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02 Feb 2010 16:41
thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product. For the first time, the thresholds have been reduced.The HSR Act imposes premerger notification and waiting period obligations on transactions over a certain size, where the parties are over a certain size, before those transactions may be completed.
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26 Jan 2010 00:23
FTC Chair Calls for Ban to Pay-For-Delay Settlements
Posted on January 25, 2010 byOn January 13, 2010, the Federal Trade Commission released a study critical of “pay-for-delay” patent litigation settlements by which brand-name drug companies pay generic competitors to keep generic drugs off the market. The same day, the Chairman of the FTC, Jon Leibowitz, and Representatives Chris Van Hollen (D-Md.), Bobby Rush (D-Ill.) and Mary Jo Kilroy (D-Ohio) held a news conference during which they urged Congress to include a provisional banning such settlements in the final health care reform bill.
Lower Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced
Posted on January 25, 2010 by1. Lower Thresholds For HSR Filings On January 19, 2010, the Federal Trade Commission announced revised, lower thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product. For the first time, the thresholds have been reduced. They will be effective thirty days after publication in the Federal Register. Publication is expected to occur this week. Thus the new thresholds will most likely become effective late February 2010. Acquisitions that have not closed by the effective date will be subject to the new thresholds. Filing persons must wait a designated period of time, usually 30 days, before completing their transactions. The HSR Act imposes premerger notification and waiting period obligations on transactions over a certain size, where the parties are over a certain size, before those transactions may be completed. Each "person" who is a party to an HSR-reportable deal must file an HSR notification with the Department of Justice Antitrust Division and the Federal Trade Commission.
Spirit of Twombly Exorcises Specter of Revived Aguilar Claims
Posted on January 25, 2010 byThe Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. 06-056059 (9th Cir. Dec. 2, 2009)."
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07 Jan 2010 14:43
Copyright © 2010, Sheppard Mullin Richter & Hampton LLP. -
22 Dec 2009 18:38
Second Circuit Affirms Dismissal Of Antitrust Class Action Due To Implied Preclusion By The Securities Laws
Posted on December 22, 2009 byIn Electronic Trading Group, LLC v. Banc of America Securities LLC (In re Short Sale Antitrust Litigation), 2009 WL 4350035 (2d Cir. Dec. 3, 2009), the United States Court of Appeals for the Second Circuit affirmed the dismissal of a putative antitrust class action against certain financial institutions that serve as “prime brokers” in connection with short sale transactions, on the ground that the federal securities laws precluded application of antitrust law to the matters at hand. This was the first time the Second Circuit applied the considerations for the implied preclusion of antitrust laws by the securities laws outlined by the United States Supreme Court in Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007).
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18 Dec 2009 15:58
European Commission Objects to Oracle-Sun Deal
On November 9, 2009, the European Commission ("EC") issued a Statement of Objections ("SO") regarding Oracle Corporation's ("Oracle") proposed acquisition of Sun Microsystems, Inc., ("Sun"). The EC opened an in-depth investigation of the deal in September, shortly after the U.S. Department of Justice's Antitrust Division ("DOJ") cleared the proposed transaction. The EC is concerned that the merger will reduce competition in the market for databases.
Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with collusion.
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17 Dec 2009 00:32
EC Objects to Oracle-Sun Deal
Posted on December 16, 2009 byOn November 9, 2009, the European Commission ("EC") issued a Statement of Objections ("SO") regarding Oracle Corporation's ("Oracle") proposed acquisition of Sun Microsystems, Inc., ("Sun"). The EC opened an in-depth investigation of the deal in September, shortly after the US Department of Justice's Antitrust Division ("DOJ") cleared the proposed transaction. The EC is concerned that the merger will reduce competition in the market for databases. See.
Schering-Plough's $41 Billion Acquisition of Merck Clears Antitrust Hurdles With Consent Order
Posted on December 16, 2009 byThe Federal Trade Commission announced in October 2009 that it will allow Schering-Plough Corporation's proposed $41.1 billion acquisition of Merck & Co., Inc. to proceed, subject to a consent order requiring the parties to each divest certain interests and assets in businesses where the FTC was concerned the transaction would have substantially reduced competition.
U.S. Court Grounds Europe-Japan Air Travel Price-Fixing Case
Posted on December 16, 2009 byOn October 16, 2009, Judge Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania ruled that the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a ("FTAIA") mandated dismissal of a putative class action brought against foreign airlines Lufthansa, Air France, KLM, and Alitalia under the Sherman Act for allegedly conspiring to fix the price of Europe-to-Japan and Japan-to-Europe passenger air transportation. McLafferty v. Deutsche Lufthansa A.G., CV 08-1706 (E.D. Pa., October 16, 2009).
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market
Posted on December 16, 2009 byRather than being "plus factors", allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with collusion. In re California Title Insurance Antitrust Litigation, 2009 U.S. Dist. LEXIS 103407 (N.D. Cal., November 6, 2009). Plaintiffs brought an action against major title insurers and their subsidiaries for engaging in conduct that allegedly violated Section 1 of the Sherman Act, Section 16720 of the California Business and Professions Code, and Section 17200 of the California Unfair Competition Provision in the Business and Professions Code.
