Archives: Antitrust Litigation

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Patent Defeats Antitrust in Latest Test at Supreme Court

In Kimble v. Marvel Entertainment, 576 U.S. ____ (2015), the U.S. Supreme Court considered whether to overturn Brulotte v. Thys, 379 U.S. 29 (1964), its 1964 decision holding that it was per se unlawful for a patent owner to charge royalties for use of a patented invention after the licensed patent has expired. In a … Continue Reading

“Ain’t Wastin’ Time No More”* — Doctors, Vets, and Lawyers in the Antitrust Crosshairs

By Jonathan Lewis on June 26, 2015 Posted in Antitrust Exemptions & Immunities, Antitrust Litigation, Sherman Act 1

Supreme Court Decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission Prompts Legal Challenges to State Professional Boards Earlier this month a Texas federal district court judge granted a motion by Teladoc, Inc. (Teladoc) for a preliminary injunction enjoining the Texas Medical Board (TMB) “from taking any action to implement, enact, … Continue Reading

Collusion Course: The Limits of Hot Documents

By Lee Simowitz on June 17, 2015 Posted in Antitrust Litigation, Sherman Act 1

Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving actual injury to competition. Such precious nuggets lead inexorably to near-automatic liability for the defendants. But what if the nugget … Continue Reading

FTC Failure to Adopt Section 5 Guidelines Still Hot-Button Issue

By Carl Hittinger and Mitchell Oates on June 8, 2015 Posted in Antitrust Litigation, Sherman Act 5

Section 5 of the FTC Act gives the Federal Trade Commission the authority to take action against “unfair methods of competition.” The act was enacted over 100 years ago, and its legislative history indicates that it was left to the FTC to provide specific content to this broad and general language. However, there is still … Continue Reading

Product Hopping and Antitrust: Mylan Court Dismisses Claims on Summary Judgment, Citing Need to Avoid Chilling Pharmaceutical Innovation

By Jeffry Duffy on May 29, 2015 Posted in Antitrust Litigation, Patents, Sherman Act 1, Sherman Act 2

A recent summary judgment opinion from the Eastern District of Pennsylvania breaks new ground in the developing antitrust law on “product hopping” claims. “Product hopping” refers to the practice of changing the form or dosage of a branded drug without changing its underlying composition. Though drug manufacturers often make such changes for legitimate business reasons, … Continue Reading

‘Actavis’ Still Raising More Questions Than It Answers

By Carl Hittinger and Mitchell Oates on May 21, 2015 Posted in Antitrust Litigation, Patents

Nearly two years after the U.S. Supreme Court’s decision in Federal Trade Commission v. Actavis, 133 S. Ct. 2223 (2013), “reverse payment” settlements in patent litigation between brand-name drug manufacturers and potential generic entrants remain a hot topic in the antitrust world. At the American Bar Association’s Antitrust Law Spring Meeting, held in Washington, D.C., … Continue Reading

Oregon Federal Court Weighs In on Disputed Umbrella Theory of Damages

By Danyll Foix on March 31, 2015 Posted in Antitrust Litigation

An Oregon federal court recently relied on the so-called umbrella theory of damages to decide that the plaintiffs had an antitrust injury necessary to pursue an injunction. While this decision has garnered attention for enjoining the defendants from completing an acquisition, it also is noteworthy for its reliance on the disputed umbrella theory of damages. … Continue Reading

FTC’s Appellate Win Reflects Focus on Health Care Consolidation

By Carl Hittinger and Mitchell Oates on March 10, 2015 Posted in Antitrust Litigation, Articles, FTC Act, Healthcare, Merger

In an important victory for the Federal Trade Commission in the appellate courts, the U.S. Court of Appeals for the Ninth Circuit recently affirmed last year’s decision from the District of Idaho in Saint Alphonsus Medical Center v. St. Luke’s Health System, No. 14-35173, in which the FTC successfully sued to undo a 2012 merger … Continue Reading

‘Product-Hopping’ Can Be Snagged Under the Antitrust Laws

By Carl Hittinger, Gary Levin and Bill DeVinney on February 2, 2015 Posted in Antitrust Litigation, Articles

