Archives: Antitrust Litigation

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A Familiar Refrain: Judges Remind Lawyers and Their Experts of the Importance of Explaining Antitrust Cases in a Way Laypeople Can Understand

Photo of Carl HittingerPhoto of Justin KadouraBy Carl Hittinger and Justin Kadoura on Posted in Antitrust Litigation
Key Takeaways: Panelists echoed a familiar tune at the 2023 ABA Antitrust Spring Meeting’s “Views from the Bench”:  Judges wish antitrust lawyers and their expert witnesses would do a better job of explaining and narrowing down the factual and legal issues in their cases.[1]  The problems associated with the opacity of antitrust cases come up … Continue Reading

DOJ’s Kanter: New Merger Guidelines to Address Enforcement’s ‘Disconnect’ with Court Precedent and Market Realities

Photo of Joshua JowdyPhoto of Thomas HoganBy Joshua Jowdy and Thomas Hogan on Posted in Antitrust Litigation
On Sept. 13, Assistant Attorney General Jonathan Kanter delivered remarks[1] at the Georgetown Antitrust Law Symposium, largely focusing on merger control enforcement at the Department of Justice (DOJ) under his leadership. After touting the Antitrust Division’s increased appetite for merger control litigation in the 10 months since his appointment, delivering on a promise that negotiated … Continue Reading

Baseball’s Antitrust Exemption Marks Its 100th Anniversary with a New Challenge

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust Litigation
For more than a century, minor league baseball and Major League Baseball (MLB) have thrived in a symbiotic relationship. Minor league teams affiliate with major league teams for financial support and access to major league staff. In exchange, major league teams receive a share of minor league revenue and access to budding talent. The year … Continue Reading

Decision Benefits Franchise Businesses and Finds Alston Bars Challenge to No-Poach Agreements

Photo of BakerHostetlerPhoto of Nicholas RosePhoto of Tyson HerroldBy BakerHostetler, Nicholas Rose and Tyson Herrold on Posted in Antitrust Litigation
In June 2021, the Supreme Court reaffirmed in NCAA v. Alston that antitrust claims under Section 1 of the Sherman Act “presumptively” call for rule-of-reason analysis and that only the rare case merits “quick look” or per se treatment. __ U.S. __, 141 S.Ct. 2141, 2151 (2021). Recently, in Deslandes v. McDonald’s USA, LLC, Judge Jorge … Continue Reading

Executive Order Addresses DOJ’s Fight Against Hoarding Activity

Photo of Rachel Palmer HooperBy Rachel Palmer Hooper on Posted in Antitrust Litigation
On the afternoon of March 23, 2020, United States Attorney General William Barr participated in the Coronavirus Task Force press briefing. Attorney General Barr revealed that, on March 23, President Trump issued an executive order allowing prosecution of hoarding that threatens the supply of necessary medical and health resources.[1] Once specific materials are designated as … Continue Reading

Protection of Consumers and the Public in Response to the COVID-19 Pandemic

Photo of Rachel Palmer HooperBy Rachel Palmer Hooper on Posted in Antitrust Litigation
Federal and state authorities are working to protect consumers and the public during the current COVID-19 pandemic. The Department of Justice (DOJ) issued a cautionary press release announcing its “intention to hold accountable anyone who violates the antitrust laws of the United States in connection with the manufacturing, distribution, or sale of public health products … Continue Reading

When Routine Merger Review Opened More Than a Can of Tuna

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation
The shelf-stable tuna industry has been decidedly unstable behind the shelves. In 2014, two of the “big three” industry leaders – Bumble Bee Foods and Chicken of the Sea – announced a proposed merger that would have swamped the then-industry leader StarKist. The shelf-stable tuna industry has been decidedly unstable behind the shelves. In 2014, … Continue Reading

Carl Hittinger, Jeanne-Michele Mariani Author Article Examining NCAA’s Monopoly Status

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation, Articles
Partner Carl Hittinger, the Antitrust and Competition team leader, and Associate Jeanne-Michele Mariani authored an article published in the March 29, 2019, issue of The Legal Intelligencer. The article, “The NCAA, Which Is Tied to Education, May Be a Necessary Monopoly,” discusses a recent successful challenge made to the NCAA’s governing policies on antitrust grounds. … Continue Reading

Carl Hittinger, Jeanne-Michele Mariani Assess Justice Kavanaugh’s Testimony Regarding Antitrust Law

Photo of Carl HittingerPhoto of Jeanne-Michele MarianiBy Carl Hittinger and Jeanne-Michele Mariani on Posted in Antitrust Litigation
Partner Carl Hittinger and Associate Jeanne-Michele Mariani authored an article published Oct. 26, 2018, by The Legal Intelligencer. The article, “Justice Kavanaugh’s Antitrust Testimony Before the Senate Judiciary Committee,” examines the testimony of U.S. Supreme Court Justice Brett Kavanaugh during his confirmation hearings last month, before his nomination was approved in the Senate. They write that when asked about his … Continue Reading

BakerHostetler Partners Publish Article Examining Reverse-Payment Suits Five Years After Actavis

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation, Healthcare, Patents
Partners Carl Hittinger and Jeffry Duffy authored an article published by The Legal Intelligencer on July 27, 2018. The article, “Actavis and Reverse-Payments Suits in the Third Circuit After Five Years,” examines how purportedly anticompetitive patent-litigation settlement agreements between rival branded and generic pharmaceutical manufacturers—so-called “reverse payment” or “pay for delay” settlements—have generated numerous private lawsuits and remain one … Continue Reading

Did You Know the ‘Plausibility’ Standard Can Be Used for More Than Pleading Antitrust Claims?

