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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 [...]

Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act

The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in China against a group of foreign competitors. In its decision, the court followed the Seventh Circuit’s recent decision in Minn‐Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 2012-1 Trade Cases ¶77,943.

The judgment of the district court dismissing Lotes Co., Ltd.’s claims was affirmed, but on alternative grounds. Even if Lotes had alleged the statutorily required “direct, substantial, and reasonably foreseeable effect” on U.S. domestic or import commerce, any such effect did not [...]

So Whatever Happened to American Needle?

You remember American Needle, right?  It is the 2010 U.S. Supreme Court opinion that explains when the action of a joint venture is the action of a single entity or, instead, the result of an agreement among the joint venture members.  Now back on remand in federal district court in Chicago, some recent summary judgment decisions might eventually make the case known for some interesting market definition questions.

American Needle was a licensee of NFL Properties (NFL) that challenged under Sherman Act Section 1 the NFL’s decision in 2000 to terminate the licenses of American Needle and others to make NFL-trademarked hats and grant an exclusive license to Reebok.  One of the NFL’s def [...]

OTA Case Turns Out to Be Less about MFNs and More about Agreement

Back in September 2012, the potential anticompetitive aspects of most favored nation (MFN) clauses was the hot antitrust topic.  While antitrust counselors (and courts) had found the clauses to be innocuous almost all the time, government officials made speeches and even held a workshop in front of an overflow crowd to discuss theories about when MFNs might actually be anticompetitive.  Two live cases were thought to offer U.S. courts the opportunity to evaluate MFNs:  the Justice Department’s e-books case against Apple, and the private class action against the major hotel chains and online travel agents (OTAs).

Eighteen months later, however, the speeches seem to have ended, no report [...]

Why the FTC’s McWane Opinions Raise More Questions Than They Answer

The Federal Trade Commission is meant to be, and is, an expert body on antitrust laws.  So, when a case like McWane—that raises both collusion and exclusion issues—is in front of the FTC, it seems reasonable to expect to receive guidance that is more helpful than we might get from a jury or generalist judge on two questions important to those of us who counsel clients daily.  Unfortunately, the two opinions in this matter raise more questions than they answer.

McWane, Inc. is the only U.S. producer of ductile iron pipe fittings and one of a small number of sellers of the product in the country.  McWane was accused by the FTC both of excluding its few rivals from the domestically-produ [...]

The Auto Parts Antitrust Case: Is This What Success Looks Like?

Wow, what a success! The Antitrust Division recently announced that its investigations in the auto parts market uncovered “separate conspiracies to fix the prices of more than 30 different products sold to US car manufacturers ….” [1] This adds to the results thus far in the investigation, with guilty pleas from 20 companies and fines of over $1.6 billion. Seventeen executives are either in or headed to prison. And ongoing investigations mean more are in the works. In the words of the head of criminal enforcement in the Division, “The deterrent impact of their sentences should resonate in boardrooms around the world.”

But wait, should this make us feel comfortable about antitrust enforceme [...]

Apple Found to Have Orchestrated Conspiracy to Fix E-Book Prices

Apple Inc. played a central role in facilitating and executing a conspiracy among publishers to fix retail prices for electronic books, or e-books, the federal district court in New York City decided last week. The finding of liability against Apple comes after a bench trial that lasted from June 3 to June 20 in an action brought by the U.S. Department of Justice and 33 states and territories.

In April 2012, the Department of Justice Antitrust Division and a number of state attorneys general brought actions against Apple and leading publishers for conspiring to fix the sales prices of e-books. The suits named as defendants Apple and publishers Hachette Book Group (USA), HarperCollins Publish [...]

Justice Department Sues eBay over No Hire Agreement with Intuit

Online marketplace eBay, Inc. has been charged by the Department of Justice with entering into an agreement with business and financial management solutions provider Intuit, Inc. not to hire each other’s employees. On Friday, the Justice Department filed an 11-page civil antitrust complaint against eBay in the federal district court in San Jose, California.

The complaint details a naked no-solicitation and no-hire agreement reached at the highest levels of the companies. Meg Whitman, then eBay’s CEO, and Scott Cook, Intuit’s founder and executive committee chair, were allegedly involved in forming, monitoring, and enforcing the pact.

According to the government,  the agreement barred e [...]

Department of Justice Requires Verizon, Cable Companies to Revise Marketing Agreements to Resolve Antitrust Concerns

The Department of Justice will not challenge a proposed acquisition by Verizon Wireless of a significant portfolio of wireless spectrum licenses from a consortium of four cable companies and the subsequent transfer of a significant amount of that spectrum to T-Mobile USA; however, the parties will be required to modify separate marketing agreements to settle charges that they would, if left unaltered, harm competition by diminishing the companies’ incentive to compete. Verizon is one of the nation’s largest providers of wireline telecommunications services, including both video and broadband services as well as bundles that contain those products.

The U.S. Department of Justice and the S [...]

Information Sharing: Still Risky After All These Years

Two recent antitrust matters serve as reminders that exchanging sensitive information with business competitors can pose significant antitrust risks – particularly when companies stray from the “safety zones” established by the federal antitrust enforcement authorities.

From an antitrust perspective, agreements to exchange information present significant risks. An information exchange has the potential to facilitate unlawful coordination among competitors, and even if coordination does not occur, companies that share information might face difficult questions about how frequent access to sensitive competitor information does not undermine competition. In 1996, the Antitrust Division of [...]

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