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FTC/DOJ Workshop on Conditional Pricing Practices – Good as Far as It Goes

On June 23, 2014, the U.S. Federal Trade Commission and Department of Justice Antitrust Division held a workshop on “conditional pricing practices”—loyalty discounts, bundled discounts and similar pricing techniques.  Many economists, academic experts and practitioners, some of them even hailing from outside the Beltway, opined on the rationale for and against antitrust legality of such common marketing practices.  The agencies are to be congratulated for leading this discussion and advancing the thinking on this important topic; still, real-world businesses continue to look for clearer guidance than what has been provided by the agencies and courts to date, but the conference promis [...]

Is the FTC Changing Its Intellectual Property Rights Policy?

Commissioner Josh Wright of the U.S. Federal Trade Commission certainly is the gift that keeps on giving to antitrust commentators.  Rarely do many weeks go by without a Wright speech or dissenting opinion that cogently takes on an interesting competition issue, often one captured in an action by his fellow commissioners.  Last month’s example was a speech to the New York City Bar Association provocatively titled, “Does the FTC Have a New IP Agenda?”  Wright believes the answer to his question is “yes,” and that the shift is not helpful.  Much of the support for Wright’s assertion of a change comes from two FTC matters that predate his tenure and alarmed the business communit [...]

Enforcers Update Spring Meeting Attendees on Latest Antitrust Developments

In case you missed some of those morning sessions at the American Bar Association Section of Antitrust Law Spring Meeting last week, here are some of the highlights from the updates with federal and state enforcers.

Agency Update with the Deputy Assistant Attorneys General

There were some new faces on the panel this year at the Section’s annual update from the Department of Justice Antitrust Division. In addition to changes in leadership, over the last year the Antitrust Division has seen an increase in hiring that will support its continued enforcement activities, the enforcers reported during the March 26 session.

David Gelfand and Brent Snyder are the newest deputy assistant attorneys gen [...]

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 [...]

Combination of Idaho’s Largest Health System and Largest Physician Practice Must Be Unwound

Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts.

Last Friday, it was the Federal Trade Commission’s turn. The U.S. district court in Boise ordered St. Luke’s Health System, Ltd.—the largest health care system in Idaho—to divest Saltzer Medical Group—the state’s largest independent, multi-specialty physician practice—after concluding that St. Luke’s 2012 acquisition of Saltzer violated Section 7 of the Clayton Act and the Idaho Competition Act. In that matter, the FTC and the State of Idaho joined a challenge initiated by private plaintiffs.

On January 8, the federal district court in San Fr [...]

FTC at a Crossroads: The McWane Case

Anyone familiar with the antitrust newstream realizes there is a tremendous amount of controversy about the Federal Trade Commission’s administrative litigation process. Unlike the Antitrust Division which fights its litigation battles in Federal Court, the FTC has a distinct home court advantage. FTC antitrust cases are typically litigated administratively with a trial conducted before an FTC administrative law judge, who issues an initial decision, followed with an appeal to the full Commission for a final decision. I have authored a couple of recent articles as have others that question the fairness of the FTC acting as both prosecutor and judge. These concerns have only been amplified [...]

Is the FTC Picking on the Pharmaceutical Industry Through New HSR Rules?

Effective December 16, 2013, Hart-Scott-Rodino (HSR) coverage of exclusive licenses of patents will change. As HSR practitioners know well, the Federal Trade Commission’s Premerger Notification Office (PNO) has long-interpreted HSR to cover exclusive licenses as a reportable acquisition (assuming all other requirements are met) if the licensor did not retain any rights to “make, use or sell” under the patent. Now, the PNO’s formal rules will consider a patent license a reportable acquisition even if the licensor retains the right to manufacture—but solely for the licensee—or if the licensor retains the right to co-market, but, again, solely with the licensee. The PNO’s thinking [...]

Can the FTC Be a Fair Umpire?

Nearly 100 year ago, Congress established the Federal Trade Commission to protect consumers against unfair, deceptive and anticompetitive practices.  Part of the reason for its creation was to create an independent, fair and expert body to resolve complex antitrust claims, because the federal courts seemed incapable of enforcing the antitrust laws.  So Congress enabled the FTC to adjudicate its own cases in an administrative process.

Over the century, the Commission had many successes, but its power to adjudicate cases has always been controversial.  The FTC issues complaints which are adjudicated before an FTC Administrative Law Judge and that decision can be appealed to the Commission. [...]

Just What on Earth Did Actavis Really Say? And Does It Mean Something for Section 1 More Broadly?

It’s going to be a strict, nearly-per-se quick look rule, folks, in more or less every reverse-payment case likely to be brought from here on out.  Dollars-to-donuts.

A few weeks have gone by, and quite a lot of folks are chewing over the entrails of Federal Trade Commission v. Actavis, Inc. The case may finally have ended the decades-long saga of the so-called “reverse payment” or “pay-for-delay” settlements, in which a branded incumbent drug maker pays a would-be generic entrant to stay out of its market and respect its patent.  Unlike most lower courts to consider them, the five-Justice Actavis majority found these deals subject to Sherman Act challenge, under a standard that [...]

Antitrust Division Lawyer Picked to Fill Vacancy on Federal Trade Commission

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 [...]

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