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

On January 6, 2009, the Federal Trade Commission announced revised thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.  They will be effective Thursday, February 12, 2009.  Acquisitions that have not closed by the effective date will be subject to the new thresholds.  Filing persons must wait a designated period of time, usually 30 days, before completing their transactions.  The HSR Act imposes premerger notification and waiting period obligations on transactions over a certain size, where the parties are over a certain size, before those transactions may be completed.  Each "person" who is a party to an HSR-reportable deal must file an HSR notification with the Department of Justice Antitrust Division and the Federal Trade Commission.

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The Ninth Circuit recently affirmed in part and reversed in part the entry of summary judgment for defendant Abbott Laboratories, Inc. ("Abbott") on claims brought under Section 2 of the Sherman Act.  The Ninth Circuit found that genuine issues of material fact existed as to whether Abbot committed Walker Process fraud, one possible "sham" exception to Noerr-Pennington immunity.  The Court, however, affirmed the absence of evidence of "sham" litigation with respect to the multiple patent infringement suits that Abbott filed against its would-be competitors.  The Court also affirmed judgment for Abbott and its co-defendant on the Section 1 restraint-of-trade claim.  Kaiser Foundation Health Plan, Inc. v. Abbott Laboratories, Inc., __ F.3d __, 2009 WL 69269 (9th Cir. Jan. 13, 2009) ("Kaiser").
 

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The U.S. District Court for the District of Massachusetts denied a Rule 12(b)(6) motion brought by defendant private equity firms (“PE Firms”) challenging a putative class action complaint brought by a trust, a public retirement trust fund and five individuals.  The plaintiffs asserted that the PE Firms entered into a bid rigging and bid allocation agreement when purchasing the “Target Companies.”  Nine specific transactions, involving billions of dollars, were alleged.  The PE Firms assertedly carried out their conspiracy by submitting false bids; agreeing not to submit bids; “granting management certain incentives;” and including “losing” bidders in the final transactions.  Plaintiffs, as shareholders in the Target Companies, claimed that defendants had deprived plaintiffs of the fair value of their shares.
 

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On December 30, 2008 the Third Circuit Court of Appeals clarified the standard that district courts in that circuit must apply before permitting a class action to proceed.  See In re Hydrogen Peroxide Antitrust Litigation, No. 07-1680, 2008 U.S. App. LEXIS 26871 (3d Cir. Dec. 30, 2008) ("Hydrogen Peroxide").  And, in what is obviously a welcome development for the class action defense bar, the Court of Appeals clarified that the "rigorous analysis" which district courts must apply requires an assessment of all relevant facts and arguments.  In doing so, the Court of Appeals rejected the notion that only a "threshold showing" is required or that a relaxed class certification analysis applies in antitrust cases.   Hydrogen Peroxide, 2008 U.S. App. LEXIS 26871 at *48-49.
 

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On August 20, 2008 the US District Court in the Eastern District of Tennessee issued an opinion further defining the legal requirements necessary to plead a vertical resale price maintenance cause of action in Spahr v. Leegin Creative Leather Products, Inc., 2008 WL 3914461 (E.D. Tenn. 2008) ("Spahr").  Spahr comes in the aftermath of the watershed antitrust cases Bell Atlantic Corp v. Twombly, 127 S.Ct. 1955 (2007) and Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007) ("Leegin").
 

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On January 28, the European Commission (EC) imposed fines of approximately $172m on five companies for their alleged participation in a cartel for marine hoses between 1986 and 2007 in violation of the ban on anticompetitive agreements in the EC Treaty (Article 81).  Marine hoses are used to transport crude oil to and from ships for transportation from production sites.  The EC alleged that the cartel members fixed prices for marine hoses, allocated bids and markets and exchanged commercially sensitive information.  EC Competition Commissioner Neelie Kroes said, “For 20 years, this cartel added to the prices consumers paid for their oil deliveries.  I will not tolerate illegal cartels and will continue to impose heavy fines on those companies found guilty of this kind of serious malpractice."
 

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