Yesterday, Staples closed its defense in the case brought by the Federal Trade Commission (FTC) to block the Staples-Office Depot merger—without calling any witnesses.  Judge Emmet Sullivan of the D.C. District Court stated that he “did not anticipate” this unusual move by Staples.  The CEOs of both Staples and Office Depot were slated to testify; instead, Judge Sullivan began hearing closing arguments.

    Today the FTC filed a complaint in the U.S. District Court for the Eastern District of Pennsylvania against Endo Pharmaceuticals for entering into “pay-for-delay” agreements with two different generic manufacturers that restricted generic competition for two of its patented drugs, Opana ER and Lidoderm.  The FTC alleges that Endo paid Impax, a generic drug manufacturer, $40 million to keep a generic version of Opana ER off the market for over 2 years, and that Endo and its partner Teikoku gave Watson (now Allergan) Lidoderm patches worth hundreds of millions of dollars “at no cost” for Watson to sell through its distribution subsidiary in exchange for abandoning its patent challenge.

On March 18, 2016, the Second Circuit Court of Appeals affirmed the dismissal of an antitrust lawsuit brought by the prospective developers of a racing track and casino in the Catskills region of New York against their one-time collaborators in the venture.  In Concord Assocs. v. Entm’t Props. Tr., 2d Cir., No. 13-3933-cv, the appellate court dismissed the complaint without leave to amend because the plaintiffs’ case had a fatal flaw: there is nothing special about the Catskills that renders the region a unique geographic market to people nearby who want to gamble.

Minnesota Timberwolves season ticket holders unhappy with the team’s 20-45 record and hoping to resell their tickets have filed a putative class-action lawsuit over the team’s “draconian” ticketing policy.

Direct and indirect purchasers of Nexium recently appealed District of Massachusetts Judge William Young’s denial of a request for a new trial in In re: Nexium to the First Circuit.

We’ve previously written about how the Yates Memo announced an increased focus on individual accountability, and that the DOJ’s broader focus on individual accountability would likely encourage the Antitrust Division to increase its efforts to prosecute individuals for antitrust violations.

Generic drug manufacturers have come under scrutiny from state and federal regulators for recent generic drug price hikes.  These investigations have expanded to include Turing Pharmaceuticals and its former CEO, Martin Shkreli.

New York Attorney General Eric Schneiderman is reportedly investigating the National Football League for antitrust violations in connection with its imposition of “price floors” on tickets for resale.  In a 40-page report released last week, the NYAG’s office outlined numerous concerns about the market for event tickets.  Among those concerns is the practice, by some NFL teams and the New York Yankees, of imposing minimum pricing requirements (typically prohibiting sale for less than face value) on their “official” online resale platforms.  According to the NYAG, such “price floors” make it “easy for buyers to be fooled into believing what they are paying is the market price for a ticket, when in fact the buyer is paying a price artificially inflated by a price floor.”

We’ve previously written about litigation involving the scope of Major League Baseball’s long-standing antitrust exemption.  Earlier this week, on the eve of trial, MLB settled Garber v. Office of the Commissioner of Baseball, a class action lawsuit challenging its territorial broadcasting policy.  The lead plaintiff Marc Lerner is a Mississippi resident and New York Yankee fan who was allegedly charged supracompetitive prices to watch the Yankees due to MLB’s territorial broadcast policies.  Under MLB’s policy of territorially restricting television broadcasts, consumers could only watch “out-of-market” games subject to certain limitations, including a requirement to purchase every out-of-market game, even if the consumer was only interested in following a single team.  By avoiding the bench trial, MLB avoided having to further litigate the scope of its unique “antitrust exemption” in front of Judge Scheindlin of the U.S. District Court for the Southern District of New York, who had previously expressed skepticism about the continuing viability of the exemption.

On January 12, 2016, Judge Engelmayer of the Southern District of New York dismissed a lawsuit against JP Morgan which alleged the bank (and some of its subsidiaries) monopolized silver futures spread trading in late 2010 and early 2011.  

A settlement agreement last week in the long-running U.S. Cargo Antitrust Class Action brought the settlement fund in that case to over $1.1. billion. Polar Air Cargo, Polar Air Cargo Worldwide, and Atlas Air Worldwide Holdings agreed to pay $100 million in three installments. The settlement is the second-largest so far in this case, after Korean Air Lines's agreement in December 2013 to pay $115 million. It is subject to approval by the U.S. District Court for the Eastern District of New York, where the case is pending.

