The Seventh Circuit refused to revive an exclusive dealing claim by one hospital against its competitor because of an exclusivity agreement with an insurance plan. Judge Richard Posner wrote the short opinion strongly reiterating in the health insurance context the established principle that a competitor trying to attack vertical agreements under Section 1 of the Sherman Act will have an uphill struggle under the Rule of Reason. The case is Methodist Health Services Corp. v. OSF Healthcare System d/b/a Saint Francis Medical Center, No. 16-3791 (7th Cir. June 19, 2017). Continue Reading
The existing EU regulatory framework for electronic communications obliges the EU Member States to provide in their national laws for certain powers and responsibilities of national regulatory authorities (“NRA”), in particular related to the analysis of markets likely to be regulated ex-ante. The fundamental principle since 2003 is that only companies with significant market power (“SMP”) shall be made subject to ex-ante obligations. This is a carefully balanced regulatory system, taking into account the important goal of stimulating market entry, and thus promoting effective competition, while at the same time establishing adequate investment incentives for the network operators. Continue Reading
In April 2017, FCC Chairman Ajit Pai issued a Notice of Proposed Order, Restoring Internet Freedom, seeking to reverse the FCC’s previous adoption of “net neutrality” principles in its March 2015 Open Internet Order. Net neutrality is the principle that internet service providers (“ISPs”) should treat all data equally, regardless of source. Continue Reading
Over the past few years, sophisticated pricing algorithms and artificial intelligence have attracted the attention of antitrust and competition enforcers. These new technologies interpret and respond to market conditions with far more precision, agility, and consistency than their human counterparts. As a result, they may require practitioners to develop new ways of thinking about joint conduct such as price-fixing conspiracies. But to what extent do these innovations really alter traditional antitrust analysis under Section 1 of the Sherman Act? In a recent article published in Competition Policy International’s Antitrust Chronicle, we analyze existing legal doctrines and principles to see if they can offer antitrust and competition practitioners any guidance before we jump into this “brave new world.” Continue Reading
In years past, the focus of private international antitrust disputes was the United States. Over a century of experience, treble damages, class actions and the American rule for attorneys’ fees – plus robust enforcement by the Antitrust Division – have combined to make the United States the natural hub for private cases. That is still true today, but to a lesser extent because emerging private remedies and processes have made European jurisdictions much more viable, and U.S. courts are taking an increasingly close look at the limits of their jurisdiction. The result is litigation increasing across newly empowered jurisdictions: sophisticated and well informed coordination, case management and overarching strategy now are critical. Continue Reading
On 29 March 2017, the same day that United Kingdom has officially launched the Brexit process, the European Commission (Commission) blocked the proposed 29 billion Euro merger between Deutsche Börse AG (DBAG) and London Stock Exchange Group (LSEG) under the EU Merger Regulation; however, the Commission decision (M.7995) has not been published yet. DBAG and LSEG are the two largest stock exchange operators and own the stock exchanges of Germany, Italy and the United Kingdom, as well as several of the largest European clearing houses. In August 2016, the parties filed a merger notification to the Commission with discussions starting as early as February 2016. Since 2000, DBAG and LSEG have tried to merge three times hoping to create a heavyweight in the European stock market. DBAG had previously already been blocked to merge with NYSE Euronext in 2012.
The antitrust injury and antitrust standing defenses/doctrines are alive and well in healthcare. A recent case, SCPH Legacy Corp. et al. v. Palmetto Health et al., shows that a competitor is not always the most legally appropriate plaintiff to bring an antitrust case, especially when the competitor’s alleged harm stems from increased competition. This article explains the court’s reasoning and makes some predictions for similar arguments in the future.
If we needed any reminder that the competitiveness of e-commerce was high on the European Commission’s enforcement agenda, we now have unequivocal proof of this. The Commission today launched three separate investigations under the competition rules against companies operating in the (i) consumer electronics, (ii) video games and (iii) hotel sectors. It is looking into whether these companies are breaching EU competition rules by unfairly restricting retail online prices and/or by excluding customers from certain online offers because of their nationality or location.
In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7
The Division’s January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, “…the Division has more discretion…”( FAQs, p. 22).
Practitioners interested in the real world application of an attempt to monopolize claim under Section 2 of the Sherman Act, will find Savory Pie Guy a “good read” for the New Year. Savory Pie Guy, LLC v. Comtec Industries, Ltd., No. 14-CV-7527, 2016 U.S. Dist. LEXIS 179317 (S.D.N.Y. December 28, 2016). Since the passage of the Sherman Act in 1890, attempted monopolization as a distinct legal theory of liability has received scant attention. It is usually bundled with a set of other but related antitrust theories of liability, including concerted activities in restraint of trade, and often tying and refusal to deal claims. For most of its existence, the theory of attempted monopolization has been under-analyzed intellectually. Savory Pie Guy provides a good and succinct analysis of the distinct elements of an attempt to monopolize claim, and their inter-relationship to the over-arching concept of “monopolization.”