Tag Archives: Antitrust

Caution: Sealed Package – There Is More At Risk Than Unsealing

Photo of Carey BusenBy Carey Busen on Posted in Class Action Litigation, Discovery
Parties litigating in courts across the country routinely file some documents under seal as a matter of course. Sealing filed documents often is a practical necessity – parties need not disclose certain confidential information in the public domain, and parsing through filings and conferring with opposing counsel and third parties to determine what is truly … Continue Reading

Antitrust, Appointments and Presidential Front-Runners: Part 1

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust & Politics, Articles
Substantial and substantive issues of national importance are often ­obscured by the usual myopic and frenzied focus on political talking points, sensational sound bites and collateral name-calling. This is perhaps better exemplified in presidential elections than contests for other political offices. The current race to the presidency is plainly setting a new high (or low) … Continue Reading

Second Circuit Resurrects LIBOR Antitrust Case Against Bank Defendants, But Reprieve May Be Short-Lived

Photo of Terry SullivanBy Terry Sullivan on Posted in Antitrust Litigation, Class Action Litigation
On May 23, 2016, the Second Circuit breathed new life into the class action case against 16 banks belonging to the British Bankers’ Association (the Banks), vacating the Southern District of New York’s dismissal of the case for lack of antitrust injury and remanding the case on the portion of antitrust standing that requires the … Continue Reading

Scalia’s Antitrust Legacy: Part 2, The Dissenting Opinions

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust Litigation, Articles
In March, we wrote about Justice Antonin Scalia’s three majority opinions in substantive antitrust cases. Notably, Scalia also authored three dissenting opinions in substantive antitrust cases, in rapid-fire succession in 1991, ’92 and ’93. In the majority opinions, Scalia seized upon alternative, innocuous explanations for alleged anticompetitive conduct, even when an anticompetitive motive was equally … Continue Reading

Sounding the Alarm: White House Agency Warns of Decreasing Competition Across U.S. Economy

Photo of Bill DeVinneyBy Bill DeVinney on Posted in Antitrust & Politics
The Council of Economic Advisors, a White House agency charged with advising the president on economic policy, recently issued a report, Benefits of Competition and Indicators of Market Power, addressing the state of competition in the United States economy. The report expresses concern that competition is being eroded in many industries across the U.S. economy, … Continue Reading

There Was a Panel on What?? Notes on the ABA Antitrust Spring Meeting Panel on Marijuana Law

Photo of Julian PerlmanBy Julian Perlman on Posted in Agriculture, Events
Attendees at this year’s Spring Meeting may have been surprised by an unexpected panel: an overview of the status of the law related to the legalization of marijuana and antitrust issues facing the nascent industry. However, a single number explains why the ABA and others are beginning to address a topic that many legal practitioners … Continue Reading

Supreme Court Nominee Garland: An Assessment of Antitrust Expertise

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust & Politics, Articles
Last month, our antitrust column was devoted to the late Justice Antonin Scalia’s antitrust legacy on the U.S. Supreme Court, focusing on his three antitrust opinions for the majority. At that time, we promised to continue that analysis, focusing this month on Scalia’s many antitrust dissents. However, history intervened and President Obama nominated Chief Judge … Continue Reading

Justice Scalia’s Antitrust Legacy: Part 1, The Majority Opinions

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust Litigation, Articles
Justice Antonin Scalia once observed that “the American people are neither sheep nor fools,” in McConnell v. Federal Election Commission, 540 U.S. 93 (2003). During his 30 years on the U.S. Supreme Court, he wrote 104 majority opinions but only three of those addressed substantive antitrust issues. This article addresses those three seminal antitrust opinions. Next … Continue Reading

Discriminating Tastes: Court Puts Long-running Robinson-Patman Act Case To Rest

By Lee Simowitz on Posted in Antitrust Compliance, Robinson-Patman Act
Described as the Rodney Dangerfield of the antitrust laws, the Robinson-Patman Act—which prohibits anticompetitive price discrimination—gets no respect. The Justice Department and the Federal Trade Commission unapologetically refuse to enforce the Act, and the FTC has called for its repeal. Courts often treat the Act with undisguised disdain; one court (quoting a law review article) … Continue Reading

Ruling on Economic Favoritism Puts ‘NC Dental’ Back in Spotlight

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation
In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the constitutional guarantees of due process or equal protection. The court noted that such action might still violate … Continue Reading

Better Late Than Never? FTC Finally Releases Guidance on Section 5

Photo of Danyll FoixBy Danyll Foix on Posted in Sherman Act 5
After years of academic debate and internal deliberation, the Federal Trade Commission today unveiled a “Statement of Enforcement Principles” that generally describes conduct prohibited by Section 5 of the FTC Act. Section 5 gives the FTC authority to take action against “unfair methods of competition.”  Legislative history indicates that it was left to the FTC to … Continue Reading

Patent Defeats Antitrust in Latest Test at Supreme Court

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Litigation, Patents, Sherman Act 2
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 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

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

Fit to Be Tied: Appeals Court Redefines Tying Arrangements Based on Bundled Pricing

By Lee Simowitz on Posted in Antitrust Compliance, Sherman Act 2
Corporate antitrust compliance programs often spotlight the dangers of tying arrangements. Those risks arise when a seller with a dominant position in one product coerces its customers by offering that must-have product only if customers buy a second product that they don’t want (or at least would rather buy elsewhere). Tying arrangements are easy for … Continue Reading

Google Faces European Antitrust Investigation

Photo of Julian PerlmanBy Julian Perlman on Posted in Government Investigations, International Antitrust
It’s official: on Wednesday, in a formal Statement of Objections, the European Union’s antitrust chief formally accused Google of abusing its dominant position in the web search arena. The European Commission is focused on Google’s alleged practice of skewing search results to divert users of Google’s search engine to other Google-owned websites, products, and services, particularly … 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 Commissioner Wright Calls for Vote on Section 5 Guidelines

Photo of Danyll FoixBy Danyll Foix on Posted in BakerHostetler, Events, Sherman Act 5
FTC Commissioner Joshua Wright, during yesterday’s keynote speech at BakerHostetler’s Section 5 Symposium, announced his plan to call for the FTC Commissioners to vote on three proposed definitions of Section 5’s “unfair methods of competition.” Covering the Section 5 Symposium and Commissioner Wright’s announcement, Global Competition Review wrote: “Joshua Wright will ask his four Federal Trade Commission … 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

The Beat Goes On: Antitrust Enforcement and Healthcare*

By Jonathan Lewis on Posted in Government Investigations, Healthcare
In one form or another, the Federal Trade Commission (FTC) has been banging the drum that there is no inconsistency between antitrust enforcement and healthcare. The latest to pick-up the drumbeat is the chair of the FTC herself, Edith Ramirez. In an article appearing in the prestigious New England Journal of Medicine (NEJM) titled “Antitrust … Continue Reading

Leading Litigator and Antitrust Attorney Carl Hittinger Joins BakerHostetler in Philadelphia

Photo of BakerHostetlerBy BakerHostetler on Posted in BakerHostetler
Philadelphia, PA – August 13, 2014—BakerHostetler announced that prominent litigator and antitrust counsel Carl W. Hittinger has joined the firm as a partner and litigation coordinator in its Philadelphia office. Hittinger arrives from the Philadelphia office of DLA Piper, where he was co-chair of the firm’s Antitrust and Trade Regulation Group. He is the first … Continue Reading
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