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DOJ Releases Electrifying New Guidance on Standard-Essential Patent Policy

February 10, 2015 | Alert | By Bruce Sokler, Timothy Slattery

The Department of Justice (the “Department” or “DOJ”) continued its multi-pronged defense of standards-setting organizations (SSOs) who adopt patent policies to prevent hold-up during licensing negotiations.

FTC and DOJ to Host Second Public Workshop on Health Care Competition

January 26, 2015 | Alert | By Bruce Sokler, Farrah Short

Last March, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) began a public workshop series entitled, “Examining Health Care Competition.”
On December 22, 2014, a federal district court in New Jersey found that Mylan Pharmaceuticals, Inc. (“Mylan”) alleged facts sufficient to plead an antitrust claim under Section 2 of the Sherman Act against defendant, Celgene Corporation (“Celgene”), for denying a generic rival access to samples of its branded drugs (Thalomid® and Revlimid®) that are distributed pursuant to a Risk Evaluation and Mitigation Strategies (“REMS”) program.
On November 19, 2014, a panel of the United States Court of Appeals for the Ninth Circuit heard oral arguments in one of the most significant antitrust health care cases in years.
On October 21, 2014, the U.S. District Court for the Southern District of Ohio granted Defendants’ motion for summary judgment, holding that Premier Health Partners (“Premier”) and its affiliate hospitals, Atrium Health Systems, Catholic Health Initiatives, MedAmerica Health Systems, Samaritan Health Partners, and Upper Valley Medical Center (collectively, “Defendants”), operating under a joint operating agreement (“JOA”), constituted a single entity incapable of conspiring in violation of Section 1 of the Sherman Act.
On October 14, 2014, the United States Supreme Court heard oral arguments in North Carolina State Board of Dental Examiners v. FTC, a U.S. Court of Appeals Fourth Circuit decision upholding an FTC finding that the North Carolina State Board of Dental Examiners (the “Board”) did not qualify for antitrust immunity after excluding non-dentists from providing teeth-whitening services.
In recent years, antitrust criminal enforcement efforts have increased around the world. These efforts focus mainly on cartels — which the Supreme Court calls “the supreme evil of antitrust” — that conspire to fix prices, rig bids, or allocate markets.
On August 5, 2014, the Tenth Circuit Court of Appeals reinstated claims of monopolization and attempted monopolization under Section 2 of the Sherman Act brought by a manufacturer of surgical bone mills against a competitor.

Antitrust and Health Care: An Update from the Federal Trade Commission

June 24, 2014 | Alert | By Bruce Sokler, Helen Kim

The interplay between the Affordable Care Act (ACA), Accountable Care Organizations (ACOs), and antitrust has been a matter of great moment for several years. It has been an issue in litigation such as the Federal Trade Commission’s (FTC) St. Luke’s case.
Nearly five years into a wide-ranging monopsonization suit accusing milk processors of conspiring to depress and fix the prices paid to independent and cooperative milk suppliers, Judge Christina Reiss of the District of Vermont ruled that a narrowed set of the dairy farmers’ class claims will proceed to trial.

DOJ Revisits Music Royalty Consent Decrees

June 5, 2014 | Alert | By Bruce Sokler, Robert Kidwell, Helen Kim

From cassette tapes to CDs to Pandora and Spotify, innovations in the music field over the past two decades have drastically changed how people access music. Songwriters, however, are paid according to a system that has been in place since 1941 and unchanged since 2001.
The Federal Trade Commission’s (“FTC”) recent settlement with ski manufacturers Marker Volkl (International) GmbH (“Marker Volkl”) and Tecnica S.p.A. (“Tecnica”) continues to expand the scope of “inherently suspect” business practices under In re Polygram’s quick-look analysis.
In a highly anticipated decision, the federal antitrust agencies’ reinvigorated hospital merger enforcement efforts received a boost when, for the first time this century, an appellate court upheld a Federal Trade Commission (FTC) decision condemning a hospital acquisition and ordering full divestiture of the acquired assets.
Nearly five years into the lawsuit, a District Court denied defendant NCAA’s summary judgment motion, and ordered that the antitrust claims of current and former student-athletes denied compensation for the commercial use of their name, image, and likeness proceed to trial in June.

Is 4-3 the New 3-2? FTC Continues to Target Pharmaceutical Mergers

April 16, 2014 | Alert | By Bruce Sokler, Helen Kim

The Federal Trade Commission (“FTC” or “Commission”) has often stated that merger analysis requires more than a simplistic determination that high market concentration leads to anticompetitive effects.

FTC Check-Up on Health Care Trends Reveals New Competitive Wrinkles

March 27, 2014 | Advisory | By Farrah Short, Helen Kim, Timothy Slattery, Shoshana Speiser

The Federal Trade Commission (FTC or Commission) recently hosted a workshop exploring trends and innovation in the health care industry that may affect competition, marking at least 10 years since the antitrust agencies formally examined competition issues in the industry.
The Federal Trade Commission (FTC) has a well-established role in promoting competition in the health care industry through enforcement, study and advocacy. To that end, the agency actively urges the opening of health care markets to a broader range of providers.

FTC Announces Annual HSR Thresholds Revision

January 17, 2014 | Alert | By Bruce Sokler, Robert Kidwell, Farrah Short, Helen Kim

The Federal Trade Commission (FTC) announced on January 17, 2014 increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act).
The Sixth Circuit recently revived an antitrust class action alleging a conspiracy between a processed milk bottler, a raw milk supplier and a raw milk processor to restrict milk supply in violation of Section 1 of the Sherman Act. Food Lion, LLC v. Dean Foods Co., No. 12-5457 (6th Cir. Jan. 3, 2014) (In re Southeastern Milk Antitrust Litig.).
Under the antitrust merger guidelines, a maverick is a firm “that plays a disruptive role in the market to the benefit of customers.” In Washington political circles, a maverick often refers to a politician that does not hew faithfully to the party line.
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