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Antitrust and Competition Blog

Welcome to the Holland & Knight Antitrust and Competition Blog, featuring news, observations and analysis relating to developments in the world of federal and state competition-law enforcement, including updates on enforcement actions, agency policy statements and recent court decisions.

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Five years after the U.S. Supreme Court found in FTC v. Actavis, 570 U.S. 136 (2013), that large and unjustified payments from a brand pharmaceutical manufacturer to prevent generic entry can provide a basis for an antitrust claim (and almost 10 years after the FTC first initiated the suit), the underlying case now appears ready for trial.
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Is a federal court determining foreign law required to treat as conclusive a submission from a foreign government interpreting its law? The U.S. Supreme Court confronted this question in a case involving price-fixing claims against Chinese sellers of vitamin C. In an opinion released yesterday, the Court determined that the views of the Chinese government that its laws compelled the Chinese conspirators to fix prices and output of Vitamin C are entitled to "respectful consideration" in U.S. courts, but not the "conclusive effect" provided by the Second Circuit. See Vitamin C Antitrust Litigation (Animal Science Products, et al. v. Hebei Welcome Pharmaceutical Co. Ltd. et al.), No. 16-1220, 585 U.S. __ (2018)).
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June 15, 2018
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More than 40 years ago, the Supreme Court determined that efficient enforcement of the Sherman Act required a bright-line rule, with very limited exceptions, barring antitrust claims by "indirect purchasers"—end customers who purchase products through an intermediate source—for payment of alleged overcharges that were "passed on" through a distribution chain. See Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).
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May 18, 2018
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The House of Representatives yesterday passed a bill – the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act of 2018, H.R. 5645 – designed to align procedures and standards under which the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) review and challenge proposed mergers.
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May 10, 2018
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With the Justice Department now publicly cracking down on arrangements between employers such as so-called "no-poaching" agreements, what's an employer to do to make sure its compensation for employees with highly portable skills stays competitive? Figuring out "what's market" is a crucial aspect of retaining talent, but the information is difficult to get.
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April 13, 2018
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The DOJ's Antitrust Division sent a powerful message to the business community yesterday, when it sued railroad equipment suppliers Knorr-Bremse AG and Westinghouse Air Brake Technologies Corporation (Wabtec) for entering into agreements "not to solicit, recruit or hire without prior approval, or otherwise compete for employees." The DOJ alleged that these so-called "naked no-poaching agreements" "denied American rail industry workers access to better job opportunities, restricted their mobility and deprived them of competitively significant information they could have used to negotiate for better terms of employment." As is often the case with civil antitrust investigations, the DOJ had negotiated a settlement with the two companies before going public and filed that settlement as a consent decree simultaneously with filing its complaint in court.
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As post-Actavis antitrust litigation over so-called “reverse payment” patent settlements proceeds, courts continue to provide further illumination about what evidence a private plaintiff would need to offer to survive summary judgment on the question of whether the settlement agreement was a material cause of its alleged injuries.
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January 31, 2018
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The Federal Trade Commission (FTC) has announced this year's revisions to the thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), which will be applicable to transactions closing on or after Feb. 28, 2018. The FTC is required to revise the HSR thresholds annually based on changes in the gross national product. In addition, adjusted civil penalties for noncompliance with HSR requirements took effect on Jan. 22, 2018, and are now up to $41,484 per day for each day of violation.
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January 31, 2018
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Shortly after the arrival last fall of Makan Delrahim as head of the DOJ's Antitrust Division, the DOJ quietly introduced a subtle but significant change to the consent decrees it uses to settle antitrust disputes. This change will make it easier for the DOJ to enforce the terms of its consent decrees going forward – and harder for antitrust defendants to evade any obligations imposed upon them under their settlements.
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January 22, 2018
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On Friday, January 12, 2018, the United States Supreme Court agreed to hear the appeal of two Vitamin C purchasers in what has become known as In re: Vitamin C Antitrust Litigation.
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January 17, 2018
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On December 15, 2017, United States Magistrate Judge Alice Senechal of the District of North Dakota entered an order preliminarily enjoining the merger between two large physicians practices in the Bismarck/Mandan market, Sanford Bismarck and Mid-Dakota Clinic, PC, on the grounds that the proposed merger would substantially lessen competition in four physician service lines: General Surgery, OB/GYN, Adult Primary Care and Pediatric Services.
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December 21, 2017
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On November 14, 2017, following a rare invitation from the U.S. Supreme Court earlier this year, newly confirmed Solicitor General Noel Francisco submitted an amicus curiae brief on behalf of the United States in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., et.al, Case No. 16-1220, otherwise known as the Vitamin C Antitrust Litigation.
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November 17, 2017
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We pointed out in a recent article that, based on recent decisions by the Courts of Appeals for the First and Third Circuits, private antitrust plaintiffs seeking damages from so-called “reverse-payment” settlement agreements faced the challenge of establishing that the generic manufacturer would have prevailed in patent infringement litigation against the brand manufacturer. Although this requirement undoubtedly poses a significant challenge, plaintiffs seeking damages for delay in release of lidocaine transdermal patches generic to the brand product Lidoderm have already shown, at the summary judgment stage, that the hurdle may not be insurmountable.
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November 7, 2017
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Attacking the vigor and effectiveness of antitrust enforcement has become increasingly popular political subject. Just last week, Senator Cory Booker released a letter to the FTC and DOJ urging them to consider the interests of workers as they evaluate the potential anticompetitive effects of a merger.
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November 6, 2017
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As the trend of acquisitions of physician practices and mergers of hospitals continues, so does antitrust scrutiny of these deals. There was activity this week in three different proposed transactions that caught the attention of antitrust authorities.
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November 2, 2017
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In the most closely watched rail industry litigation in the country, the U.S. District Court for the District of Columbia has denied class certification in the railroads’ fuel surcharge antitrust litigation.
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October 13, 2017
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A recent decision by Judge Richard Sullivan of the United States District Court for the Southern District of New York concerned the unusual question of whether anticompetitive conduct occurring entirely outside of the United States can support claims for damages for violations of U.S. antitrust laws.
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October 9, 2017
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The Antitrust Division's Deputy Assistant Attorney General for International Affairs, Roger Alford, delivered a speech at the University of São Paolo discussing the corrosive effect that corruption can have on societies and how the fight against anticompetitive practices often intersects with efforts to combat corruption.
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Are well-funded, industry-disrupting market entrants in the sharing economy engaging in unlawful predatory pricing? Some have raised concerns that popular ride sharing services and other similar startups have created a dangerous probability of a monopoly by implementing business models that are designed to gain market-share by initially operating at a loss.
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On October 3, the Federal Trade Commission Bureau of Competition and the Antitrust Division of the Department of Justice released the Hart-Scott-Rodino Annual Report for the fiscal year ended September 30, 2016.
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October 4, 2017
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