Tag Archives: Antitrust

Antitrust Legacy of High Court Nominee Gorsuch in Private Practice

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles, Sherman Act 2
Last month, we discussed the antitrust jurisprudence  of Neil Gorsuch, currently of the U.S. Court of Appeals for the Tenth Circuit judge and nominee to the Supreme Court of the United States. Our discussion focused on three of Gorsuch’s opinions during his decade-long tenure with the court of appeals. Even before Gorsuch was nominated to … Continue Reading

The Antitrust Points of View of Supreme Court Nominee Neil Gorsuch

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles
Last March, we wrote a series of articles discussing Supreme Court Justice Antonin Scalia’s antitrust legacy on the Supreme Court. We noted Scalia’s admitted discomfort with the Sherman Act, specifically with holding corporate defendants, even monopolists, liable absent strong evidence of anti-competitive conduct. His likely successor appears to possibly hold similar views of the antitrust … Continue Reading

Carl Hittinger Examines American Monopolists through the Lens of History, Politics

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, BakerHostetler, Sherman Act 2
Partner Carl Hittinger has authored a series of articles for The Legal Intelligencer that explores the history of select American monopolists by posing two fundamental questions: Why have some monopolists succeeded in gaining, maintaining and increasing monopoly power where others have failed? Why does history keep repeating itself and the basic lessons taught have not … Continue Reading

Abrams, Commins, Foix Author Article on Antitrust Suit Counterclaims

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, BakerHostetler
Partners Robert Abrams, Gregory Commins and Danyll Foix authored an article published in “The Antitrust Review of the Americas 2017,” published by Global Competition Review. Their article, “United States: Private Antitrust Litigation,” reviews counterclaims in antitrust litigation in the United States and discusses the strategies behind their use in intellectual property, franchise, distribution and other … Continue Reading

FTC Still Ramping Up Antitrust Review of Health Care Mergers

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Healthcare, Merger Review
Last month, we reported on the Federal Trade Commission’s (FTC) steady filing of injunctions to block what are effectively local mergers of small health care providers. In 2007, the FTC filed suit in Saint Alphonsus Medical Center v. St. Luke’s Health System, its first successful challenge to a hospital merger in recent history. Since then, … Continue Reading

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
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