A court in the Southern District of New York recently dismissed a monopolization claim brought by Louisiana Wholesale Drug Co. alleging that Shire violated Sherman Act §2 when it allegedly breached license and supply agreements with two generic firms related to its drug, Adderall XR. The license and supply agreements were the result of the… Continue Reading
Category Archives: Antitrust, Competition & Economic Regulation
Subscribe to Antitrust, Competition & Economic Regulation RSS FeedCOMESA – New Pan-African Merger Control Regime
On 14 January 2013, the Competition Commission for the Common Market for Eastern and Southern Africa (“COMESA”) became operational. This creates a new supranational merger control regime in Africa which companies will now have to navigate. The new regime contains a number of potentially significant issues for dealmakers, including broad jurisdictional thresholds with extensive reach… Continue Reading
Supreme Court tightens the scope of antitrust immunity in government-owned hospital mergers
In a unanimous and favorable decision for the Federal Trade Commission (FTC), the Supreme Court found that the state action immunity doctrine does not shield Phoebe Putney Health System’s acquisition of Palmyra Park Hospital from antitrust scrutiny, sending the parties back to FTC administrative litigation to battle over the legality of the hospital merger. The… Continue Reading
Review of issues for 2013
The following is a summary of some of the key issues Congress and the Administration will be debating in 2013. Please contact us with any questions. We are happy to provide further analysis as well as insight into other areas of interest. Agriculture: Tom Vilsack is expected to stay on as Secretary of Agriculture…. Continue Reading
FTC Issues Annual Overview of Pharmaceutical Patent Settlements
According to a report issued by the FTC yesterday, a record number of settlements between brand name and generic drug manufacturers reported to the Commission last year potentially constituted so-called “pay-for-delay” agreements. Defined by the FTC as a settlement involving both compensation to the generic as well as limitations on the generic’s ability to market… Continue Reading
Record antitrust fines in China
The National Development and Reform Commission (“NDRC“) has started 2013 with a bang. On 4 January 2013, it announced that it had imposed sanctions of close to USD 56 million on six liquid crystal display (“LCD“) makers from Korea and Taiwan, accusing the companies of illegal price-fixing. These sanctions set an absolute record for antitrust… Continue Reading
EU ruling on when dealings with patent and other regulatory authorities can infringe competition rules
On 6 December 2012, the Court of Justice of the European Union (“CJEU”) handed down the final chapter in the long-running AstraZeneca case (Case C-457/10P, AstraZeneca v European Commission). Whilst the CJEU refrained from establishing a detailed test for when conduct before a patent office can constitute an abuse of a dominant position, it confirmed that misuse of regulatory procedures… Continue Reading
FTC Wades Into Private “Product Hopping” Suit with Proposed Amicus Brief
In an important reminder of the agency’s keen focus on generic competition in pharmaceutical markets, the FTC recently sought leave to file an amicus brief in a suit brought by Mylan Pharmaceuticals alleging that Warner Chilcott violated §§1 and 2 of the Sherman Act by instituting a series of product “switches” to prevent or delay… Continue Reading
FTC Accepts New Entrant as a Remedy to Consolidation among Labware Suppliers
The FTC recently approved Corning’s proposed $730 million acquisition of Discovery Labware, a division of Becton, Dickinson, subject to a Consent Agreement. The agreement requires Corning to supply Sigma-Aldrich, a competitor in adjacent markets, with the necessary products and technical assistance to immediately compete in the supply of certain specialty lab products (tissue culture treated… Continue Reading
Intellectual property policies of standard-setting organisations – Push for change
Two speeches this month by top DOJ officials (Fiona Scott-Morton and Renata Hesse) have identified specific policy choices that standard-setting organizations (SSOs) could implement which would promote competition. They set out four main ways in which SSOs could clarify their intellectual property policies: Licensing commitments made to the standards body should bind both the… Continue Reading
FTC Gets Aggressive with its Subpoena Powers against Pharma Companies
The FTC recently took action to enforce a subpoena against a pharmaceutical company related to its investigation into the firm’s settlement of patent litigation. Pharma companies are likely familiar with the FTC’s intent to stop patent settlements that it believes involve payments from the brand to the generic in exchange for delaying entry of the… Continue Reading
DOJ and FTC Consider NPE Antitrust Issues
Over the last decade, the patent landscape has been dramatically altered by the rise of entities whose business model is to acquire significant patent portfolios and aggressively pursue license fees from businesses selling products that may infringe on some of those patents. Such companies are known as “non-practicing entities” (NPEs) or “patent assertion entities” (or,… Continue Reading
