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 [...]
Highlights of the 2012 ABA Antitrust Spring Meeting
Ah, the Spring Meeting. God I love it.
Admittedly, the ABA Antitrust Section Spring Meeting, perhaps the profession’s preeminent event, is in some respects getting to be just a bit of a circus. What were once a handful of calm, early evening cocktail receptions in the bowels of the Marriott have grown into a deafening barrage of extravagant drink-fests, which have spilled over into the many posh surrounding hotels and restaurants, including the Willard and that exclusive, trendy new home of $20 hamburgers, Central Michel Richard. One venue on Thursday afternoon featured, in addition to the inability to hear, mini-sombrero party-favors and a mariachi band. And as proof how much the [...]
One to Watch: SCOTUS Consideration in Phoebe Putney?
The next Term may see significant SCOTUS consideration of the state action immunity, the first such case since 1992. The decision below in the defendants’ favor was quite plainly wrong, and so it might also become only the second antitrust case in twenty years in which the Court has ruled for a plaintiff. That would be a nice result since it would shield the plaintiff here, the Federal Trade Commission, from yet another unjustified indignity at the hands of the increasingly anti-enforcement courts of appeals (see, e.g., this recent decision).
To wit, while no petition has yet been filed, the Solicitor General has confirmed that he will seek review in FTC v. Phoebe Putney Health System, I [...]
Competition Policy in Bizzaro Land: The Ongoing FTC Building Fiasco
In a recent letter to the House Transportation and Infrastructure leadership, all four sitting Federal Trade Commissioners joined in “grave concern” over that Committee’s plan to kick the agency out of the iconic, art deco building that FDR built for it nearly 75 years ago. The House Committee and its chairman intend to turn the building into a wing of the National Gallery of Art.
When I first heard about this mess (in February of 2011, when the Commissioners wrote a similar letter), I had thought the story was really about competition policy and the politics of regulation. Its apparent theme was poignant, bitter symbolism: a hostile and radically conservative House majority, int [...]
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 [...]
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 [...]
FTC Needs To Stop The Express Scripts-Medco Merger
Antitrust enforcement has certainly been revived at the Obama Justice Department. With recent cases against Comcast/NBC, health insurers and telecom firms, the DOJ has begun to demonstrate why antitrust enforcement is a critical bulwark for competitive markets.
No area is in greater need of an infusion of sound enforcement than healthcare. The healthcare debate demonstrated the dysfunction of healthcare intermediary markets — health insurer and pharmacy benefit manager (PBM) markets are highly concentrated and largely unregulated, and massive consolidation of health insurers and PBMs over the past decade has led to a long list of deceptive and anticompetitive practices.
Fortunately, the DO [...]
Federal Antitrust Agencies Offer Guidance to Health Care Providers Forming Accountable Care Organizations
Today, several federal agencies, including the federal antitrust agencies, issued rules and guidance for assisting health care providers in the formation of new accountable care organizations (ACOs).
An ACO is a group of health care providers or suppliers or a network of groups—often affiliated with a hospital—collaboratively manage and coordinate care for Medicare beneficiaries. Under the Patient Protection and Affordable Care Act, ACOs will serve fee-for-service beneficiaries through Medicare’s Shared Savings Program (MSSP) and must sign up with the Centers for Medicare & Medicaid Services (CMS) to participate in the program for at least three years, starting January 1, 2012. ACO par [...]
Antitrust Decision from Supreme Court Unlikely During Current Term
It is beginning to look like the U.S. Supreme Court will not be taking up any antitrust cases in the current term. Last week, the Court denied six petitions for review in antitrust-related matters. Just yesterday, the Court denied a petition for review in a Federal Trade Commission antitrust enforcement action.
There have been far fewer petitions in antitrust cases than in previous terms, and only one petition for review of an antitrust decision remains pending before the Court. As a result, the October 2011 term will most likely be a repeat of the prior term, in which the High Court issued no antitrust decisions.
Review Denials
On the first Monday in October, the Supreme Court declined to [...]
Higher Premerger Filing Fees Included in Senate Appropriations Proposal
The Senate Appropriations Committee has approved legislation that, in addition to funding the Federal Trade Commission next year, would increase the Hart-Scott-Rodino (HSR) Act premerger filing fees that help fund the agency. The legislation (S. 1573) also would block efforts to relocate the headquarters of the FTC from its current location at 600 Pennsylvania Avenue, unless the government were to receive fair market value for the property.
The proposed Financial Services and General Government Appropriations Bill for Fiscal Year 2012 would increase the fees that parties must pay when notifying the FTC and Department of Justice Antitrust Division of a large acquisition or merger under the HS [...]
