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With two cases proceeding and one just getting started concerning Whole Foods' merger with Wild Oats, Whole Foods and the Federal Trade Commission are in for a whole lot of litigation.  First, there is the FTC's Section 7 action on the merits of the merger, which will be heard in an administrative hearing in February 2009.  Second, there is the federal court case in which the district court, on remand, will weigh the equities and determine whether injunctive relief would be in the public interest.  Third, there is Whole Foods' due process lawsuit seeking to stop the FTC from conducting the Section 7 hearing and have it heard in federal court.  There is also the recent, amended decision of the United States Court of Appeals for the District of Columbia which has implications for key antitrust issues like market definition and antitrust merger cases more generally.

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Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008).

Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing medicine in Little Rock, Arkansas.  LRCC brought an action under Sections 1 and 2 of the Sherman Act against Baptist Health, a non-profit corporation that operates five hospitals in Arkansas, including Little Rock.  The complaint alleged that Baptist Health conspired with Arkansas Blue Cross and Blue Shield to restrain trade in, and to monopolize, the market for “cardiology services for privately insured patients in a 16 county area of central Arkansas.”  The complaint alleged that Baptist Health refused to deal with LRCC, and denied it and its members access to patients within the Baptist Health Network of Hospitals.

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On October 14, 2008, a federal district court in New York denied defendant pharmaceutical companies' motion for summary judgment after finding genuine issues of fact existed as to whether 1) the sham exception to antitrust immunity under the Noerr-Penington doctrine applied to defendants' filing of a Citizen-Petition to the FDA to block the approval of generic drug manufacturers' applications; and 2) defendants' Petition in fact delayed the generic manufacturers' applications.  Louisiana Wholesale Drug Co., Inc. v. Sanofi-Aventis, 2008 WL 4580016 (S.D.N.Y. Oct 14, 2008).

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In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts dismissed a national class action antitrust complaint, borrowing from the recent United States Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), and Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007).

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Please click here to read an article that was published in the Fall 2008 special edition of "Competition," published by the State Bar Antitrust and Unfair Competition Law Section. The article commemorates the 100th anniversary of the enactment of the Cartwright Act, California's analogue to Section 1 of the federal Sherman Act, and maintains that the symmetry between the two acts is essential to promote consumer welfare and allocative efficiency.

Authored by:

Don T. Hibner, Jr.

(213) 617-4115

dhibner@sheppardmullin.com

and

Heather M. Cooper

(213) 617-5457

hcooper@sheppardmullin.com

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