Bill DeVinney

Update: Section 1 Challenge to Jimmy John’s No-Poach Agreement Survives Motion to Dismiss

By Bill DeVinney on August 8, 2018 Posted in Class Action Litigation, Sherman Act 1

We recently wrote that the Department of Justice’s and the Federal Trade Commission’s announcements condemning no-poaching agreements already have sparked civil class actions, including a putative class action against Jimmy John’s. Butler v. Jimmy John’s Franchise, LLP, No. 18-cv-0133, 2018 WL 3631577 (S.D. Ill. July 31, 2018). Since then, the district court denied a motion … Continue Reading

Ohio v. American Express: The Supreme Court Credits American Express’s Anti-Steering Provisions

By Bill DeVinney on July 10, 2018 Posted in Sherman Act 1

In a 5-4 decision in Ohio v. American Express, the Supreme Court affirmed that the anti-steering provisions of American Express’s merchant agreement do not violate Section 1 of the Sherman Act. Credit card companies’ core business involves two transactions. First, the credit card company provides credit services to its cardholders, as well as additional benefits … Continue Reading

The Department of Justice Weighs In on the Application of North Carolina Dental Examiners to the Florida State Bar

By Bill DeVinney on March 23, 2018 Posted in Antitrust Litigation, FTC

The Department of Justice (DOJ) recently took the uncommon step of submitting an amicus brief to weigh in on a motion to dismiss. TIKD Services, LLC v. The Florida Bar, No. 1:17-cv-24103 (S.D. Fla. filed Nov. 8, 2017), Dkt. 115. Specifically, the DOJ intervened to clarify whether the analysis set forth in the Supreme Court’s … Continue Reading

The FTC Is Looking You Up and Down(stream): Insights From the Acting Director of the Bureau of Competition on Antitrust Enforcement for Vertical Mergers

By Bill DeVinney on January 25, 2018 Posted in FTC, Merger

Since Assistant Attorney General Delrahim’s inaugural remarks on vertical mergers (covered here), the business press has been atwitter about the antitrust enforcement agencies’ views of those mergers. Bruce Hoffman, the acting director of the Federal Trade Commission Bureau of Competition, recently delivered a speech explaining that the FTC will continue to review vertical mergers as … Continue Reading

Is That a Carrot or a Stick in Your Hand? The Third Circuit Examines the Line Between Competition and Coercion in De Facto Exclusive Dealing Agreements

By Bill DeVinney on May 18, 2016 Posted in Antitrust Litigation, Sherman Act 2

We recently wrote about attempts to force exclusivity onto customers. But firms with large or dominant market shares often must walk a fine line between properly offering customers percentage-based discounts and improperly coercing customers into de facto exclusivity. For example, if a dominant firm offers a 25 percent price reduction to a customer that purchases … Continue Reading

Sounding the Alarm: White House Agency Warns of Decreasing Competition Across U.S. Economy

By Bill DeVinney on April 25, 2016 Posted in Antitrust & Politics

The Council of Economic Advisors, a White House agency charged with advising the president on economic policy, recently issued a report, Benefits of Competition and Indicators of Market Power, addressing the state of competition in the United States economy. The report expresses concern that competition is being eroded in many industries across the U.S. economy, … Continue Reading

FTC Skeptical of West Virginia Legislature’s Proposal to Immunize Certain Health Care Providers’ Activities from Antitrust Laws

By Bill DeVinney on March 25, 2016 Posted in Healthcare

We recently wrote about the FTC filing a complaint, In re Cabell Huntington Hospital (FTC Docket No. 9366), objecting to the merger of two West Virginia hospitals. The FTC filed its complaint against the wishes of West Virginia’s antitrust enforcer, Attorney General Patrick Morrisey, who approved the merger. In addition to challenging the merger, the … Continue Reading

Are the Patent Trolls Vulnerable to Antitrust Claims?

By Bill DeVinney on February 1, 2016 Posted in Patents

We previously wrote about the nascent efforts of legislators, regulators, and representatives of technology-dependent industries to use the antitrust laws, such as Section 2 of the Sherman Act or Section 7 of the Clayton Act, to rein in perceived abuses by patent aggregation entities (“PAEs”), more commonly known as patent trolls. One potential difficulty in … Continue Reading

‘Product-Hopping’ Can Be Snagged Under the Antitrust Laws

By Carl Hittinger, Gary Levin and Bill DeVinney on February 2, 2015 Posted in Antitrust Litigation, Articles

The Drug Price Competition and Patent Term Restoration Act, more commonly known as the Hatch-Waxman Act, together with the patent laws, attempt to advance the competing goals of preserving pharmaceutical companies’ incentives to make the staggering investments necessary to bring new, improved drugs to market, as well as fostering lower prices through competition from generic … Continue Reading

Hitting Below the Belt? MMA Fighters Allege That UFC Has Monopolized the Mixed Martial Arts Game

By Bill DeVinney on December 19, 2014 Posted in Antitrust Litigation, Sherman Act 2

Throughout their history, professional sports leagues, including the National Football League, the National Basketball Association, and the National Hockey League, have generated high-profile antitrust litigation. The nascent sport of mixed martial arts now looks as if it will join that list, as two MMA fighters have brought a putative class action in the Northern District … Continue Reading