Photo of Danyll FoixBy Danyll Foix on Posted in Antitrust Litigation, Articles
Partners Robert Abrams, Gregory Commins, and Danyll Foix authored an article published in the Global Competition Review’s “The Antitrust Review of the Americas 2018.” Their article reviews how the “plausibility” pleading standard announced by the Supreme Court in recent years has changed not only how claims are alleged, but also how this standard may be … Continue Reading

DOJ Now Targeting HR Professionals for Criminal Antitrust Violations

Photo of Tyson HerroldPhoto of Carl HittingerBy Tyson Herrold and Carl Hittinger on Posted in Antitrust Litigation
Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on March 30, 2018. The article, “DOJ Now Targeting HR Professionals for Criminal Antitrust Violations,” examines the Department of Justice’s (DOJ) ongoing enforcement of certain no-poach employee and wage-fixing cases. Specifically, the article lists DOJ complaints successfully filed against employers and analyzes the difference between naked … Continue Reading

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

Photo of Bill DeVinneyBy Bill DeVinney on 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

Should a Judge’s Personal Judicial Experience Affect Antitrust Pleadings?

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust Litigation
When the U.S. Supreme Court scrapped Conley v. Gibson’s “no set of facts” federal pleading standard in Twombly (2007) and Iqbal (2009), courts initially struggled to apply the inherently ambiguous “plausibility” standard. In the immediate aftermath, some courts frankly misconstrued Twombly and Iqbal to invite a Daubert-style “gate keeper” appraisal of complaints in which judges could (and should) prune claims that, based on their own personal experience … Continue Reading

Has the Third Circuit Just Scrambled ‘Umbrella Damages’?

Photo of Danyll FoixBy Danyll Foix on Posted in Agriculture, Antitrust Litigation
A recent decision by the Third Circuit permits plaintiffs to pursue antitrust damages for egg products supplied by non-conspiring parties. This decision could represent a crack in the “umbrella damages” rule that precludes plaintiffs from seeking damages for transactions with parties that are not part of an alleged antitrust conspiracy. Umbrella damages often come up … Continue Reading

Supreme Court to Decide First Antitrust Case in Two Years

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust Litigation, Articles, Sherman Act 2
On Oct. 16, the U.S. Supreme Court granted certiorari in United States v. American Express, the court’s first antitrust case of the 2017 term and the first antitrust case they have reviewed since 2015. The American Express case presents complex questions about the legality of anti-steering provisions in agreements between credit card companies and the … Continue Reading

Second Circuit Resurrects LIBOR Antitrust Case Against Bank Defendants, But Reprieve May Be Short-Lived

Photo of Terry SullivanBy Terry Sullivan on Posted in Antitrust Litigation, Class Action Litigation
On May 23, 2016, the Second Circuit breathed new life into the class action case against 16 banks belonging to the British Bankers’ Association (the Banks), vacating the Southern District of New York’s dismissal of the case for lack of antitrust injury and remanding the case on the portion of antitrust standing that requires the … 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

Photo of Bill DeVinneyBy Bill DeVinney on 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

Scalia’s Antitrust Legacy: Part 2, The Dissenting Opinions

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust Litigation, Articles
In March, we wrote about Justice Antonin Scalia’s three majority opinions in substantive antitrust cases. Notably, Scalia also authored three dissenting opinions in substantive antitrust cases, in rapid-fire succession in 1991, ’92 and ’93. In the majority opinions, Scalia seized upon alternative, innocuous explanations for alleged anticompetitive conduct, even when an anticompetitive motive was equally … Continue Reading

Caught Between a Rock and a Hard Place: The Second Circuit to Decide Appeal From Cartel Defendants Who Argued Compliance With Chinese Law Resulted in Sherman Act Violations

Photo of Torello CalvaniBy Torello Calvani on Posted in Antitrust Litigation, Sherman Act 1
On January 28, 2016, the United States Court of Appeals for the Second Circuit heard arguments on whether the doctrines of act of state, foreign sovereign compulsion, and international comity required the reversal of a jury’s verdict against two Chinese companies that were found liable for violating Section 1 of the Sherman Act. The plaintiffs … Continue Reading

FTC’s Amicus Brief in Wellbutrin XL Appeal Highlights Significance for Interpretation of Actavis

By Mitchell Oates on Posted in Antitrust Litigation
The FTC has recently weighed in again on the evolving interpretation of the Supreme Court’s 2013 opinion in FTC v. Actavis, 133 S. Ct. 2223 (2013). The agency submitted an amicus brief to the Third Circuit in the appeal of the district court’s September 2015 grant of summary judgment in In re Wellbutrin XL Antitrust … Continue Reading

Justice Scalia’s Antitrust Legacy: Part 1, The Majority Opinions

Photo of Carl HittingerPhoto of Julian PerlmanBy Carl Hittinger and Julian Perlman on Posted in Antitrust Litigation, Articles
Justice Antonin Scalia once observed that “the American people are neither sheep nor fools,” in McConnell v. Federal Election Commission, 540 U.S. 93 (2003). During his 30 years on the U.S. Supreme Court, he wrote 104 majority opinions but only three of those addressed substantive antitrust issues. This article addresses those three seminal antitrust opinions. Next … Continue Reading

Turing Pharmaceuticals Facing NY Antitrust Inquiry in Wake of 5,000 Percent Price Hike

Photo of Julian PerlmanBy Julian Perlman on Posted in Antitrust Litigation, Healthcare
Turing Pharmaceuticals is back in the news over its marketing and distribution of Daraprim, the anti-parasitic drug crucial for treating toxoplasmosis, which can be fatal to patients with compromised immune systems. As you have probably read by now, Turing recently acquired the rights to Daraprim and thereafter announced its intention to raise the cost of … Continue Reading
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