Consumers and small businesses that are parties to contracts containing arbitration agreements will find it tougher, if not impossible, to avoid the terms of those agreements and pursue an antitrust action in court against the other contracting party, in light of a recent U.S. Supreme Court ruling.
Noting that “the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim,” a sharply divided Supreme Court ruled on Thursday that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA), even though the cost of individually arbitrating the federal statutory claim exceeded the potential recovery. The High Court [...]
Terrell McSweeny, Chief Counsel for Competition Policy and Intergovernmental Relations at the Department of Justice Antitrust Division, is President Obama’s pick to fill the current vacancy on five-member Federal Trade Commission.
The White House announced today the President’s intention to nominate McSweeny. According to the announcement, McSweeny has served in the senior counsel position at the Antitrust Division, since 2012. Prior to that, she served as Deputy Assistant to the President and Domestic Policy Advisor to the Vice President at the White House from 2009 to 2012.
Based on her background, McSweeny appears to be a Democrat. If confirmed, she would provide the Democrats with a th [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]