Patent Trolls, Anti-Trolls, and Antitrust Law Collide in Patent Licensing Dispute

By Bill DeVinney on December 13, 2013 Posted in Antitrust Litigation, Patents, Sherman Act 1

We previously wrote that regulators are considering using antitrust laws to reign in perceived abuses by non-practicing entities or, more familiarly, “patent trolls” – entities that purchase the rights to patents not to practice the patents but to enforce them through licensing or litigation. In a recent case, antitrust laws are taking center stage in … Continue Reading

Antitrust Treble Damages for Patent Infringement? Yes, According to Groundbreaking Decision

By Danyll Foix and Bill DeVinney on September 26, 2013 Posted in Patents, Sherman Act 2

The Eastern District of Texas recently held that patent infringement can constitute anticompetitive conduct for monopolization claims under Section 2 of the Sherman Act, in Retractable Technologies Inc. v. Becton Dickinson & Co., No 2:08-cv-00016 (E.D. Tex.). After an eight-day trial, the jury for Retractable Technologies found that Becton Dickinson had attempted to monopolize the market for safety … Continue Reading

Update: Where (and What) is the Harm?

By Bill DeVinney on September 6, 2013 Posted in Antitrust Litigation, Sherman Act 1

Court denies antitrust plaintiffs’ request to amend complaint in LIBOR manipulation case We previously wrote about Judge Buchwald of the Southern District of New York dismissing plaintiffs’ antitrust claims arising from the LIBOR manipulation scandal. Recently, the Court denied plaintiffs’ request to cure the defects in its claims by filing a second amended complaint. In re LIBOR-Based … Continue Reading

Court Tackles Product Market Definition for NFL-Licensed Apparel Case

By Bill DeVinney on August 16, 2013 Posted in Antitrust Litigation

Beginning in 1922 with the Supreme Court’s decision in Federal Baseball Club of Baltimore v. National League of Professional Baseball, professional sports leagues have been involved in antitrust litigation. In those cases, the parties often disagree about the relevant product market, and particularly whether the relevant product is the league as a whole that competes against other … Continue Reading

Update: Are the Regulators Coming for the Patent Trolls?

By Bill DeVinney on June 18, 2013 Posted in Patents

We recently wrote about a workshop held by the Department of Justice and the Federal Trade Commission to discuss perceived abuses by patent acquisition entities. The workshop included a panel discussion about whether the potential harm to innovation and competition caused by PAEs, particularly with regard to patent aggregators who may acquire market power, or … Continue Reading

LIBOR Going Forward: How Will Dismissal of Antitrust Claims Affect Investigations and Private Claims?

By Bill DeVinney on May 20, 2013 Posted in Antitrust Litigation, Government Investigations, Sherman Act 1

We recently wrote about the dismissal of the plaintiffs’ antitrust claims against banks involved in the LIBOR manipulation scandal for failure to allege an antitrust injury. Since that dismissal, the court has granted plaintiffs leave to move to amend their complaints, although the court openly questioned whether the plaintiffs’ proposed amendments cured the defects in … Continue Reading

Where (and What) Is the Harm?

By Bill DeVinney on May 2, 2013 Posted in Antitrust Litigation, Sherman Act 1

Antitrust claims in LIBOR manipulation cases dismissed for lack of antitrust injury. The recent LIBOR suppression scandal has given rise to numerous lawsuits, both individual and putative class actions based on several theories of recovery, that have been consolidated in the Southern District of New York. LIBOR is calculated by averaging certain British Banking Association … Continue Reading

No Standing for Illegal Drugs: Third Circuit Limits Antitrust Standing for Foreign Drug Manufacturers Absent FDA Approval

By Bill DeVinney on February 7, 2013 Posted in Antitrust Litigation, Sherman Act 1, Sherman Act 2

A Third Circuit panel recently ruled that a foreign drug manufacturer lacks antitrust standing when it could only sell its product in the United States through a distributor. In Ethypharm S.A. France v. Abbott Laboratories, Ethypharm, a French company, manufactured the drug fenofibrate and sold it under the brand name Antara. Because of the substantial time … Continue Reading

Are the Regulators Coming after the Patent Trolls?

By Bill DeVinney on December 21, 2012 Posted in Government Investigations, Patents

FTC and DOJ discuss antitrust implications of patent acquisition entities The Federal Trade Commission and the Department of Justice recently held a workshop to discuss the effects of patent assertion entities (PAEs) on innovation and competition. A PAE, more commonly, and more colorfully, known as a patent troll, is an entity that buys patent rights … Continue Reading

Walker Process Claim Could Lead to Antitrust Class Action by Consumers

By Bill DeVinney on December 5, 2012 Posted in Antitrust Litigation, Class Action Litigation, Patents

The Federal Circuit Rules Direct Purchasers Can Bring Walker Process Claims Antitrust issues often arise in patent cases. A patent, after all, is a government-sanctioned monopoly on the patented invention or technology. But the Supreme Court held, in Walker Process Equipment, Inc., v. Food Machinery & Chemical Corp., that a patentee that obtained its patent … Continue Reading