International Arbitration, Investment Protection and EU State Aid Rules: the General Court of the EU Annuls the European Commission’s State Aid Decision in the Micula Case

In a long-awaited ruling of June 18, 2019, the General Court of the European Union (“GCEU”) annulled the European Commission’s 2015 State aid decision in the Micula case (joined cases T-624/15, T-694/15 and T-704/15). The ruling provides valuable clarifications regarding the relationship between intra-EU bilateral investment treaties (“BIT”) and EU State aid rules.

In sum, the GCEU confirmed that the European Commission lacked jurisdiction to apply EU law in a situation where all relevant events took place before accession to the EU. The validity of intra-EU BITs was not at issue because, during the relevant time period, the BIT in question (the 2002 Sweden-Romania BIT) was between a Member State (Sweden) and a third country (Romania). Continue Reading

Why Aren’t There More California Below-Cost Pricing Cases? *

California’s below-cost pricing statute, the Unfair Practices Act (the “UPA”), is perhaps the broadest such statute in the nation, and far broader than comparable federal laws, which have been narrowed in recent decades almost to the vanishing point.  Indeed, the statute—which dates back to the Great Depression and the era of New Deal economics—could be interpreted as a bright line prohibition against pricing just about anything below cost to take business from a competitor.  See Bus. & Prof. Code § 17043.  And yet, at least by the hyperactive standards of contemporary commercial litigation, the statute has not been heavily employed or even spoken about, mainly collecting cobwebs in the dim corners of law libraries. Continue Reading

Between a Rock and a Hard Place: Vitamin C and the Future of U.S. Antitrust Enforcement Against Chinese Companies *

Over the last three decades, government antitrust enforcers and private plaintiffs in the United States have increasingly sought to apply U.S. antitrust laws to conduct by foreign businesses that is deemed to have effects on the U.S. economy. Many of these foreign businesses have been located in Asia:  since the 1990s there have been waves of U.S. criminal prosecutions and civil cases alleging anticompetitive conspiracies between Japanese, Korean, and Taiwanese sellers and manufacturers.  For most of this time, however, companies in mainland China—despite being the largest exporters of goods to the United States, first in Asia and now in the entire world—have rarely been targeted for U.S. antitrust enforcement. Continue Reading

Third Circuit Rejects State’s Bid for Attorney’s Fees in Hospital Merger Dispute

On January 23, 2019, the U.S. Court of Appeals for the Third Circuit (“Third Circuit”) issued an opinion denying the Commonwealth of Pennsylvania the right to recover attorney’s fees after it had successfully blocked a hospital merger. The Third Circuit determined that the state had no federal statutory basis to be awarded attorney’s fees since the injunction had been granted under Section 13(b) of the Federal Trade Commission Act (“FTC Act”), which does not provide for attorneys’ fees, rather than Section 16 of the Clayton Act.

This case establishes binding precedent in the Third Circuit that state attorneys general will only have standing to seek attorneys’ fees in antitrust actions under the Clayton Act when the state actually litigates the case under that section. It also potentially has broader implications if other circuits decide to look to this decision as persuasive authority when deciding similar cases in their jurisdictions. Continue Reading

Loan Syndication and EU Competition Law

The intricate syndicated loan market has recently triggered attention from competition authorities internationally. Recently, the Spanish competition authority fined €91 million a syndicate of four Spanish banks. The Directorate General for Competition (DG COMP) of the European Commission launched a study on the topic in April 2017 (COMP/2017/008 – EU loan syndication and its impact on competition in credit markets). In anticipation of the results of this study, which are expected by the end of 2018 or early 2019, we highlight some of the competition law risks that may cause greater concern. Continue Reading

Eleventh Circuit Denies Blue Cross Blue Shield’s Interlocutory Appeal Challenging Application of Per Se Rule In Multidistrict Litigation In Alabama

On December 12, 2018, the Eleventh Circuit Court of Appeals denied defendants Blue Cross Blue Shield Association’s interlocutory appeal of a District Court decision to analyze BCBS’s geographic market distribution system under the per se rule rather than the rule of reason. Judge R. David Proctor of the Northern District of Alabama certified BCBS’s interlocutory appeal back in June because his decision to proceed under the per se standard of review “involves a controlling question of law as to which there is substantial ground for difference of opinion.” But rather than resolve the substantive legal issue at hand, the Eleventh Circuit issued a one sentence order denying “Defendants’ petition to appeal.” The parties did not seek to stay the case pending appeal and the underlying action has been moving forward. Continue Reading

U.S. Department of Justice Settles Anti-Steering Suit Against Hospital System; First Such Settlement After Amex SCOTUS Decision

On November 15, 2018, the Antitrust Division of the U.S. Department of Justice settled a two-and-a-half year long lawsuit against Atrium Health, a North Carolina hospital system formerly known as the Carolinas HealthCare System, enjoining Atrium’s anti-steering provisions against health plans. This article discusses the DOJ/Atrium settlement in light of the recent Ohio v. American Express Supreme Court decision, which concerned anti-steering provisions in the two-sided credit card network services market. We previously reported on the DOJ’s suit against Atrium here, and analyzed the implications of the SCOTUS Amex decision on health insurance here. Continue Reading

N.D. Cal. Releases Comprehensive Procedural Guidance for Class Action Settlements

On November 1, 2018, the Northern District of California updated its Procedural Guidance for Class Action Settlements, requiring increased disclosures for settlement preliminary and final approval, and more transparency in post-distribution accounting. Failure to follow the Guidance may result in delay or denial of settlement approval. This article highlights the most significant updated rules affecting class action settlements in the Northern District. Continue Reading

New Law Allows Consumers Concerned about Identity Theft to Place Free Credit Freezes and Fraud Alerts

The Federal Trade Commission has announced that, beginning today, consumers concerned about identity theft or data breaches can place credit freezes and one year fraud alerts with the three nationwide credit bureaus for free. The new Economic Growth, Regulatory Relief & Consumer Protection Act also allows parents to freeze for free the credit of their children who are under 16. Continue Reading

Federal Antitrust Regulators Approve Cigna’s Proposed Acquisition of Express Scripts

On Monday, September 17, 2018, the Antitrust Division of the United States Department of Justice (the “DOJ”) cleared Cigna’s proposed $67 billion acquisition of Express Scripts, the country’s largest pharmacy benefit manager. While the transaction still needs the approval of certain state regulatory agencies, obtaining the DOJ’s approval was widely seen as the transaction’s most significant obstacle to overcome. Continue Reading

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