The Drug Price Competition and Patent Term Restoration Act, more commonly known as the Hatch-Waxman Act, together with the patent laws, attempt to advance the competing goals of preserving pharmaceutical companies’ incentives to make the staggering investments necessary to bring new, improved drugs to market, as well as fostering lower prices through competition from generic … Continue Reading

The FTC’s Section 5 Authority Discussed in Article by BakerHostetler Antitrust Attorneys

By BakerHostetler on January 14, 2015 Posted in Antitrust Litigation, Articles, Sherman Act 5

BakerHostetler antitrust attorneys Carl Hittinger and Jeffry Duffy authored the article, “FTC Section 5 in 2014: An Unexpected Attack, A New Frontier,” published in Law360 on December 22. The authors cover the FTC’s push to exercise its Section 5 authority in new areas; ever since Section 5 of the Federal Trade Commission Act was created … Continue Reading

Hitting Below the Belt? MMA Fighters Allege That UFC Has Monopolized the Mixed Martial Arts Game

By Bill DeVinney on December 19, 2014 Posted in Antitrust Litigation, Sherman Act 2

Throughout their history, professional sports leagues, including the National Football League, the National Basketball Association, and the National Hockey League, have generated high-profile antitrust litigation. The nascent sport of mixed martial arts now looks as if it will join that list, as two MMA fighters have brought a putative class action in the Northern District … Continue Reading

FTC Aggressively Pressing ‘Antitrust Trumps IP’ Theme

By Carl Hittinger and Jeffry Duffy on December 8, 2014 Posted in Antitrust Litigation, Articles, Patents

The Federal Trade Commission has recently brought its considerable institutional weight to bear in two developing areas at the intersection of unfair competition and intellectual property law. Continuing its crusade against “reverse-payment” patent infringement settlements in the pharmaceuticals sector, the FTC is promoting—especially in the Third Circuit—a maximalist interpretation of the U.S. Supreme Court’s 2013 … Continue Reading

BakerHostetler Lawyers Publish Chapter on Exemptions and Immunities in Antitrust Litigation

By BakerHostetler on December 1, 2014 Posted in Antitrust Exemptions & Immunities, Antitrust Litigation, Articles, BakerHostetler

The 2015 Antitrust Review of the Americas features a chapter, “‘United States: Private Antitrust Litigation,” authored by BakerHostetler Antitrust Chair Robert G. Abrams, Partner Gregory J. Commins Jr., and Partner and Editor of Antitrust Advocate Danyll W. Foix. They wrote: “US law is littered with dozens of immunities and exemptions that limit or preclude the … Continue Reading

Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims

By Danyll Foix on October 27, 2014 Posted in Agriculture, Antitrust Exemptions & Immunities, Antitrust Litigation

A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the antitrust laws – a result that may soon collide with rulings by other courts considering the same issue. Several years ago, a Pennsylvania mushroom cooperative, its members, and various other … Continue Reading

Leave My Employees Alone! You Promised You Wouldn’t Hire/Solicit Them

By Jonathan Lewis on June 13, 2014 Posted in Antitrust Litigation, Government Investigations, Sherman Act 2

With the antitrust class action against Google, Apple, Intel and other Silicon Valley heavyweights nearly in the books ($300 million plus in settlements and millions more in defense fees later), it is time once again to ask what this settlement means for the continued use of clauses in merger and other types of agreements like … Continue Reading

How Direct Is Direct? Judge Posner Clarifies the Extraterritorial Scope of the Antitrust Laws via the “Direct” Effects Test under the FTAIA

By Erik Raven-Hansen on April 8, 2014 Posted in Antitrust Litigation

A recent decision from Judge Posner in the Seventh Circuit, Motorola Mobility LLC v. AU Optronics, offers the latest insight into the extraterritorial reach of the Sherman Act. In dismissing Motorola’s price-fixing claims of more than $3.5 billion, Judge Posner continued the clarification of the Foreign Trade Antitrust Improvements Act (“FTAIA”), by narrowing the conduct that constitutes … Continue Reading

