Archives: Sherman Act 2

Supreme Court to Decide First Antitrust Case in Two Years

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

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

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

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

Patent Defeats Antitrust in Latest Test at Supreme Court

By Carl Hittinger and Mitchell Oates on July 14, 2015 Posted in Antitrust Litigation, Patents, Sherman Act 2

In Kimble v. Marvel Entertainment, 576 U.S. ____ (2015), the U.S. Supreme Court considered whether to overturn Brulotte v. Thys, 379 U.S. 29 (1964), its 1964 decision holding that it was per se unlawful for a patent owner to charge royalties for use of a patented invention after the licensed patent has expired. In a … Continue Reading

Product Hopping and Antitrust: Mylan Court Dismisses Claims on Summary Judgment, Citing Need to Avoid Chilling Pharmaceutical Innovation

By Jeffry Duffy on May 29, 2015 Posted in Antitrust Litigation, Patents, Sherman Act 1, Sherman Act 2

A recent summary judgment opinion from the Eastern District of Pennsylvania breaks new ground in the developing antitrust law on “product hopping” claims. “Product hopping” refers to the practice of changing the form or dosage of a branded drug without changing its underlying composition. Though drug manufacturers often make such changes for legitimate business reasons, … Continue Reading

Fit to Be Tied: Appeals Court Redefines Tying Arrangements Based on Bundled Pricing

By Lee Simowitz on May 15, 2015 Posted in Antitrust Compliance, Sherman Act 2

Corporate antitrust compliance programs often spotlight the dangers of tying arrangements. Those risks arise when a seller with a dominant position in one product coerces its customers by offering that must-have product only if customers buy a second product that they don’t want (or at least would rather buy elsewhere). Tying arrangements are easy for … 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

Leave My Employees Alone! You Promised You Wouldn’t Hire/Solicit Them

By Jonathan Lewis on June 13, 2014 Posted in Antitrust Litigation, Government Investigations, Sherman Act 2

With the antitrust class action against Google, Apple, Intel and other Silicon Valley heavyweights nearly in the books ($300 million plus in settlements and millions more in defense fees later), it is time once again to ask what this settlement means for the continued use of clauses in merger and other types of agreements like … Continue Reading

Give It Back! Disgorgement – Another FTC Arrow against Reverse-Payment Settlements that Delay Generic Entry

By Jonathan Lewis on December 3, 2013 Posted in Antitrust Litigation, Healthcare, Sherman Act 2

If the uncertainty that the Supreme Court’s Actavis decision injected into the world of reverse-payment settlement litigation wasn’t enough to get your attention, then the FTC’s recent effort to obtain disgorgement from Cephalon in a reverse-payment case should do so. Cephalon is arguing that the federal district court should dismiss the FTC’s near six-year-old complaint … 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

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

Burn Before Reading: Hot Documents and Antitrust Claims

By Lee Simowitz on January 23, 2013 Posted in Discovery, Government Investigations, Merger, Sherman Act 1, Sherman Act 2

Antitrust law and economics seem like dark arts to outsiders, an impression that antitrust lawyers are none too eager to dispel. But everyone can appreciate a smoking gun document that seems to brand its author as a hardened violator of the antitrust laws. Consider the memorandum written by a large waste-disposal company about a small … Continue Reading