Archives: Articles

Antitrust Agency Turf War Over Big Tech Investigations

By BakerHostetler on October 9, 2019 Posted in Articles

The Federal Trade Commission and the Department of Justice have found themselves under the microscope as calls for antitrust investigations into “Big Tech” companies escalate. The Federal Trade Commission and the Department of Justice have found themselves under the microscope as calls for antitrust investigations into “Big Tech” companies escalate. The agencies, which share civil … Continue Reading

Does Section 2 of the Sherman Antitrust Act Need More Bite?

By BakerHostetler on September 26, 2019 Posted in Articles

Last month, two members of Congress introduced the Monopolization Deterrence Act, which would allow the Justice Department and the Federal Trade Commission to seek civil penalties for monopolization offenses under U.S. antitrust law. After almost 120 years, does the Sherman Antitrust Act need statutory tweaking? Sens. Amy Klobuchar and Richard Blumenthal seem to think so. … Continue Reading

Is Big Chicken Cooked? DOJ Intervenes in Price-Fixing Investigation

By Carl Hittinger and Jeanne-Michele Mariani on August 5, 2019 Posted in Articles

Pork is the other white meat, beef is what’s for dinner, and chicken is now under investigation by the Department of Justice for possible antitrust violations. Looks like the DOJ is back in the criminal cartel investigation business. In June, the DOJ intervened in a class action antitrust lawsuit, filed in the U.S. District Court … Continue Reading

Carl Hittinger, Jeanne-Michele Mariani Article Takes a Look at Antitrust Division’s Renewed Focus on Bid Rigging

By BakerHostetler on June 19, 2019 Posted in Articles

Partner Carl Hittinger and Associate Jeanne-Michele Mariani authored an article published May 8, 2019, by The Legal Intelligencer. The article, “Antitrust Division’s Renewed Focus on Bid Rigging Promises to be Perilous,” focuses on the Department of Justice Antitrust Division’s campaign to investigate and prosecute criminal cartel behavior relating in particular to bid rigging involving government … Continue Reading

Carl Hittinger, Tyson Herrold Article Examines Antitrust Legacy of Former Chief Judge Dolores Sloviter

By BakerHostetler on May 21, 2019 Posted in Articles

Partner Carl Hittinger and Associate Tyson Herrold authored an article published on April 12, 2019, by Temple University’s business law publication, The Temple 10-Q. The article, “Judge Dolores K. Sloviter’s Antitrust Legacy,” discusses the significant antitrust contributions of former Chief Judge of the Third Circuit Sloviter, from her days as an antitrust lawyer to her … Continue Reading

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

By BakerHostetler on April 10, 2019 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, Julian Perlman Article Examines Antitrust Legacy of Judge Thomas Vanaskie

By BakerHostetler on March 11, 2019 Posted in Articles

Partner Carl Hittinger and Counsel Julian Perlman authored an article published March 1, 2019, by The Legal Intelligencer. The article, “Circuit Judge Thomas Vanaskie’s Antitrust Legacy: 2 Significant Cases,” examines opinions issued by recently retired Third Circuit and former MDPA Chief Judge Vanaskie. The article discusses Vanaskie’s thorough and fair-minded opinions in the epic antitrust dispute between competitors Santana Products … Continue Reading

A Look at Judge Kavanaugh’s Antitrust Record

By Carl Hittinger and Tyson Herrold on September 10, 2018 Posted in Articles

BakerHostetler Partner Carl Hittinger and Associate Tyson Herrold authored an article published Aug. 24, 2018, by The Legal Intelligencer. The article, “Is Judge Kavanaugh a Fan of Antitrust Laws? Let’s Take a Look,” examines the limited antitrust jurisprudence record of U.S. Court of Appeals Judge Brett Kavanaugh, who has been nominated to replace Justice Anthony … Continue Reading

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

By Danyll Foix on June 26, 2018 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

New Antitrust Division Chief Prioritizes Regulation of Standard Setting Organizations

By Carl Hittinger and Tyson Herrold on December 6, 2017 Posted in Articles, Patents

As we discussed in our May 2017 article, the current head of the DOJ’s Antitrust Division, Makan Delrahim, brings considerable intellectual property experience to the division. Delrahim started his legal career at the Office of the U.S. Trade Representative as deputy director for intellectual property rights. He later served on the Intellectual Property Task Force … Continue Reading

Supreme Court to Decide First Antitrust Case in Two Years

By Carl Hittinger and Tyson Herrold on November 9, 2017 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

Presidential Powers and Antitrust Politics: Part Three

By Carl Hittinger and Tyson Herrold on October 13, 2017 Posted in Antitrust & Politics, Articles

In July and August, we discussed the president’s role in setting antitrust policy at the Department of Justice, Antitrust Division. Specifically, we pointed out that presidents routinely face competing domestic and foreign policy challenges that require a delicate balance and flexible approach to antitrust enforcement. For example, President John F. Kennedy directed the DOJ to … Continue Reading

Presidential Powers and Antitrust Politics: Part One

By Carl Hittinger and Tyson Herrold on July 31, 2017 Posted in Antitrust & Politics, Articles

In June, we discussed the Trump administration’s candidate for the top post in the Department of Justice’s Antitrust Division: Makan Delrahim. During Delrahim’s confirmation hearing, Sen. Amy Klobuchar pressed him, “What would you do, if you’re in this job, if the president, or the vice president, or a White House staffer calls, and wants to … Continue Reading

