Some U.S. Supreme Court watchers may have been disappointed that the Court on the last day of the October 2011 term–according to the Court’s calendar–did not decide the fate of President Obama’s health care overhaul legislation. That decision is most likely to come within the next three days, before the Court wraps up for the summer.

However, the antitrust community got a rare treat today. The Supreme Court granted petitions for certiorari in two closely-watched antitrust cases: a Federal Trade Commission (FTC) action challenging a Georgia hospital combination, and a consumer class action against cable provider Comcast Corporation.

In the FTC action, the Court will consider the scope of [...]

Some of Google’s critics analogize Google’s conduct today to that of Microsoft’s during its heyday of the 1990s:  Like Microsoft, Google is big.  Like Microsoft, Google has hampered the opportunities of rivals.  And like Microsoft, Google has abused its purported dominant position in online search by prominently displaying its own products in search results and excluding competitors.  This analogy may be simple; but it just is not true. 

I explain below four reasons why the analogy does not hold water:  First, there is no harm to consumers.  Second, Google is not a real monopoly.  Third, unlike Microsoft, Google does not handicap or exclude competitors. Finally, there [...]

Today Google announced that the FTC had opened an investigation of its search practices.  This is an issue I have given considerable thought to.  In an article I just released—Internet Search Competition: Where’s the Beef?—I explain that while Google is the “target du jour in the antitrust community,” efforts to bring antitrust enforcement against Google or impose amorphous concepts of “search neutrality” are misguided.  I explain why Google’s interests are strongly aligned with protecting and enhancing consumer sovereignty and that government regulation is unnecessary and would only stymie continued innovation. A synopsis of the article appears below. The complete paper is av [...]

How far can a competitor go in an effort to convince a local government to block a potential rival from setting up shop in its area without running afoul of the antitrust laws?

Last week, the U.S. Court of Appeals in Chicago ruled that a hospital was shielded from antitrust liability for allegedly making misrepresentations during local zoning proceedings and engaging in a public relations campaign in its effort to prevent the opening of a competing “physician center.” The challenged conduct was protected by the so-called Noerr-Pennington doctrine. Summary judgment in favor of the hospital (695 F.Supp2d 811, CCH 2010-1 Trade Cases ¶76,919) was affirmed.

The action was brought against La [...]

Microsoft Corporation has filed a formal complaint with the European Commission (EC) against Google Inc. as part of the EC’s ongoing antitrust investigation into the search engine company. In a March 30 blog post, Brad Smith, Microsoft Senior Vice President and General Counsel, said that the software company and search engine rival wanted to register its concerns with the EC over Google’s control of the European search market. Google “shouldn’t be permitted to pursue practices that restrict others from innovating and offering competitive alternatives,” Smith said.

Smith offered a half-dozen examples of “actions that Google has taken to entrench its dominance in the markets for online s [...]

Claims that E.I. du Pont de Nemours and Company attempted to wield, and did wield, monopoly power over the U.S. para-aramid fiber market in violation of Sec. 2 of the Sherman Act should not have been dismissed, the U.S. Court of Appeals in Richmond, Virginia, has decided.

Kolon Industries, Inc., a small seller of para-aramid fibers to U.S. consumers, plausibly pled monopolization and attempted monopolization counterclaims in a trade secrets suit brought by DuPont against its rival. Dismissal of Kolon’s antitrust counterclaims (2009-2 Trade Cases ¶76,861, 683 F. Supp. 2d 401) was reversed.

DuPont sold over 70 percent of the para-aramid fibers (fibers used to make body armor, tires, and fib [...]

The Federal Trade Commission recently suffered a significant setback in its merger enforcement efforts when the federal district court in Minneapolis rejected an action brought by the agency along with the State of Minnesota against global pharmaceutical company Lundbeck, Inc.

In December 2008, the FTC and Minnesota filed a complaint against Ovation Pharmaceuticals, Inc., which was later acquired by Lundbeck. The suit challenged the company’s 2006 acquisition of the rights to market NeoProfen (injectable ibuprofen)—a drug used to treat premature infants with a heart condition known as patent ductus arteriosus (PDA).

The FTC alleged violations of the FTC Act and Sec. 7 of the Clayton Act a [...]

The Eighth Circuit’s recent decision in Southeast Missouri Hospital v. C.R. Bard, Inc., ___ F.3d ___, 2010 WL 3220600 (8th Cir. Aug. 17, 2010), aligns this Circuit with the Ninth Circuit’s decision in Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 906-07 (9th Cir.2008).. Under those decisions the Sherman Act tests for exclusion by means of a bundled discount is the so-called “attribution,” test, in which the entire discount is attributed to the “exclusion product,” which is the one from which rivals are allegedly excluded. If the fully attributed discount brings the price below the relevant measure of cost (average variable cost in the Cascade case), then the discount [...]