On April 27, 2016, the FTC entered an administrative complaint against Invibio, Inc., accusing it and its parent company, Victrex, of violating FTC Act Section 5 through exclusive dealing contracts. The companies agreed to a consent order, also issued that day. Because the antitrust aspects of exclusive dealing remain unsettled, practitioners (and their clients) would…

The U.S. Supreme Court’s denial of the petition for certiorari in the McWane case on Monday dashed the hopes of many antitrust practitioners that the Court might provide some much-needed clarity on the antitrust implications of using exclusive dealing arrangements. The denial also makes it highly unlikely that the High Court will be issuing any…

Federal lawmakers are currently considering legislation that would eliminate differences in the procedures used by the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division in challenging unconsummated acquisitions and mergers. The proposed “Standard Merger and Acquisition Reviews Through Equal Rules Act of 2015” or “SMARTER Act” is intended to address concerns that…

When the FTC prevailed in narrowing the state action exemption in North Carolina Board of Dental Examiners in February 2015, the hope of many commentators was that the result might be a reduction in excessive or unnecessary local regulation. While that still might be the ultimate result, the immediate reaction of some state legislatures has…

Finding a unifying theory to explain (almost) all the decisions of the Supreme Court in a substantive area can be a difficult task. Alden Abbott and Thom Lambert’s new article accomplishes it for the antitrust decisions of the Roberts Court.[1] They contend that these opinions can be seen as the Court implementing Professor (now Judge)…

So, the only real surprise about yesterday’s opinion in North Carolina State Bd of Dental Examiners v. FTC is that it wasn’t unanimous.  The strongly worded six-member majority opinion, already receiving early applause (see here and here), is further proof that the only thing the current Supreme Court dislikes more than antitrust plaintiffs is state…

Who would have thought that ductile iron pipe fittings would make for such an interesting antitrust case?  While the product might be prosaic, the convoluted facts of the McWane v. FTC case in the 11th Circuit could be used as a law school exam question (and some of us already have).  The issues are now…

The Federal Trade Commission and Department of Justice Antitrust Division had another active year in antitrust enforcement in 2014. As for FTC antitrust enforcement efforts, FTC Bureau of Competition Director Deborah L. Feinstein was kind enough to provide a list of the “Ten Competition Happenings for 2014” on the agency’s Competition Matters blog. Her list…

Antitrust law debates usually emphasize price effects while other elements of competition get less attention.  Three recent writings by leading antitrust thinkers, however, explore the interaction between antitrust law and competition, on the one hand, and innovation, quality and long-term labor markets, respectively, on the other.  As summarized below, each piece discusses an attribute of…

On October 14, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws.  Dozens of amici have written briefs supporting both parties.  Those briefs reveal significantly different opinions about the costs and…