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FTC Increases HSR Jurisdictional Thresholds

January 22, 2016 | Alert | By Bruce Sokler, Robert Kidwell, Farrah Short

The Federal Trade Commission (FTC) announced on January 21, 2016 increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act).
In Boyle v. Zurich American Insurance Company, SJC-11791 (Sept. 14, 2015), the Supreme Judicial Court (SJC) affirmed an award of $2,250,000 plus interest against an insurer for failing to defend its insured on a $50,000 policy and for failing to make reasonable efforts to settle the suit. 
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.

FTC Says New York’s Medicaid Redesign Program May Promote Anticompetitive Behavior

May 4, 2015 | Advisory | By Dionne Lomax, Stephen Weiner, Nili Yolin

In an April 22, 2015 letter to the New York State Department of Health (DOH), the Federal Trade Commission (FTC) cautioned that part of the State’s Medicaid reform program may sanction anticompetitive behavior.
The Federal Trade Commission (“FTC”) last week green-lighted Medtronic, Inc.’s (“Medtronic”) $42.9 billion acquisition of Covidien plc (“Covidien”) after Medtronic agreed to a settlement that requires Medtronic to divest its drug-coated balloon catheter products to Spectranetics, a Colorado-based medical technology company.

On November 20, 2014, the Federal Circuit issued its decision in Versata Software, Inc. v. Callidus Software, Inc. reversing the district court’s denial of a motion to stay pending a Covered Business Method (“CBM”) review of the patents asserted by Versata in the action.
Directors of an insolvent corporation face a host of difficult questions. Should they wind up operations or file for bankruptcy to preserve assets for creditors, or chart a riskier course that could lead the company back to profitability and possibly create value for shareholders?

Tenth Circuit Affirms Class Certification and Price Fixing Verdict Against Dow Chemical

October 6, 2014 | Advisory | By Bruce Sokler, Robert Kidwell, Farrah Short, Helen Kim

The Tenth Circuit recently affirmed both class certification and one of the largest verdicts issued in the U.S. this year, denying Dow Chemical Company’s (“Dow”) appeal in a price fixing case related to polyurethane products.
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.
In a noteworthy recent decision addressing the parameters of damages in commercial litigation, the Massachusetts Supreme Judicial Court (SJC) affirmed an order excluding expert testimony concerning future lost profits damages relating to “yet-to-be conceived future products.”
Every company with a gift card program should be aware of the recently unsealed qui tam case in Delaware titled State of Delaware ex rel. French v. Card Compliant, LLC, et al., N13C-06-289 (Superior Court of Delaware, New Castle).

A Book on Books: SDNY Issues 160-Page Opinion Declaring that Apple Violated Section 1 of the Sherman Act by Conspiring to Raise E-Book Prices

July 15, 2013 | Advisory | By Bruce Sokler, Robert Kidwell, Christi Braun, Charles Samuels, Farrah Short, Helen Kim, Shoshana Speiser

On July 10, 2013, 15 months after the Department of Justice (DOJ) filed its suit against Apple Inc. (Apple) and five major publishers for allegedly conspiring to raise e-book prices and end e-book retailers’ freedom to compete on price, Judge Denise L. Cote of the Southern District of New York found that Apple violated Section 1 of the Sherman Act.

NCAA Obtains a Vital Win on Antitrust Challenge of Athletic Aid Rules

March 26, 2013 | Advisory | By Robert Kidwell, Tyrone Thomas

In a recent federal court decision, the NCAA obtained dismissal of a claim that certain rules governing athletic grants-in-aid violated the antitrust laws. The case, Rock v. NCAA, was led by three former student-athletes and challenged a series of NCAA bylaws restricting or prohibiting the grant of athletics-based financial aid.

Supreme Court Unanimously Rules Unforeseeability Bars Immunity Defense for Allegedly Anticompetitive Hospital Merger

February 21, 2013 | Advisory | By Bruce Sokler, Robert Kidwell, Farrah Short

On February 19, 2013, the U.S. Supreme Court unanimously held that state-action immunity does not protect a state-created hospital authority from antitrust scrutiny over a proposed hospital merger where the anticompetitive effect of such merger was not a “foreseeable result” authorized by the state. FTC v. Phoebe Putney Health System, Inc., 568 U.S. ___ (2013).

California Supreme Court Gives California’s Unfair Competition Law More Coverage

February 11, 2013 | Alert | By Evan Nadel, Brandon Barker

The California Supreme Court, in Aryeh v. Canon Business Solutions, Inc., 2013 WL 263509 (January 24, 2013), resolved a split in the lower appellate courts over the applicability of common law rules of accrual to the statute of limitations in California’s Unfair Competition Law (Cal. B&P Code § 17200, “UCL”).

DOJ Approves Greater New York Hospital Association’s Proposed Gainsharing Program

January 29, 2013 | Advisory | By Bruce Sokler, Christi Braun, Robert Kidwell, Farrah Short, Shoshana Speiser

On January 16, the Department of Justice’s Antitrust Division (“DOJ”) announced that it does not presently intend to challenge the Greater New York Hospital Association’s (“GNYHA”) proposed gainsharing program.
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