Archives: Antitrust Litigation

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

Photo of Jeffry DuffyBy Jeffry Duffy on 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

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on 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

Photo of Danyll FoixBy Danyll Foix on 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

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on 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

Photo of Carl HittingerPhoto of Gary LevinPhoto of Bill DeVinneyBy Carl Hittinger, Gary Levin and Bill DeVinney on 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

Photo of BakerHostetlerBy BakerHostetler on 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

Photo of Bill DeVinneyBy Bill DeVinney on 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

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on 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

Photo of BakerHostetlerBy BakerHostetler on 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

Photo of Danyll FoixBy Danyll Foix on 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 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 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

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 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 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

Photo of Bill DeVinneyBy Bill DeVinney on 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 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 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?

Photo of Bill DeVinneyBy Bill DeVinney on 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

Photo of Bill DeVinneyBy Bill DeVinney on 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

Supreme Court Rules That “Pay for Delay” Generic Drug Patent Settlements Are Not Shielded From Antitrust Liability

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Litigation, FTC Act, Healthcare, Patents
The Supreme Court has held that the antitrust laws may forbid patent settlements that delay the market entry of generic drugs in return for large payments from manufacturers of competing branded drugs.  The Court’s ruling rewarded the dogged efforts of the Federal Trade Commission to expose those settlements—which the FTC labels “pay for delay”—to antitrust … Continue Reading

NC Dentists Can’t Stop Competition from Other Providers of Teeth-Whitening Services

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Litigation, FTC Act, Government Investigations, Healthcare
Court ruling may impact how professionals attempt to limit competition from alternative providers. The North Carolina State Board of Dental Examiners (“Board”) failed to convince the United States Court of Appeals for the Fourth Circuit that the Board’s successful effort to “expel non-dentist providers from the North Carolina teeth-whitening market” is immune from antitrust attack.  … Continue Reading

Court Approves $158.6 Million Settlement Obtained by BakerHostetler’s Antitrust Lawyers

Photo of Danyll FoixBy Danyll Foix on Posted in Antitrust Litigation, BakerHostetler, Class Action Litigation, Sherman Act 1, Uncategorized
The U.S. District Court for the Eastern District of Tennessee granted final approval of the $158.6 million settlement in the ongoing Southeast Milk Antitrust Litigation lawsuit brought by BakerHostetler’s antitrust lawyers.  Judge J. Ronnie Greer’s May 17, 2013 order approved the third settlement in the case.  It was entered between plaintiffs and defendant Dairy Farmers of America (DFA) and … Continue Reading

LIBOR Going Forward: How Will Dismissal of Antitrust Claims Affect Investigations and Private Claims?

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust Litigation, Government Investigations, Sherman Act 1
We recently wrote about the dismissal of the plaintiffs’ antitrust claims against banks involved in the LIBOR manipulation scandal for failure to allege an antitrust injury.  Since that dismissal, the court has granted plaintiffs leave to move to amend their complaints, although the court openly questioned whether the plaintiffs’ proposed amendments cured the defects in … Continue Reading
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