Antitrust

The mere possession of monopoly power does not violate federal antitrust laws. The laws only address the anticompetitive acquisition, maintenance, or abuse of that power.

The NCAA scored a victory last week with the denial of class certification in an antitrust suit challenging the association’s former ban on multiyear scholarships (the “One Year Rule”) and its cap on scholarships (the “GIA Cap”). Plaintiff had alleged that those rules constituted a concerted effort by the NCAA and its member schools to thwart competition.

The Sixth Circuit on Tuesday voted 2 to 1 to reverse a district court’s grant of summary judgment under which a defendant hospital network had been found to be a single entity incapable of conspiring with itself in an anticompetitive manner under Section 1 of the Sherman Act.

In the latest chapter in the litigation wars against college athletics, on March 8, 2016, another antitrust class action was filed against the NCAA in its “home court,” the United States Southern District of Indiana.

An upstart rodeo association, created and owned by professional rodeo cowboys, challenged that its competitor’s bylaws aimed at the new association and its participants constituted agreements that unreasonably restrain trade and monopolize the market in violation of Sections 1 and 2 of the Sherman Act. 

The Federal Trade Commission (FTC) announced on January 21, 2016 increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act).

The Federal Trade Commission (“FTC”) yesterday concluded its antitrust review of  Mylan N.V.’s (“Mylan”)  proposed acquisition of Perrigo Company plc (“Perrigo”) by entering into a proposed consent judgment that would require Mylan to divest seven generic products, including three future pipeline products, to Alvogen Group Inc. (“Alvogen”).

Building on the momentum of early October hearings on the state’s growing health care expenditures, the Health Policy Commission (HPC), the Joint Committee on Health Care Financing, Governor Charlie Baker, and others spent the past two weeks crafting new policies for the industry and its consumers.

Keystone Orthopaedic Specialists, LLC (“Keystone”), and Orthopaedic Associates of Reading, Ltd. (“OA”) reached a settlement with the Federal Trade Commission last week that they had violated the antitrust laws through the consolidation of six independent orthopedic practices in Berks County, Pennsylvania into a single practice.

In North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), the Supreme Court held that the North Carolina Board of Dental Examiners (“Board”), a state agency, was not exempt from federal antitrust laws when it prohibited non-dentists from providing teeth whitening services in competition with the state’s licensed dentists.

In what has become rare of late, the Federal Trade Commission (“FTC”) suffered a litigation loss in a merger case with a district court’s denial of a preliminary injunction to block the deal pending administrative litigation. FTC v. Steris Corporation, 1:15-cv-01080 (N.D. Ohio September 24, 2015).

In June, an antitrust suit brought by plaintiff ambulatory surgery centers against a health system, health insurers, and a trade association survived a motion to dismiss. Last week, the ASCs’ case cleared the hump of summary judgment and will now proceed to trial.

At the request of the Federal Trade Commission (“FTC” or “Commission”), the Department of Justice (“DOJ”) filed this week in federal court a proposed settlement to charges that an investment fund violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a (“HSR Act” or “Act”) by improperly relying on the “investment-only” exemption.

The Federal Trade Commission’s (“FTC” or “Commission”) ever-expanding list of enforcement actions to preserve competition for generic pharmaceuticals just grew in a new direction. 

Late last month, the Ninth Circuit Court of Appeals issued its much-anticipated decision in Microsoft v. Motorola, a breach of contract action brought by Microsoft alleging that Motorola violated its commitment to license its standard essential patents (SEPs) on reasonable and non-discriminatory (RAND) terms.

The federal antitrust enforcement agencies have trumpeted their preferences for structural, as opposed to conduct, remedies as the solution to potentially anticompetitive mergers.

On June 30, 2015, the same day as the launch of Apple’s new streaming music service, the Second Circuit Court of Appeals coincidentally affirmed a district court ruling that Apple conspired with five of the country’s largest book publishers to fix prices for ebooks and coerce Amazon to change its pricing model to accommodate those higher, fixed prices.

Eighteen months after the deal was first announced, Sysco Corporation (“Sysco”) and US Foods, Inc. (“USF”) abandoned their $3.5 billion merger following the Federal Trade Commission’s (the “FTC” or “Commission”) decisive victory in obtaining a preliminary injunction blocking the transaction.

Late last week, the United States Department of Justice (DOJ) and the Michigan Attorney General (AG) filed suit against four southern Michigan hospitals, alleging that they secretly agreed not to compete with each other in violation of Section 1 of the Sherman Act and Section 2 of the Michigan Antitrust Reform Act.

Over two and one-half years after it was initially filed, an antitrust suit brought by plaintiff ambulatory surgery centers (“ASCs”) against health insurers and a trade association of competing health systems is finally moving forward.