- EC Objects to Oracle-Sun Deal
- Schering-Plough's $41 Billion Acquisition of Merck Clears Antitrust Hurdles With Consent Order
- U.S. Court Grounds Europe-Japan Air Travel Price-Fixing Case
- Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market
- Supreme Court's <em>Linkline</em> and <em>Trinko</em> Decisions Result in Tenth Circuit Dismissal of Section 2 Monopolization Case
- Court Dismisses Claims Against Shippers Under <i>Twombly</i> And The Filed Rate Doctrine
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13 Nov 2009 22:12
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10 Nov 2009 23:04
"Per Se" or Not "Per Se" - An Historical "Quick Look" at Minimum RPM Under California Law
Posted on November 10, 2009 byOn June 28, 2007, in Leegin Creative Leather Products, Inc. v. PSKS, Inc.[1] the United States Supreme Court decided in a 5-4 vote to overrule the long-lived rule in Dr. Miles Medical Co. v. John D. Park & Sons Co.[2]The decision in Dr. Miles, issued in 1911, had a long but checkered life. In Dr. Miles, the Court affirmed the sustaining of a demurrer to a bill in equity, and held that it was illegal under Section 1 of the Sherman Act for a manufacturer and its distributors to agree on a minimum price that the distributor must charge for the manufacturer's goods, upon resale.
Supreme Court's Linkline and Trinko Decisions Result in Tenth Circuit Dismissal of Section 2 Monopolization Case
Posted on November 10, 2009 byThe Tenth Circuit's recent dismissal of Section 2 monopolization and attempted monopolization claims in Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, -- F.3d ---, 2009 WL 3085882 (10th Cir. Sep. 29, 2009), relied extensively on the Supreme Court's Linkline and Trinko decisions to hold that: (1) a hospital's refusal to allow a physician access to its nephrology facilities does not constitute anticompetitive conduct under Section 2 of the Sherman Act; and (2) the refusal does not constitute an injury of the type the antitrust laws were intended to prevent.
Technology Sector Comes Under Increased Antitrust Scrutiny
Posted on November 10, 2009 byEarlier this year, in her first speech as Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, Christine Varney referred to Americans' growing reliance on high-tech solutions in the home and workplace, and stated that her Department “planned to devote attention to understanding the unique competition-related issues posed by these markets”. See Christine Varney, Vigorous Antitrust Enforcement in This Challenging Era, Speech Before the Center for American Progress (May 11, 2009), available here. Less than six months later, DOJ has reportedly initiated an antitrust investigation into one of the nation's largest technology companies, IBM, and filed a brief detailing its concerns at a proposed book settlement that would allow the creation of a vast digital library by Google. During the same time period, the Federal Trade Commission (FTC) has been investigating the boardroom overlap between Google and Apple with respect to a breach of the prohibition on “interlocking directorates" and the Federal Communication Commission ( FCC) has been investigating the state of competition in the wireless market. Together, these actions may evidence the beginning of a wider trend of antitrust scrutiny of the technology sector.
Sixth Circuit Affirms Dismissal of Travel Agent Commission Antitrust Claims
Posted on November 10, 2009 byOn October 2, 2009, the United States Court of Appeals for the Sixth Circuit ruled in favor of defendant airline carriers[1] accused of conspiring to reduce, cap and ultimately eliminate the base commissions paid to travel agents selling defendants’ airline services in In re Travel Agent Commission Antitrust Litigation. The Sixth Circuit’s decision is the latest to embrace the pleading standards of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) by requiring plaintiffs to plead non-conclusory factual allegations that raise a “plausible suggestion of conspiracy.”
Debate on Resale Price Maintenance Heats Up
Posted on November 10, 2009 by- DOJ Antitrust Division Head Christine Varney Offers Guidance on Leegin and Proposes "Structured Rule of Reason Test" For Evaluating RPM Under State Laws
When the Supreme Court modified the prohibition against resale price maintenance agreements ("RPM") more than two years ago in Leegin Creative Leather Products v. PSKS, Inc., it was not immediately clear how state enforcers and state courts would apply state laws to RPM. 127 S. Ct. 2705 (2007). Thirty-seven State Attorneys General (AGs) had asked the Court in a joint amicus brief to uphold the per se rule which makes all RPM illegal. Since Leegin, some AGs have taken the position that RPM remains per se illegal under some state laws and other states have passed or may pass "Leegin repealer" bills.
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- "Per Se" or Not "Per Se" - An Historical "Quick Look" at Minimum RPM Under California Law
- Supreme Court's Linkline and Trinko Decisions Result in Tenth Circuit Dismissal of Section 2 Monopolization Case
- Technology Sector Comes Under Increased Antitrust Scrutiny
- Sixth Circuit Affirms Dismissal of Travel Agent Commission Antitrust Claims
- Debate on Resale Price Maintenance Heats Up
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24 Oct 2009 12:40
A Window into Washington: Report on Hearings for S. 1681 and H.R. 3596, Proposed Legislation to End Health Insurers' Antitrust Exemption
Posted on October 23, 2009 byOverview
- Congress recently conducted hearings on proposed legislation that would repeal the insurance exemption from the federal antitrust laws, the McCarran-Ferguson Act of 1945, as it relates to the health insurance industry.
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Witnesses at the hearings articulated different perspectives on the potential repeal. At one end of the spectrum, there was a call to end the exemption and increase federal oversight of the health insurance industry for the benefit of both competition and consumers. In contrast, at least one witness suggested that repeal would at best maintain status quo in the market or, worse, deter activities that enhance industry efficiency.
- On October 21, the House Judiciary Committee voted 20-9 to approve legislation aimed at repealing the antitrust exemption for health insurers. The Committee endorsed a middle-of-the-road approach by including safe harbors that permit joint action for data pooling and actuarial calculations.
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20 Oct 2009 05:45
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