Eleventh Circuit Affirms FTC Finding that Rebate Program Served to Unlawfully Maintain Monopoly Power

The Eleventh Circuit recently affirmed a Federal Trade Commission finding that a manufacturer’s rebate program requiring exclusivity from its distributors was an unlawful maintenance of monopoly power under Section 5 of the FTC Act.  McWane, Inc. v. Fed. Trade Comm., No. 14-11363 (11th Cir. April 15, 2015).  The Court found that the rebate program’s practical effect was to make it economically infeasible for distributors to switch from defendant McWane to its only competitor, Star Pipe Products (“Star”).  Unable to attract sales, Star was therefore incapable of generating enough revenue to become an efficient and effective competitor to challenge McWane’s near 100% monopoly over domestic water-pipe fittings. Continue Reading

China Ripe For Enforcing AML Based On Concerted Action

So far in China there have not been any published decisions regarding price-fixing or other anti-competitive agreements based on concerted action by competitors.  There is also no Chinese legal precedent for including potential competitors in the analysis of antitrust law compliance.  But China’s antitrust enforcers are very much aware of how the U.S. and EC enforce antitrust laws.  We may thus begin to see more cases where the Chinese enforcers enforce the Anti-Monopoly Law’s (“AML”) prohibition of anti-competitive agreements among competitors based on concerted action using the same approach as the EC, whose decision to fine banana suppliers for fixing the price of green and ripe bananas was recently upheld by the European Court of Justice (“Court”) in Dole Food and Dole Germany v. Commission, case number C‑286/13 P.  While this is not the first time the EC has fined companies based on concerted action, it reinforces some of the broad sweeping concepts that make it easy to punish a company in an administrative process, such as in China, where the enforcer, investigator and judge are essentially the same body. This is particularly of concern in China given the discretionary power of the Chinese enforcement authorities. Continue Reading

When Illinois Brick Goes Abroad

There are few aspects of U.S. antitrust law as seemingly well settled as Illinois Brick’s “indirect purchaser rule.” The rule itself — indirect purchasers may not recover damages under federal antitrust laws — is about as straightforward as they come; there are only a few exceptions, and courts have adhered to the U.S. Supreme Court’s instruction that these exceptions not be freely expanded or multiplied. If antitrust has any load-bearing doctrinal pillars, then Illinois Brick is surely among them.

But here is a not-entirely-settled question about Illinois Brick: To what extent does it apply to claims based on conduct occurring in foreign commerce? Part of the answer is easy: As an interpretation of the Clayton Act, Illinois Brick undisputedly applies to bar federal indirect purchaser claims based on foreign conduct. But does it also bar such claims when brought under state laws?

Click here to read the original as published by Law360.

 

Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged

While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage.  In response to the Supreme Court’s decision in FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968), the Federal Trade Commission issued its Guides for Advertising Allowances and Other Merchandising Payments and Services, codified at 16 CFR, Part 240 (1969).  The “Fred Meyer Guides”, as they are generally referred to, were revised in 1990, and most recently in November 2014.  In the wake of efforts through the years to better equate the aims and goals of Robinson-Patman enforcement with those of the other antitrust laws, there has been a vigorous debate over modifications.  These included proffered amendments suggested by the American Bar Association Section of Antitrust Law, the Antitrust Law Institute, and others.

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In Highly-Anticipated Decision, Ninth Circuit Affirms That Hospital-Physician Group Merger in St. Luke’s Violated Section 7 And Casts Serious Doubt on Viability of Efficiencies Defense

On February 10, 2015, the Ninth Circuit issued its highly-anticipated decision at the intersection of health care and antitrust, affirming the lower court’s finding that a hospital-physician group merger completed nearly three years ago violated Section 7 of the Clayton Act.  St. Alphonsus Med. Ctr. – Nampa Inc. v. St. Luke’s Health Sys., Ltd., No. 14-35173 (9th Cir. Feb. 10, 2015) (“St. Luke’s”).  The significance of St. Luke’s cannot be overstated.  It is the first challenge of a hospital-physician group merger by the Federal Trade Commission that proceeded to trial.  And, the Ninth Circuit’s opinion includes significant judicial guidance for future health care mergers, casting serious doubt on the viability of a “post-merger efficiencies defense” to a prima facie case of a Section 7 violation and declaring that proof of “extraordinary efficiencies” that are “merger-specific” is required to successfully offset anticompetitive concerns in highly concentrated markets.

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Antitrust Enforcement in China: Understanding the Framework of the Anti-Monopoly Law

China’s adoption of the Anti-Monopoly Law (“AML”) is a landmark in the evolution of China’s economic transformation. The AML was a carefully thought-out, negotiated, strategic development dictated by the central government, and the culmination of a process that started almost twenty years ago. China has moved from a centrally planned command economy to one that is largely a free market economy, despite the existence of state-owned enterprises as major players.  The AML is the ultimate recognition on the part of the Chinese government that free and fair competition in the market place is in the essential interest of the Chinese people.

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Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

1. Higher Thresholds For HSR Filings

On January 15, 2015, the Federal Trade Commission announced revised, higher 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 and will be effective thirty days after publication in the Federal Register. Publication is expected within a week, so the new thresholds will most likely become effective in late February 2015. Acquisitions that have not closed by the effective date will be subject to the new thresholds.

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CMS’ Proposed Regulations Include Significant Antitrust Implications For Entities Interested In Forming ACOs

The Centers for Medicare & Medicaid Services (CMS) released proposed regulations to clarify and build on current regulatory requirements for Accountable Care Organizations (ACOs) that participate in the Medicare Shared Savings Program (MSSP).  Among the changes is one addressing when an ACO must be formed as an independent legal entity, separate from any of its multiple participants.  According to CMS, this proposed change is designed to clarify existing regulations and to ensure that ACO decision-making is governed by individuals with fiduciary duties to the ACO alone.

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Allegations That Designer Wedding Dress Line Constitutes A Relevant Product Market Found Implausible

Allegations that a highly specialized designer line of wedding dresses lacks reasonable substitutes fail to support allegations of Sherman Act violations for price fixing and group boycott claims.  House of Brides etc., v. Alfred Angelo, Inc., Case No. 1:11-cv-07834 (N.D. Ill., December 4, 2014).

Alfred Angelo, Inc. (“Angelo”) is a designer, manufacturer and retailer of wedding products.  House of Brides was an authorized Angelo retail dealer for over 40 years.  While strictly a designer and manufacturer for many years, Angelo eventually entered into the operation of its own retail stores. Thus, it was engaged in “dual distribution,” in competition with its dealers such as House of Brides.

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