Tag Archives: Supreme Court

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

A Look at Judge Kavanaugh’s Antitrust Record

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on 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

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

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

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

Presidential Powers and Antitrust Politics: Part One

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on 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 Senate’s Uneventful Gorsuch Confirmation Hearing

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on 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

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on 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

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on 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

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

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

Ruling on Economic Favoritism Puts ‘NC Dental’ Back in Spotlight

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation
In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the constitutional guarantees of due process or equal protection. The court noted that such action might still violate … Continue Reading

Patent Defeats Antitrust in Latest Test at Supreme Court

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on 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

“Ain’t Wastin’ Time No More”* — Doctors, Vets, and Lawyers in the Antitrust Crosshairs

By Jonathan Lewis on Posted in Antitrust Exemptions & Immunities, Antitrust Litigation, Sherman Act 1
Supreme Court Decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission Prompts Legal Challenges to State Professional Boards Earlier this month a Texas federal district court judge granted a motion by Teladoc, Inc. (Teladoc) for a preliminary injunction enjoining the Texas Medical Board (TMB) “from taking any action to implement, enact, … Continue Reading

‘Actavis’ Still Raising More Questions Than It Answers

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Litigation, Patents
Nearly two years after the U.S. Supreme Court’s decision in Federal Trade Commission v. Actavis, 133 S. Ct. 2223 (2013), “reverse payment” settlements in patent litigation between brand-name drug manufacturers and potential generic entrants remain a hot topic in the antitrust world. At the American Bar Association’s Antitrust Law Spring Meeting, held in Washington, D.C., … Continue Reading

FTC Aggressively Pressing ‘Antitrust Trumps IP’ Theme

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on Posted in Antitrust Litigation, Articles, Patents
The Federal Trade Commission has recently brought its considerable institutional weight to bear in two developing areas at the intersection of unfair competition and intellectual property law. Continuing its crusade against “reverse-payment” patent infringement settlements in the pharmaceuticals sector, the FTC is promoting—especially in the Third Circuit—a maximalist interpretation of the U.S. Supreme Court’s 2013 … Continue Reading

BakerHostetler Antitrust Lawyer Examines Recent Developments in Antitrust Class Action Litigation

Photo of Danyll FoixBy Danyll Foix on Posted in Articles, BakerHostetler, Class Action Litigation
The Antitrust Review of the Americas 2015 features a chapter by BakerHostetler antitrust partner Edmund W. Searby entitled, “United States: Private Antitrust Litigation – Class Actions.”  He wrote: “As many appreciate, two Supreme Court decisions in the last seven years have assisted the defense of antitrust class actions.  The first and most significant is the enhancement … Continue Reading

Buckle Up—Unwinding Phoebe Putney’s Acquisition of Palmyra Down in Georgia May End Up Being Back on the Table

By Jonathan Lewis on Posted in FTC Act, Government Investigations, Healthcare, Merger Review
Almost one year ago, Federal Trade Commission (FTC) agreed to settle its antitrust challenge of Phoebe Putney Health System’s (Phoebe Putney) acquisition of Palmyra Medical Center (Palmyra) without requiring divesture or any other remedial relief. That settlement came after the FTC ran the table in the Supreme Court with a unanimous decision, and convinced a … Continue Reading

U.S. Supreme Court Decides American Express Co. v. Italian Colors Restaurant – Worth The Wait

Photo of Danyll FoixBy Danyll Foix on Posted in Alternative Dispute Resolution, Arbitration, Class Action Litigation
Editors’ Note: This post, originally authored by John Lewis and Dustin Dow and published on BakerHostetler’s Employment Class Action blog, is reprinted with permission. The U.S. Supreme Court rejected the contention that a class arbitration waiver was unenforceable under the Federal Arbitration Act (“FAA”) when the cost of arbitrating individually would be greater than any … Continue Reading

Supreme Court Rules That “Pay for Delay” Generic Drug Patent Settlements Are Not Shielded From Antitrust Liability

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Litigation, FTC Act, Healthcare, Patents
The Supreme Court has held that the antitrust laws may forbid patent settlements that delay the market entry of generic drugs in return for large payments from manufacturers of competing branded drugs.  The Court’s ruling rewarded the dogged efforts of the Federal Trade Commission to expose those settlements—which the FTC labels “pay for delay”—to antitrust … Continue Reading

Common and Predominating Damages: Comcast Opinion Extends Wal-Mart v. Dukes’ Standards for Class Certification but Leaves the Question of Daubert for Another Day

Photo of Danyll FoixBy Danyll Foix on Posted in Antitrust Litigation, Class Action Litigation, Sherman Act 1
Co-authored by: John B. Lewis, Dustin M. Dow, Patrick T. Lewis, Danyll W. Foix, and Rodger L. Eckelberry Editor’s Note: This Executive Alert was published by members of BakerHostetler’s Securities Litigation and Regulatory Enforcement Team, Employment Team, and BakerHostetler’s Class Action Team. On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, Case … Continue Reading

Supreme Court Holds Antitrust Law Applies to State Hospital Authority Transaction

By Jonathan Lewis and Lee Simowitz on Posted in Healthcare, Merger Review, Sherman Act 5, Sherman Act 7
In one of the most closely watched healthcare antitrust cases in years, the Supreme Court  issued its decision in the FTC merger challenge to a Georgia hospital merger, Phoebe Putney Health System’s acquisition of Palmyra Medical Center.  In reversing the Eleventh Circuit Court of Appeals finding that Phoebe’s acquisition of Palmyra was immune from antitrust … Continue Reading

Burn Before Reading: Hot Documents and Antitrust Claims

By Lee Simowitz on 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
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