Archives: Sherman Act 1

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Ohio v. American Express: The Supreme Court Credits American Express’s Anti-Steering Provisions

In a 5-4 decision in Ohio v. American Express, the Supreme Court affirmed that the anti-steering provisions of American Express’s merchant agreement do not violate Section 1 of the Sherman Act. Credit card companies’ core business involves two transactions. First, the credit card company provides credit services to its cardholders, as well as additional benefits … Continue Reading

Caught Between a Rock and a Hard Place: The Second Circuit to Decide Appeal From Cartel Defendants Who Argued Compliance With Chinese Law Resulted in Sherman Act Violations

On January 28, 2016, the United States Court of Appeals for the Second Circuit heard arguments on whether the doctrines of act of state, foreign sovereign compulsion, and international comity required the reversal of a jury’s verdict against two Chinese companies that were found liable for violating Section 1 of the Sherman Act. The plaintiffs … Continue Reading

FTC Weighs in on Upcoming Third Circuit ‘Product-Hopping’ Appeal

“Product-hopping” refers to a practice employed by some brand-name pharmaceutical companies in which the company attempts to shift users from an older prescription drug that is going off-patent and will soon face generic competition to a newly introduced similar product from that company. Often, the new product will have a significant term of patent protection … Continue Reading

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

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

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

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

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

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

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

Update: Where (and What) is the Harm?

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

BakerHostetler Antitrust Lawyer Co-Authors Book on Price Fixing

BakerHostetler Partner Lee Simowitz has co-authored The Executive’s Antitrust Guide to Pricing: Understanding Implications of Typical Marketing, Distribution, and Pricing Practices (Thomson Reuters/Aspatore 2013). Written as a practical guide for business professionals, the guide answers the most common antitrust pricing questions facing C-Level executives, marketing heads, and salespeople in straightforward, easy to understand language. The book … Continue Reading

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

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?

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

NC Governor Signs Law Banning Most Favored Nations Provisions in Health Care Contracts

Despite opposition and Blue Cross Blue Shield of North Carolina’s claim that it “has not used ‘most favored nation’ clauses in [its] new contracts and in fact [they are] not part of our strategy to use those clauses on contracts executed in the future,” on May 8 North Carolina’s Governor, Pat McCrory, signed into law … Continue Reading

Where (and What) Is the Harm?

Antitrust claims in LIBOR manipulation cases dismissed for lack of antitrust injury. The recent LIBOR suppression scandal has given rise to numerous lawsuits, both individual and putative class actions based on several theories of recovery, that have been consolidated in the Southern District of New York.  LIBOR is calculated by averaging certain British Banking Association … Continue Reading

Recent Decisions Provide Guidance for Litigating Capper-Volstead Cases

BakerHostetler’s Danyll W. Foix examines recent litigation decisions regarding Capper-Volstead Act in ABA publication. Capper-Volstead has been squarely raised in recent litigation involving mushrooms, milk, eggs, potatoes, cattle, and other agricultural products.  In addition to addressing the substance of Capper-Volstead, decisions in these cases have considered a number of procedural and practical issues that arise in … Continue Reading

Common and Predominating Damages: Comcast Opinion Extends Wal-Mart v. Dukes’ Standards for Class Certification but Leaves the Question of Daubert for Another Day

Co-authored by: John B. Lewis, Dustin M. Dow, Patrick T. Lewis, Danyll W. Foix, and Rodger L. Eckelberry Editor’s Note: This Executive Alert was published by members of BakerHostetler’s Securities Litigation and Regulatory Enforcement Team, Employment Team, and BakerHostetler’s Class Action Team. On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, Case … Continue Reading

Do Not Pass Go, Do Not Collect $200: Michigan Statute and Regulatory Order Banning MFN Provisions in Provider Contracts Ends Government Antitrust Lawsuit Against Michigan Blue

In the wake of the passage of a Michigan statute and regulatory order banning the use of most favored nation (“MFN”) clauses by insurers, health maintenance organizations, and nonprofit health care corporations in contracts with providers, the Department of Justice Antitrust Division (“DOJ”), the State of Michigan, and Blue Cross Blue Shield of Michigan (“Michigan … Continue Reading

Oklahoma, OK and Not OK: The Right and Wrong Paths to Provider Joint Contracting

In the view of the FTC and the Justice Department, competing health care providers can contract jointly with third-party payers only if the providers integrate clinically (or financially) so that gains in efficiency and quality of care counterbalance any resulting price increases.  The FTC has filled in the blanks as to what constitutes adequate clinical … Continue Reading

No Standing for Illegal Drugs: Third Circuit Limits Antitrust Standing for Foreign Drug Manufacturers Absent FDA Approval

A Third Circuit panel recently ruled that a foreign drug manufacturer lacks antitrust standing when it could only sell its product in the United States through a distributor. In Ethypharm S.A. France v. Abbott Laboratories, Ethypharm, a French company, manufactured the drug fenofibrate and sold it under the brand name Antara.  Because of the substantial time … Continue Reading

When Will They Learn? Doctors Continue to Face Antitrust Charges for Jointly Negotiating Contracts without Clinical or Financial Integration

Legitimate joint marketing and selling arrangements have the potential to produce efficiencies.  This is particularly so, for example, where the arrangement enables the participants to make or market products that they could not do alone.  The Antitrust Guidelines for Collaborations among Competitors, Statements of Antitrust Enforcement Policy in Health Care, as well as scores of … Continue Reading

Burn Before Reading: Hot Documents and Antitrust Claims

Antitrust law and economics seem like dark arts to outsiders, an impression that antitrust lawyers are none too eager to dispel.  But everyone can appreciate a smoking gun document that seems to brand its author as a hardened violator of the antitrust laws.  Consider the memorandum written by a large waste-disposal company about a small … Continue Reading

I Don’t Care How Much I Pay (too Much, the Magic Bus)* – Part II

Apparently, Mary Hanson, Tracey Nobel, Stefanie Nocera and the class they hope to represent do! In a prior post, we noted that the U.S. Department of Justice and State of New York filed an antitrust complaint that seeks to unwind a joint venture formed in 2009 by two competing tour bus operators in New York … Continue Reading

I Don’t Care How Much I Pay (too Much, the Magic Bus)*

DOJ and New York sue to restore tour bus competition Last week, the U.S. Department of Justice and State of New York filed an antitrust complaint that seeks to unwind a joint venture formed in 2009 by two competing tour bus operators in New York City.  The tour bus operators supposedly accounted for about 99 … Continue Reading

Lonely Conspirators: Antitrust Liability When Nobody Joins Your Conspiracy

One is the loneliest number that you’ll ever do Two can be as bad as one It’s the loneliest number since the number one                    – Three Dog Night The worst antitrust offenses involve conspiracies involving multiple actors.  Hard-core offenses under Section 1 of the Sherman Act, such as price-fixing, market division, customer allocation, or … Continue Reading

No Poaching Here – “No-Hire/Non-Solicitation” Provisions in Transactional Agreements

So, what does last month’s antitrust lawsuits against eBay by the DOJ and the State of California mean for the continued use of merger and other types of agreements (like NDAs and confidentiality agreements) that often contain clauses restricting one party from soliciting or hiring the other’s employees?  Probably not much.… Continue Reading
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