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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 [...]

FTC Commissioner Brill Provides Thoughts on Abandoned IDT/PLX Combination

The Federal Trade Commission’s investigation of the now-abandoned merger between Integrated Device Technologies and PLX Technology was the topic of remarks delivered by FTC Commissioner Julie Brill at Skadden’s and Compass/Lexecon’s annual “Antitrust in the Technology Sector” program in Palo Alto, California, on January 28. “The issues raised by IDT/PLX spanned the Merger Guidelines,” Brill said.

In December 2012, the FTC issued an administrative complaint seeking to prevent Integrated Device Technology’s proposed $330 million acquisition of PLX Technology, Inc. The FTC’s complaint alleged that the combined company would possess a near-monopoly on the production of PCIe swit [...]

Third Circuit Holds the Line on Antitrust Standing

In order to assert an antitrust injury, a plaintiff needs to be a consumer or a competitor in the restrained market, the U.S. Court of Appeals in Philadelphia ruled yesterday. If a company makes the choice not to compete, then it will lack standing to pursue antitrust claims.

Ethypharm S.A. France, a French pharmaceutical company, brought an antitrust action in 2008 against Abbott Laboratories.  Ethypharm alleged that the failure of its branded fenofibrate drug, Antara, to compete with TriCor, which was developed by a French company named Laboratories Fournier and distributed by Abbott in the United States, was a direct result of Abbott’s anticompetitive conduct.

Ethypharm did not sell A [...]

Motion to Intervene in Government’s E-Book Case to Appeal Partial Settlement Rejected

The federal district court in New York City yesterday denied a “consumer’s” motion to intervene in the Justice Department’s action against Apple, Inc. and five publishers for allegedly conspiring to fix prices for electronic books or “e-books.” The motion was filed by Bob Kohn for the purpose of appealing from a September 6 final judgment ((CCH)  2012-2 Trade Cases ¶78,042), resolving the government’s antitrust allegations against three of the five publishers.

Kohn describes himself as a “consumer of digital goods, author of a treatise on copyright, and founder and CEO of technology companies directly involved in the digital distribution of music and e-books,” the court explained. He gain [...]

U.S. Consent Decree with Three Publishers over E-Book Pricing Approved

The federal district court in New York City yesterday approved a U.S. consent decree that resolves U.S. Department of Justice allegations against three publishers for participating in a conspiracy to fix prices for electronic books or “e-books.” The consent decree with Hachette Book Group, Inc., HarperCollins Publishers L.L.C., and Simon & Schuster, Inc. was found to be in the public interest.

The government alleged that the three settling publishers and two non-settling publishers–MacMillan and Penguin Group–acted collectively to switch to a new sales model for e-books known as the “agency model” and entered into functionally-identical agreements with non-settling defendant Apple, Inc., wh [...]

Seventh Circuit Sitting En Banc Reverses in Potash, Announces Second Most Important of All FTAIA Opinions, Shores Up the Text Messaging Position on Conspiracy Pleading

Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I believe something important and very positive happened in the Seventh Circuit yesterday: the en banc reversal in Minn-Chem, Inc. v. Agrium, Inc., No. 10-1712 (7th Cir. June 27, 2012) (en banc) (“Potash II”). The court ruled that plaintiffs had pled a foreign price-fixing conspiracy that it is subject to U.S. antitrust under the Foreign Trade Antitrust Improvements Act. I suppose Potash II is itself a case primarily about FTAIA, and it is now second in importance within the FTAIA caselaw only to the Supreme Court’s Empagran ruling. But as I’ve suggested before, I [...]

U.S. Supreme Court to Consider State Action Doctrine, Class Action Certification Next Term

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 [...]

Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal

Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of Trade Act (KRTA). Kansas Supreme Court precedent that called for a “reasonableness rubric”—a determination of whether a restraint was reasonable in view of all of the facts and circumstances—was overruled. In addition, the court decided that the “rule of reason” of federal antitrust jurisprudence did not apply. It refused to read unwritten elements, such as a reasonableness requirement, into the otherwise clear legislative language of the Kansas antitrust law.

The action [...]

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 [...]

Second Circuit Corrects Misapplication of Twombly Plausibility Test in Boycott Case

The federal district court in New York City should not have rejected allegations that a magazine wholesaler was driven out of business as a result of an antitrust conspiracy, the U.S. Court of Appeals in New York City decided earlier this week. On April 3, the appellate court vacated the lower court’s judgment granting a motion to dismiss the wholesaler’s Sherman Act Sec. 1 claim for failure to state a claim and denying leave to file an amended complaint.

According to the appellate court, the lower court misapplied the plausibility standards set by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129S. Ct.1937 (2009). The lower court should not have dismissed pl [...]

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