Winds of change are blowing through Europe’s national courts, beginning with a new antitrust damages Directive requiring changes in national laws to facilitate private enforcement of competition law. This step was a major change, and an equally significant development has taken place in the U.K., which will make it even more attractive to private enforcement. As of 1 October, 2015, the U.K.’s long-anticipated opt-out class action procedure will be available.
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Ninth Circuit Affirms Dismissal of Challenge to Alleged Horizontal Adoption of Minimum Advertised Prices
In what has been described as the latest opinion on the use of hub and spoke theories to allege conspiracies in violation of Section 1 of the Sherman Act, the plaintiffs took the position that the viability of their claims depended exclusively on whether they had adequately alleged a horizontal conspiracy. In re: Musical Instruments and Equipment Antitrust Litigation, No. 12-56674, 2015 U.S. App. Lexis 14960, slip op. at 13-14 (9th Cir. August 25, 2015) (“Plaintiffs made it clear both before the district court and on appeal that their theory of the case depends on establishing . . . horizontal agreements”). Plaintiffs did not claim that the “hub’s” conduct constituted part of the alleged antitrust violations. Id. at 22 n.9 (“nor do plaintiffs allege that the MAP policies themselves are illegal vertical agreements”); id. at 14 n.4. Plaintiffs pleaded a number of asserted “plus factors” to support their horizontal theories, all of which were rejected by the district court and the Ninth Circuit majority, which relied extensively on Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
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“Individual Accountability for Corporate Wrongdoing”: A Sea Change Or Not?
On Thursday, September 10, 2015, Deputy Attorney General Sally Quillian Yates delivered remarks announcing a memorandum delivered to all federal prosecutors, including the Antitrust Division: “Individual Accountability for Corporate Wrongdoing”. She said the purpose of this memorandum was “to ensure that individual accountability lies at the heart of corporate enforcement strategy.” She outlined “six specific steps” to accomplish that goal. She emphasized the first step:
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The Second Circuit’s Apple Ebooks Opinion
The Second Circuit affirmed the district court and held, 2 to 1, that defendant Apple Inc. had violated Section 1 by masterminding the creation, organization and implementation of a conspiracy by five publishers of ebooks that benefited Apple, as Apple intended, by eliminating retail price competition from Apple’s rival, Amazon, in the sale of ebooks. United States v. Apple Inc., No.13-3741 (2d Cir. June 30, 2015).[1]
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Cross Subsidization For Purpose Of Enhanced Grocery Sales Through Alleged Below Cost Gasoline Discounts Found Not To Violate California Unfair Practices Act
Injury to competing retail fuel stations is non-actionable where market conditions demonstrate that an “incipient antitrust violation” is not imminent. Dixon Gas Club LLC v. Safeway Inc., Case No. A139283 (Court of Appeal 1st Dist. July 20, 2015) (not for publication).
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FTC “Enforcement Principles” for Section 5 of the FTC Act: Is Something Better than Nothing?
For many years, antitrust practitioners have struggled to understand exactly how the FTC will analyze and enforce Section 5’s prohibition of “unfair methods of competition.” Counseling clients has been challenging. In a short one-page release on August 13, 2015, the FTC published its first ever policy statement in an apparent effort to address those uncertainties.
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Regulatory Capture Vitiates State Action Immunity
The Supreme Court has ruled that when an oversight mechanism created by a State—here a State Board—is under the control of those it was supposed to be regulating (sometimes referred to by economists as “regulatory capture”)[1], anticompetitive actions taken by the State Board on its own without further official government review or approval enjoy no immunity under the state action doctrine. North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S.___, 135 S.Ct. 1101 (Feb. 25, 2015) (“N.C. State Board“).
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There Is Potential Federal Inconsistency Over ACOs
On June 4, 2015, the Centers for Medicare & Medicaid Services issued final revisions to regulations governing accountable care organizations participating in the Medicare Shared Savings Program (“MSSP”). Among them…
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Federal Trade Commission Continues March “to Set a Standard for the Industry” with Cephalon Settlement
On May 28, the Federal Trade Commission (“FTC”) announced it had reached a $1.2 billion settlement with Teva Pharmaceuticals,[1] which acquired Cephalon in 2012, over reverse payment for its narcolepsy drug, Provigil. The Cephalon settlement also has non-monetary terms that bar Cephalon from entering agreements that include (i) payments to a generic filer and (ii) an agreement by a generic filer not to develop or market a drug within 30 days of a patent settlement that impedes generic entry.[2] The FTC has lauded the outcome of Cephalon—its first settlement post-Actavis[3]—with FTC Chairwoman Edith Ramirez hailing it as a “landmark settlement” and “an important step in the FTC’s ongoing effort to protect consumers from anticompetitive pay for delay settlements.”[4]
Continue Reading Federal Trade Commission Continues March “to Set a Standard for the Industry” with Cephalon Settlement
Federal Trade Commission Continues March “to Set a Standard for the Industry” with Cephalon Settlement
On May 28, the Federal Trade Commission (“FTC”) announced it had reached a $1.2 billion settlement with Teva Pharmaceuticals,[1] which acquired Cephalon in 2012, over reverse payment for its narcolepsy drug, Provigil. The Cephalon settlement also has non-monetary terms that bar Cephalon from entering agreements that include (i) payments to a generic filer and (ii) an agreement by a generic filer not to develop or market a drug within 30 days of a patent settlement that impedes generic entry.[2] The FTC has lauded the outcome of Cephalon—its first settlement post-Actavis[3]—with FTC Chairwoman Edith Ramirez hailing it as a “landmark settlement” and “an important step in the FTC’s ongoing effort to protect consumers from anticompetitive pay for delay settlements.”[4]
Continue Reading Federal Trade Commission Continues March “to Set a Standard for the Industry” with Cephalon Settlement