Antitrust Law Blog : Antitrust Lawyer & Attorney : Sheppard Mullin Law Firm : Antitrust Law Blog

On May 25, 2010, the Chinese State Administration of Industry and Commerce (“SAIC”) released new draft Rules On Monopoly Agreements (the “Rules”) for public comment. SAIC also released draft Rules Prohibiting Abuse Of Dominant Market Position and draft Rules On Administrative Monopoly for public comment on the same day.
 

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The U.S. District Court for the Eastern District of California recently held that a hospital and a physicians practice association, and a hospital and the physicians that provide services to it under contract, may be sufficiently distinct separate economic actors capable of conspiring with each other under Section 1 of the Sherman Act. Perinatal Medical Group, Inc. et al. v. Children’s Hospital Central California et al, Case No. CV F 09-1273 LIO GSA (April 15, 2010). There are few Ninth Circuit cases addressing these issues and other circuits have come to different conclusions. More particularly, the Eastern District of California denied a motion to dismiss a complaint that alleged that a hospital and two independent physician practice associations conspired to restrain trade in violation of Section 1 of the Sherman Act by prohibiting neonatologists who did not agree to practice exclusively at the hospital or refer cases to doctors practicing exclusively neonatology at the hospital, from using the hospital's neonatal intensive care unit.
 

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The United Kingdom's answer to the Foreign Corrupt Practices Act (FCPA) has arrived. The UK Bribery Act 2010, which received Royal Assent on April 8, 2010, is both stricter and broader than the FCPA. The U.K. Ministry of Justice announced on July 23, 2010, that the implementation of the Act will be delayed until April 2011, which gives companies much-needed time to prepare for the changes it will bring.
 

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Three U.S. senators have introduced a bill that would make permanent provisions of the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 (ACPERA) granting reduced civil liability to companies who successfully apply for criminal amnesty under the U.S. Department of Justice's antitrust leniency program and subsequently provide "satisfactory cooperation" to civil plaintiffs.
 

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As previously reported on this blog, in January 2009, the Federal Trade Commission launched its latest challenge to the legality of reverse payment settlements in the pharmaceutical industry, this time directed at two settlements involving the brand-name drug AndroGel. A full year later, on February 22, 2010, the United States District Court for the Northern District of Georgia dismissed the FTC's complaint for failure to state a claim. In re: AndroGel Antitrust Litig. (No. II), 1:09-md-02084-TWT, slip op. (N.D. Ga. Feb. 22, 2010). This is the latest in a series of setbacks for the FTC in its long-standing bid to persuade courts that reverse payment settlements are anticompetitive and pose significant harm to consumer welfare.
 

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On March 31, 2010, a Federal District Court barred two direct purchasers of hydrogen peroxide and derivative products (“Plaintiffs”) from pursuing antitrust damages arising from their foreign product purchases, because Plaintiffs’ allegations failed to satisfy the two-step proximate cause requirement of the Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”). See In re Hydrogen Peroxide Antitrust Litigation, No. 2:05-cv-00666-SD (E.D. Pa. March 31, 2010) (“Hydrogen Peroxide”).
 

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In a Business Review Letter dated April 26, 2010, the U.S. Department of Justice, Antitrust Division (hereinafter, “the Division”) stated that it would not challenge a data sharing program proposed by three health care associations located in California. From the Division’s vantage point, the program posed little risk of facilitating anticompetitive conduct; rather, the most likely effect of the program would be to increase transparency about the relative costs and utilization rates of hospitals that participated in the survey.
 

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In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB Antitrust Litigation in the Eastern District of Pennsylvania. Bailey Lumber & Supply Co. v. Georgia-Pacific Corp. Cause No. 1:08CV1394 LG-JMR (S.D. Miss, Feb. 25, 2010 and March 19, 2010).
 

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On March 4, 2010, Judge Jeremy Fogel of the United States District Court for the Northern District of California granted summary judgment in favor of eBay in a putative antitrust class action lawsuit brought by online auction sellers in 2007. See In re eBay Seller Antitrust Litigation, No. 07-1882 N.D. Cal., No. C 07-01882 JF (RS) (2008), Order Granting Defendant’s Motion For Summary Judgment And Denying As Moot Plaintiffs’ Motion For Class Certification (Dkt. # 577), available at 2010 WL 760433 (“eBay”). As explained below, the court held that plaintiffs’ allegations fail because plaintiff and its expert failed to proffer any evidence that eBay’s alleged anticompetitive acts caused plaintiffs any injury compensable under the antitrust laws.
 

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