In one sense the decision of the Third Circuit in Eisai v Sanofi-Aventis on 4 May was fairly unremarkable. Like those before it in Concord Boat, Allied Orthopedic, Southeast Missouri Hospital and others, the court rejected Eisai’s allegation that Sanofi’s loyalty discounts were an anticompetitive de facto exclusive dealing arrangement. Commentary immediately following the decision…

Ever since the incoming EU Competition Commissioner said that information was the new currency of the internet, antitrust commentators started to spill ink on the topic of Big Data and whether it was a Big Deal. The topic now seems to occupy a place on the agenda of many antitrust conferences – and as recently…

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…

A long-running Department of Justice practice of avoiding Tunney Act procedures when seeking federal district court approval of civil penalty settlements in enforcement actions alleging Hart-Scott-Rodino (HSR) Act premerger notification violations is apparently coming to an end. This past week, the Justice Department published proposed final judgments and the related competitive impact statements for public…

On April 5, 2016 the Department of Justice held a press conference to announce a “new” program involving enforcement of the Foreign Corrupt Practices Act (FCPA)(press release here). The program, generally referred to as the Pilot Program, is outlined in a document released by the Fraud Section of the Criminal Division of DOJ entitled: “The…

Antitrust is hot! Well, as hot as antitrust gets: the mainstream media has covered antitrust issues a few times recently, and policy discussions have broken out in Congress and on the campaign trail. While I disagree with many of the comments, I think it is great that such questions are being discussed by policymakers, reporters,…

Summary On 10 March 2016, the European Court of Justice (ECJ) handed down judgments[1] that provide useful clarification regarding limits on information requests issued by the European Commission in antitrust investigations – in particular as regards the statement of reasons to be provided. Facts Following dawn raids and the opening of an investigation into suspected…

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…

On January 20, 2016, the European Court of Justice (the Court) issued a seminal preliminary ruling on the relationship between EU and Member State leniency programmes in Case C‑428/14, DHL Express (Italy) Srl and DHL Global Forwarding (Italy) SpA v. Autorità Garante della Concorrenza e del Mercato (AGCM).  The Court held that EU and Member…

As 2015 comes to a close, it’s time to take a look back at some of the major federal antitrust enforcement highlights of the year. While headline-grabbing merger challenges dominated antitrust news, the year was marked by other important antitrust developments that are worth noting. Department of Justice Enforcement Merger enforcement. In the last 12 months, only…