The ‘Failing Firm’ Defense and How Not to Lose It, Article Explains

By BakerHostetler on July 19, 2017 Posted in Articles, Merger, Merger Review

Law360 featured an insightful article today on a recently unsealed court opinion blocking the $367 million merger of rival nuclear waste processing companies. The court blocked the merger, while rejecting the parties’ argument that the deal should be approved because otherwise the acquired firm would collapse and the market would suffer. The merging companies did not … Continue Reading

DOJ’s Possible Antitrust Chief’s Senate Confirmation Hearing

By Carl Hittinger and Tyson Herrold on June 19, 2017 Posted in Antitrust & Politics, Articles

Last month, we discussed Makan Delrahim’s background, including his experience litigating antitrust and intellectual property matters at the Department of Justice during the George W. Bush administration and his extensive lobbying work at Brownstein, Hyatt, Farber and Schreck. On May 10, senators from the Senate Judiciary Committee held a hearing and asked Delrahim about several … Continue Reading

Trump’s Pick for Department of Justice Antitrust Division Chief

By Carl Hittinger and Tyson Herrold on May 4, 2017 Posted in Antitrust & Politics, Articles

Last month we discussed Supreme Court Justice Neil Gorsuch’s confirmation hearings. Specifically, we noted the Senate Judiciary Committee’s failure to nail Gorsuch down on key antitrust issues, including issues he handled as an experienced antitrust lawyer and decided as a judge on the U.S. Court of Appeals for the Tenth Circuit, which we also wrote … Continue Reading

The Senate’s Uneventful Gorsuch Confirmation Hearing

By Carl Hittinger and Tyson Herrold on April 25, 2017 Posted in Antitrust & Politics, Articles, Sherman Act 2

Recently, we discussed in prior articles the antitrust legacy of Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit and nominee for the Supreme Court of the United States. Gorsuch has significant antitrust experience, both in private practice and on the bench. While at Kellogg, Huber, Hansen, Todd, Evans … Continue Reading

Antitrust Legacy of High Court Nominee Gorsuch in Private Practice

By Carl Hittinger and Tyson Herrold on April 4, 2017 Posted in Antitrust & Politics, Articles, Sherman Act 2

Last month, we discussed the antitrust jurisprudence of Neil Gorsuch, currently of the U.S. Court of Appeals for the Tenth Circuit judge and nominee to the Supreme Court of the United States. Our discussion focused on three of Gorsuch’s opinions during his decade-long tenure with the court of appeals. Even before Gorsuch was nominated to … Continue Reading

The Antitrust Points of View of Supreme Court Nominee Neil Gorsuch

By Carl Hittinger and Tyson Herrold on February 21, 2017 Posted in Antitrust & Politics, Articles

Last March, we wrote a series of articles discussing Supreme Court Justice Antonin Scalia’s antitrust legacy on the Supreme Court. We noted Scalia’s admitted discomfort with the Sherman Act, specifically with holding corporate defendants, even monopolists, liable absent strong evidence of anti-competitive conduct. His likely successor appears to possibly hold similar views of the antitrust … Continue Reading

Carl Hittinger Examines American Monopolists through the Lens of History, Politics

By BakerHostetler on February 2, 2017 Posted in Articles, BakerHostetler, Sherman Act 2

Partner Carl Hittinger has authored a series of articles for The Legal Intelligencer that explores the history of select American monopolists by posing two fundamental questions: Why have some monopolists succeeded in gaining, maintaining and increasing monopoly power where others have failed? Why does history keep repeating itself and the basic lessons taught have not … Continue Reading

Abrams, Commins, Foix Author Article on Antitrust Suit Counterclaims

By BakerHostetler on January 23, 2017 Posted in Articles, BakerHostetler

Partners Robert Abrams, Gregory Commins and Danyll Foix authored an article published in “The Antitrust Review of the Americas 2017,” published by Global Competition Review. Their article, “United States: Private Antitrust Litigation,” reviews counterclaims in antitrust litigation in the United States and discusses the strategies behind their use in intellectual property, franchise, distribution and other … Continue Reading

BakerHostetler Antitrust Lawyer Reviews Unusual Incentive Payment/Failing Firm Defense Remedy in Recent Hospital Merger

By BakerHostetler on November 17, 2016 Posted in Articles, FTC, FTC Act, Government Investigations, Healthcare, Merger Review

Antitrust Partner Danyll W. Foix wrote an article, published November 17, 2016 by Law360, reviewing the Federal Trade Commission’s acceptance of an unusual settlement for a challenged hospital merger, explaining that “the settlement ends the FTC’s challenge of a transaction that was too small to be reportable under the Hart-Scott-Rodino Act, and the settlement is … Continue Reading

How to Avoid Antitrust Trouble in Wake of North Carolina Dental Ruling on State Action Immunity

By BakerHostetler on July 25, 2016 Posted in Antitrust Exemptions & Immunities, Articles, BakerHostetler

BakerHostetler Antitrust Litigation Partners Robert Abrams, Gregory Commins, and Danyll Foix authored an article for The Antitrust Review of the Americas 2016, published by Global Competition Review. The article, headlined “United States: Private Antitrust Litigation,” analyzes emerging cases in the wake of North Carolina State Board of Dental Examiners v. Federal Trade Commission. These cases, … Continue Reading

Antitrust, Appointments and Presidential Front-Runners: Part 1

By Carl Hittinger and Julian Perlman on June 6, 2016 Posted in Antitrust & Politics, Articles

Substantial and substantive issues of national importance are often obscured by the usual myopic and frenzied focus on political talking points, sensational sound bites and collateral name-calling. This is perhaps better exemplified in presidential elections than contests for other political offices. The current race to the presidency is plainly setting a new high (or low) … Continue Reading