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Ninth Circuit Upholds Judge Robart’s RAND Determinations in Microsoft v. Motorola

August 14, 2015 | Alert | By Rich Gervase, Bruce Sokler, Sandra Badin, Michael Renaud

Late last month, the Ninth Circuit Court of Appeals issued its much-anticipated decision in Microsoft v. Motorola, a breach of contract action brought by Microsoft alleging that Motorola violated its commitment to license its standard essential patents (SEPs) on reasonable and non-discriminatory (RAND) terms.
The federal antitrust enforcement agencies have trumpeted their preferences for structural, as opposed to conduct, remedies as the solution to potentially anticompetitive mergers.
On June 30, 2015, the same day as the launch of Apple’s new streaming music service, the Second Circuit Court of Appeals coincidentally affirmed a district court ruling that Apple conspired with five of the country’s largest book publishers to fix prices for ebooks and coerce Amazon to change its pricing model to accommodate those higher, fixed prices.
Eighteen months after the deal was first announced, Sysco Corporation (“Sysco”) and US Foods, Inc. (“USF”) abandoned their $3.5 billion merger following the Federal Trade Commission’s (the “FTC” or “Commission”) decisive victory in obtaining a preliminary injunction blocking the transaction.
Late last week, the United States Department of Justice (DOJ) and the Michigan Attorney General (AG) filed suit against four southern Michigan hospitals, alleging that they secretly agreed not to compete with each other in violation of Section 1 of the Sherman Act and Section 2 of the Michigan Antitrust Reform Act.
Over two and one-half years after it was initially filed, an antitrust suit brought by plaintiff ambulatory surgery centers (“ASCs”) against health insurers and a trade association of competing health systems is finally moving forward.
On May 22, 2015, in a much-watched case, the Second Circuit upheld a preliminary injunction against Actavis PLC and its wholly owned subsidiary, Forest Laboratories, LLC (collectively “Actavis” or “Forest”), finding that Actavis’s “hard switch” strategy to launch an extended-release version of its blockbuster Alzheimer’s therapy and delist the immediate-release version would likely violate Section 2 of the Sherman Act.

Harm to Potential Competition Triggers FTC Merger Challenge

June 2, 2015 | Alert | By Bruce Sokler, Farrah Short

The Federal Trade Commission (“FTC” or “Commission”) filed an administrative complaint last week challenging the proposed $1.9 billion merger of Steris Corporation (“Steris”) and Synergy Health plc (“Synergy”), charging that the transaction would significantly reduce future competition in regional markets for radiation sterilization services.

A Split FTC Accepts Fix-It-First Divestiture Remedy for Cigarette Merger

May 28, 2015 | Alert | By Bruce Sokler, Farrah Short

The Federal Trade Commission (“FTC”) accepted on Tuesday from Reynolds American Inc. (“Reynolds”) and Lorillard Inc. (“Lorillard”), subject to final approval, a Consent Order settling the agency’s significant competitive concerns with Reynolds’s proposed $27.4 billion acquisition of Lorillard by requiring the divestiture of four cigarette brands to Imperial Tobacco Group PLC. (“Imperial”).
On April 21, 2015, in a 7-2 decision authored by Justice Breyer, the U.S. Supreme Court ruled that state law antitrust claims brought against interstate pipeline companies by a group of manufacturers and other retail buyers of natural gas are not pre-empted by the Natural Gas Act (“NGA” or the “Act”).

FTC Flushes McWane in a Big Eleventh Circuit Exclusive Dealing Win

April 22, 2015 | Alert | By Bruce Sokler, Helen Kim, Timothy Slattery

The situations where exclusive dealing policies, explicit or tied to an aggressive discounting program, cross the line under the rule-of-reason remain far from clear.
In a 3-2 decision, as part of its aggressive antitrust enforcement in health care industries, the Federal Trade Commission (FTC or the Commission) announced that Cardinal Health, Inc. (Cardinal) agreed to pay $26.8 million to resolve the FTC’s allegations that Cardinal illegally monopolized the sale of low-energy radiopharmaceutical drugs in 25 geographic markets and inflated prices charged to hospitals and clinics for the drugs.
On April 14 in Washington, DC, Global Competition Review hosted its Second Annual IP & Antitrust USA conference.

Kimble and Post-Expiration Royalties: The Next Big Thing, or Much Ado About Nothing?

March 31, 2015 | Alert | By Robert Kidwell, Rich Gervase

Today, as we previewed here, the US Supreme Court analyzed the question of whether patent holders should be allowed to contract for royalty payments that continue to accrue after the expiration of the subject patent.

Hospital Wins First Round Against Largest Rival in Antitrust Suit Alleging Illegal Exclusive Dealing Agreements with Insurers

March 30, 2015 | Alert | By Bruce Sokler, Dionne Lomax, Robert Kidwell, Farrah Short

The waves of change affecting health care providers include reimbursement and funding developments, the impact of the Affordable Care Act, technological and medical advances, provider network design transformations imposed by payors — and antitrust.
Last week, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) co-hosted the second installment of their public workshop series, “Examining Health Care Competition.”
The Federal Trade Commission (“FTC”) on Monday completed its review of Novartis AG’s (“Novartis”) proposed $16 billion acquisition of GlaxoSmithKline’s (“GSK”) oncology drug portfolio with an announced consent decree that requires limited divestitures of BRAF- and MEK-inhibitor drugs used to treat melanoma, ovarian, colorectal, non-small cell lung, and other cancers.
On February 25, 2015, in a 6-3 decision authored by Justice Kennedy, the Supreme Court upheld the Federal Trade Commission’s (FTC) decision finding that the North Carolina Board of Dental Examiners (Board), although a state agency, was not exempt from federal antitrust laws when it sent 47 official cease-and-desist letters to non-dentist teeth whitening service providers.

FTC Tastes Sweet Victory in POM Wonderful Deceptive Advertising Appeal

February 17, 2015 | Alert | By Timothy Slattery

The District of Columbia Circuit Court of Appeals handed the Federal Trade Commission a critical win on January 30, 2015 by affirming the Commission’s January 2013 decision holding POM Wonderful LLC in violation of the FTC Act for its deceptive advertisements alleging pomegranate juice and supplements could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.
In a much anticipated appellate health care antitrust decision, the United States Court of Appeals for the Ninth Circuit upheld a district court’s finding that a consummated hospital-physician group merger violated Section 7 of the Clayton Act, despite the provider-defendants’ assertion of an efficiencies defense based on integrated care and risk-based reimbursement.
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