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About Jeffrey May

Jeffrey May is a senior legal analyst with Wolters Kluwer Law & Business. He edits the CCH Trade Regulation Reporter and is a frequent contributor to the WK's Antitrust Law Daily. A member of the Illinois and Pennsylvania bars, he is a graduate of American University and Boston College Law School.
Supreme Court Opens Reverse Payment Patent Settlement Agreements to Antitrust Challenge

A “reverse payment” settlement agreement is not entitled to “near-automatic antitrust immunity” simply because its anticompetitive effects fall within the scope of the exclusionary potential of the patent, the U.S. Supreme Court ruled earlier this week in a five-to-three decision. Although such agreements, also known as “pay-for-delay” settlements, are not presumptively unlawful, the FTC should be permitted to challenge reverse-payment agreements between Solvay Pharmaceuticals and would-be generic competitors Watson Pharmaceuticals (now Actavis, Inc.) and Paddock Pharmaceuticals under a rule of reason analysis. The case is  FTC v. Actavis, Inc., Dkt. No. 12-416.

Reverse paymen [...]

Removability of Parens Patriae Antitrust Actions Under CAFA To Be Considered by U.S. Supreme Court

It appears that the U.S. Supreme Court will soon resolve a split among the circuits on the issue of whether parens patriae actions can be removed from state court as “mass actions” under the Class Action Fairness Act (CAFA). Earlier this week, the Court agreed to review a decision of the U.S. Court of Appeals in New Orleans, concluding that Mississippi’s suit alleging state consumer protection and antitrust claims against manufacturers and distributors of liquid crystal display (LCD) panels qualified as a “mass action” under the CAFA and should be removed to federal court.  According to the state, the Fifth Circuit is at odds with every other circuit that has decided this issue. The p [...]

Federal Antitrust Agency Heads Testify at Senate Subcommittee Antitrust Oversight Hearing

FTC Chairwoman Edith Ramirez and William J. Baer, Assistant Attorney General in charge of the Department of Justice Antitrust Division, testified before the Senate Judiciary Committee’s antitrust subcommittee on Tuesday. The hearing, entitled “Oversight of the Enforcement of the Antitrust Laws,” was the subcommittee’s first antitrust oversight hearing since Ramirez and Baer took the helms of their respective agencies.

In his prepared statement, Baer said that the Antitrust Division is focusing its enforcement efforts on “products consumers use every day…as well as other goods and services that have a significant impact on our nation’s economy, including health care, agriculture, transpor [...]

Commissioner Wright Calls for FTC Policy Statement on Unfair Methods of Competition

FTC Commissioner Joshua D. Wright told attendees of the American Bar Association Section of Antitrust Law Spring Meeting on April 11 that he was hopeful that the Commission will issue a policy statement, articulating what constitutes an unfair method of competition in violation of Section 5 of the FTC Act. Saying it is the “Commission’s duty,” he expressed his belief that the current Commission is up for the task.

Wright’s remarks – “What’s Your Agenda?” — delivered at the meeting’s “Hot Topics” panel were added to the agency’s website late Monday.

Wright said he would kick off the process by offering a proposal, with certain limiting principles confining the scope of unfair methods claim [...]

Ninth Circuit Widens Pool of Plaintiffs Able to Pursue Conspiracy Claims Under California Cartwright Act

The Ninth Circuit on Thursday ruled that a plaintiff need not make a purchase in California to recover overcharges for price-fixed goods under the California Cartwright Act.

AT&T Corporation and other telecommunications companies that sold mobile wireless handsets containing liquid crystal display (LCD) panels could assert price fixing claims under the California Cartwright Act against manufacturers and distributors of LCD panels to recover overcharges, even though none of their purchases were made in California, the U.S. Court of Appeals in San Francisco decided. Dismissal of the California law claims on the ground that the Due Process Clause of the Fourteenth Amendment forbid the applicati [...]

FTC Chairman Jon Leibowitz to Leave Agency This Month

The Federal Trade Commission announced on Friday that Chairman Jon Leibowitz is planning to leave the Commission effective February 15. Leibowitz has chaired the agency since March 2009 and has been a commissioner since September 2004. Leibowitz did not offer any details of his plans following his departure from the agency.

When Leibowitz began serving as chairman, he anticipated continuity at the agency. He told attendees of the American Bar Association’s Section of Antitrust Law Spring Meeting in Washington, D.C. in March 2009 that he intended to build on the accomplishments of past FTC chairs.

Leibowitz’s tenure was marked by consistency. There were a number of significant accomplishmen [...]

FTC Commissioner Brill Provides Thoughts on Abandoned IDT/PLX Combination

The Federal Trade Commission’s investigation of the now-abandoned merger between Integrated Device Technologies and PLX Technology was the topic of remarks delivered by FTC Commissioner Julie Brill at Skadden’s and Compass/Lexecon’s annual “Antitrust in the Technology Sector” program in Palo Alto, California, on January 28. “The issues raised by IDT/PLX spanned the Merger Guidelines,” Brill said.

In December 2012, the FTC issued an administrative complaint seeking to prevent Integrated Device Technology’s proposed $330 million acquisition of PLX Technology, Inc. The FTC’s complaint alleged that the combined company would possess a near-monopoly on the production of PCIe swit [...]

Third Circuit Holds the Line on Antitrust Standing

In order to assert an antitrust injury, a plaintiff needs to be a consumer or a competitor in the restrained market, the U.S. Court of Appeals in Philadelphia ruled yesterday. If a company makes the choice not to compete, then it will lack standing to pursue antitrust claims.

Ethypharm S.A. France, a French pharmaceutical company, brought an antitrust action in 2008 against Abbott Laboratories.  Ethypharm alleged that the failure of its branded fenofibrate drug, Antara, to compete with TriCor, which was developed by a French company named Laboratories Fournier and distributed by Abbott in the United States, was a direct result of Abbott’s anticompetitive conduct.

Ethypharm did not sell A [...]

Senate Confirms Joshua Wright to Serve as FTC Commissioner

The Senate late on January 1 confirmed Joshua D. Wright to serve as an FTC commissioner. The Senate Commerce, Science, and Transportation Committee issued a statement on January 2, saying that Wright’s nomination, among others, had been discharged from the Committee and confirmed by the Senate.

Wright will replace FTC Commissioner J. Thomas Rosch—a fellow Republican—whose term expired in September. The White House announced the intended nomination on September 10. 

The George Mason University (GMU) Law Professor was confirmed despite tough questioning at a Commerce Committee hearing on December 4. Wright, an economist, has written extensively on antitrust law and economics and is a re [...]

Bill Baer Confirmed by Senate to Serve as Antitrust Chief

The U.S. Senate today confirmed William Baer to serve as Assistant Attorney General in charge of the Department of Justice Antitrust Division. The vote was 64 to 26.

Baer was nominated by the President on February 6. His nomination was reported by the Senate Judiciary Committee on September 20.

“Bill is a highly-skilled and well-respected antitrust lawyer who understands the importance of promoting competition in order for consumers to reap the benefits of lower prices and better quality products and services,” said Attorney General Holder in a December 30 statement, welcoming the confirmation.   “I have no doubt that he will lead the Antitrust Division effectively in its vigorous enf [...]

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