antitrust Division, Sharis A. Pozen has announced her resignation, effective as of April 30, 2012. Late yesterday, the Justice Department issued a statement announcing the departure.
There was no word on who would replace Pozen. However, there is speculation in the media that Bill Baer, head of the antitrust group at the Washington, D.C. office of Arnold & Porter, LLP. might be on the short-list of candidates. Baer has held a number of high-level positions at the Federal Trade Commission, including director of the FTC’s Bureau of Competition.
The current deputy assistant a [...]
A Look Back at the Enforcement Efforts of the Federal Antitrust Agencies in 2011
Having filed over 100 cases in the last 12 months, the Department of Justice Antitrust Division was especially active in 2011. The vast majority of those cases were criminal matters; however, 2011 will most likely be remembered for the Antitrust Division’s merger enforcement efforts.
The Antitrust Division reviewed a number of mega-mergers in 2011. While the most of merger filings were approved by the Justice Department without challenge or with conditions in a consent decree, there were notable court battles.
Among the most significant of these was the federal/state challenge to AT&T’s proposed $39 billion acquisition of T-Mobile USA Inc. from Deutsche Telekom. The parties ultimately ab [...]
