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FTC Merger Challenge Based on Harm to Potential Competition Rejected by District Court

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

In what has become rare of late, the Federal Trade Commission (“FTC”) suffered a litigation loss in a merger case with a district court’s denial of a preliminary injunction to block the deal pending administrative litigation. FTC v. Steris Corporation, 1:15-cv-01080 (N.D. Ohio September 24, 2015).
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Kissing Camels Antitrust Suit Against Health System Moves Past Another Hump in the Road

September 3, 2015 | Alert | By Bruce Sokler, Farrah Short

In June, an antitrust suit brought by plaintiff ambulatory surgery centers against a health system, health insurers, and a trade association survived a motion to dismiss. Last week, the ASCs’ case cleared the hump of summary judgment and will now proceed to trial.
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Investment Fund Violates “Investment-Only” HSR Exemption

August 26, 2015 | Alert | By Bruce Sokler, Dionne Lomax, Robert Kidwell, Farrah Short

At the request of the Federal Trade Commission (“FTC” or “Commission”), the Department of Justice (“DOJ”) filed this week in federal court a proposed settlement to charges that an investment fund violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a (“HSR Act” or “Act”) by improperly relying on the “investment-only” exemption.
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The Federal Trade Commission’s (“FTC” or “Commission”) ever-expanding list of enforcement actions to preserve competition for generic pharmaceuticals just grew in a new direction. 
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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.
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The federal antitrust enforcement agencies have trumpeted their preferences for structural, as opposed to conduct, remedies as the solution to potentially anticompetitive mergers.
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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.
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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.
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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.
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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.
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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.
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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.
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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”).
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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”).
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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.
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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.
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On April 14 in Washington, DC, Global Competition Review hosted its Second Annual IP & Antitrust USA conference.
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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.
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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.
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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.”
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