FTC Obtains Multi-Million Dollar Settlement Against Marketer of Fitness Gear
The Federal Trade Commission (FTC) has obtained a $25 million settlement against the marketers of the Ab Circle Pro, an abdominal exercise device, for alleged deceptive advertising. According to the Commission, the defendants, including Fitness Brands, Inc. and Fitness Brands International, Inc., falsely promised that a three-minute workout with the Ab Circle Pro was the… Continue Reading
DOJ and EU Working Together on IP Issues
DOJ antitrust chief Joe Wayland revealed in an interview (subscription required) this week that the US and EU are working together to coordinate their enforcement approach regarding the acquisition and use of intellectual property — particularly standard essential patents (SEPs). The comments come as the European Commission is engaged in at least two significant investigations… Continue Reading
FTC Proposed Rule on Reporting of Pharmaceutical Patent Transfers
The FTC has proposed a change to the Hart-Scott-Rodino filing requirements relating to acquisitions of exclusive patent rights in the pharmaceutical industry. The proposed rule would extend the circumstances under which the transfer of exclusive patent rights for pharmaceuticals would be subject to HSR reporting requirements. Under present rules, the transfer of exclusive rights to… Continue Reading
FTC Issues Advisory Opinion Approving Drug Shortage Initiative
The FTC recently issued an advisory letter concluding that an initiative proposed by the Generic Pharmaceutical Association (GPhA) to address the growing problem of drug shortages in the U.S. is unlikely to harm competition. Under the GPhA’s proposed Accelerated Recovery Initiative (ARI), generic manufacturers of drugs in short supply will compile competitively sensitive information regarding… Continue Reading
European Commission to enforce closer monitoring of antitrust commitments
EU Competition Commissioner, Joaquín Almunia, signalled at a press conference in July that he intends to tighten up the monitoring of commitments agreed with the European Commission to close EU antitrust investigations. This is particularly true for complex cases that require close scrutiny, and also for cases in the tech industry. The European Commission’s investigations… Continue Reading
U.S. Supreme Court to Review “State Action” Doctrine in FTC Merger Challenge
Despite losses at the district and appellate levels, the Federal Trade Commission’s fight to enjoin the merger of two hospitals in Georgia is not over. The Supreme Court announced on June 25, 2012 that it would hear an appeal by the FTC to consider whether an alleged merger to monopoly of two hospitals, Phoebe Putney… Continue Reading
EU State aid rules: Tax measures can and must be assessed under the market investor principle
On June 5, 2012, the EU Court of Justice ruled that tax measures may avoid the qualification of State aid if the State acts as a private investor, i.e. if the State’s decision is based on economic evaluations comparable to those which, in the circumstances, a rational private investor in a situation as close as… Continue Reading
Court Refuses to Halt Transaction Integration Following FTC Approval of Deal
The FTC’s review of the proposed merger between Express Scripts and Medco was closely watched in many circles, including by investors, Congress, competitors and customers. After almost a year of review, the Federal Trade Commission announced early on the morning of April 2, 2012 that it had closed its investigation of the proposed merger between… Continue Reading
FERC Gets a New View of the Wholesale Electric Markets
FERC issued a final rule approving new ongoing data reporting requirements for Regional Transmission Organizations and Independent System Operators. The new rule will require the six RTO/ISOs – PJM, NYISO, ISO-New England, Midwest ISO, Southwest Power Pool, and the California ISO – to begin supplying FERC with a treasure trove of new, non-public transactional data… Continue Reading
FTC Requires Two “Gold-Standard” Studies in Sketchers Consent Decree
For the second time in eight months, the Federal Trade Commission (FTC) has obtained a multi-million dollar settlement as the price paid for alleged deceptive advertising of footwear promoted to help customers lose weight and strengthen muscles. The FTC announced its $40 million settlement with Sketchers earlier this week. According to the FTC, Sketchers incorrectly… Continue Reading
Be careful with rebate schemes – the recent EU judgment in Tomra
The Court of Justice of the European Union has just issued an important judgment on rebate schemes in the EU. It rejected an appeal by Tomra against a judgment of the General Court that upheld the European Commission’s decision that it had abused a dominant position through the use of contracts that included exclusivity provisions,… Continue Reading
IT Obstruction of Dawn Raids
For the first time, the European Commission has fined a company for the specific violation of obstructing IT searches during a dawn raid (on-the-spot inspection) which was carried out as part of an antitrust investigation. On 28 March 2012, the European Commission fined Czech energy companies Energetický a průmyslový and EP Investment Advisors EUR2.5 million… Continue Reading