Retaining the Attorney-Client Privilege in a Merger

By Danyll Foix on February 20, 2014 Posted in Antitrust Litigation, Merger

Editors’ Note: This post, originally authored by Jason D. Cabico and Steven H. Goldberg and published by BakerHostetler, is reprinted with permission. In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, Chancellor Strine of the Delaware Chancery Court recently reaffirmed that the target company in a Delaware merger is the … Continue Reading

FTC Victory in Idaho Hospital-Physician Acquisition Case Should be a Wake-Up Call for Future and Past Deals

By Jonathan Lewis and Lee Simowitz on January 28, 2014 Posted in Antitrust Litigation, BakerHostetler, Government Investigations, Healthcare, Merger

The ink is still drying on the Idaho federal district court’s order requiring St. Luke’s Health System (“St. Luke’s”) to unwind its acquisition of Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho. But hospitals considering future acquisitions of physician groups, and those that the FTC … Continue Reading

Past as Prologue: Rebirth of the Merger Trial and the Bazaarvoice Case

By Lee Simowitz, Jonathan Lewis and Judy Gechman on January 21, 2014 Posted in Antitrust Litigation, Government Investigations, Merger, Merger Review, Premerger Notification, Sherman Act 7

For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials. By establishing a file-and-wait system rather than the old catch-me-if-you-can non-system, the Act enabled the antitrust enforcement agencies to prevent the consummation of potentially anticompetitive mergers until they completed their investigation, and … Continue Reading

Patent Trolls, Anti-Trolls, and Antitrust Law Collide in Patent Licensing Dispute

By Bill DeVinney on December 13, 2013 Posted in Antitrust Litigation, Patents, Sherman Act 1

We previously wrote that regulators are considering using antitrust laws to reign in perceived abuses by non-practicing entities or, more familiarly, “patent trolls” – entities that purchase the rights to patents not to practice the patents but to enforce them through licensing or litigation. In a recent case, antitrust laws are taking center stage in … Continue Reading

Give It Back! Disgorgement – Another FTC Arrow against Reverse-Payment Settlements that Delay Generic Entry

By Jonathan Lewis on December 3, 2013 Posted in Antitrust Litigation, Healthcare, Sherman Act 2

If the uncertainty that the Supreme Court’s Actavis decision injected into the world of reverse-payment settlement litigation wasn’t enough to get your attention, then the FTC’s recent effort to obtain disgorgement from Cephalon in a reverse-payment case should do so. Cephalon is arguing that the federal district court should dismiss the FTC’s near six-year-old complaint … Continue Reading

Could an Idaho Healthcare Merger Impact Other Mergers, Including the American/US Airways Merger?

By Jonathan Lewis and Lee Simowitz on October 23, 2013 Posted in Antitrust Litigation, Government Investigations, Healthcare, Merger, Merger Review, Sherman Act 7

With the trial over, post-trial briefs due November 1, and closing arguments scheduled for November 7, a lot more is at stake than whether St. Luke’s Health System (“St. Luke’s”) can keep Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho. St. Luke’s closed its acquisition … Continue Reading

Update: Where (and What) is the Harm?

By Bill DeVinney on September 6, 2013 Posted in Antitrust Litigation, Sherman Act 1

Court denies antitrust plaintiffs’ request to amend complaint in LIBOR manipulation case We previously wrote about Judge Buchwald of the Southern District of New York dismissing plaintiffs’ antitrust claims arising from the LIBOR manipulation scandal. Recently, the Court denied plaintiffs’ request to cure the defects in its claims by filing a second amended complaint. In re LIBOR-Based … Continue Reading

Court Tackles Product Market Definition for NFL-Licensed Apparel Case

By Bill DeVinney on August 16, 2013 Posted in Antitrust Litigation

Beginning in 1922 with the Supreme Court’s decision in Federal Baseball Club of Baltimore v. National League of Professional Baseball, professional sports leagues have been involved in antitrust litigation. In those cases, the parties often disagree about the relevant product market, and particularly whether the relevant product is the league as a whole that competes against other … Continue Reading