On December 14, 2015 Judge Yvonne Gonzalez Rogers heard oral argument on a motion to dismiss filed by Apple in an antitrust action brought against the company in connection with its 2007 deal to sell iPhones exclusively to AT&T Mobility.  The next day, Judge Rogers denied Apple’s motion.  The lawsuit, one of several arising from the Apple-AT&T agreement, raises interesting questions about how to define a relevant product market using an “aftermarket” theory. 

In yet another high-profile enforcement action, last week EU Competition Commissioner Margrethe Vestager announced charges against Qualcomm Inc., a world leader in 3G, 4G, and next-generation wireless technologies and the world’s largest supplier of baseband chipsets, for allegedly abusing its dominant position in the baseband chipset market.  The Commission preliminarily concluded that Qualcomm illegally paid a major customer to exclusively use Qualcomm chipsets, and also engaged in predatory pricing by selling chipsets below cost with the aim of forcing a competitor out of the market.  

On November 25, 2015, the Court of Appeals for the Fifth Circuit affirmed the $156 million antitrust judgment in MM Steel, L.P. v. JSW Steel (USA) Incorporated; Nucor Corporation, upholding a jury verdict that found one defendant steel manufacturer (JSW Steel) liable for participation in an illegal conspiracy to block distributor MM Steel from entering the market.  The Court of Appeals reversed the jury verdict as to defendant Nucor, another steel manufacturer.  In so doing, the Fifth Circuit identified evidence that does—and does not—tend to exclude the possibility of independent conduct for purposes of finding a violation of § 1 of the Sherman Act.  The court also underscored that per se liability (and not the rule of reason) attaches to horizontal conspirators’ use of vertical agreements to shut competitors out of the market.

On November 17, 2015, the FTC submitted an amicus brief to the Third Circuit Court of Appeals in In re Effexor XR Antitrust Litigation, where the district court had dismissed the plaintiffs’ claims of antitrust violations based on an alleged reverse payment under FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013). In its brief, the FTC argues that its failure to object to a pharmaceutical patent settlement should play no role whatsoever in evaluating the legality of alleged reverse payments, and urged the Third Circuit to reverse the district court’s decision to the extent it relied on such considerations.

As we previously reported (click here, to read more), last month, a jury returned a $6 million verdict for a class plaintiff in a suit alleging that Cox Communications had illegally tied its premium cable services to rentals of its set-top boxes.  Yesterday, the court granted Cox’s renewed motion for judgment as a matter of law, overturned the jury’s verdict, and entered judgment for Cox.

Last week the Federal Trade Commission, in an amicus brief before the Seventh Circuit in Woodman’s Food Market, Inc. v. Clorox Co., rejected two decades-old FTC decisions applying Section 2(e) of the Robinson-Patman Act.

We reported earlier today that the jury began deliberations this past Monday in the antitrust class action lawsuit against Cox Communications brought by its premium services subscribers.  The jury returned its verdict today in favor of the plaintiffs and found that Cox had violated the Sherman Act by illegally tying its premium cable services to rentals of its set-top boxes.  The jury awarded the plaintiffs $6.31 million in damages, which will be trebled to $19 million.  The jury awarded damages based on one aspect of the plaintiffs’ claims for fees from set-top box rentals but declined to award damages based on the plaintiffs’ DVR fees.  Thus, the damages award came back much lower than the $49 million figure the plaintiffs were seeking.

Earlier this year, we covered the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. FTC, which held that a state regulatory board composed of “active market participants” was not immune to federal antitrust laws unless the state “actively supervised” the board.  We noted that the Court left open what level of active supervision would be required for a state board to enjoy antitrust immunity.

Trial is set for October 13th on an antitrust class action lawsuit alleging that Cox Communications used its monopoly power over premium cable services in Oklahoma City to force consumers to rent its set-top box.  The trial will be conducted before Judge Robin J. Cauthron of the Western District of Oklahoma.  The plaintiff, Richard Healy, is seeking nearly $49 million in damages on behalf of Oklahoma City cable subscribers who paid Cox to rent a set-top box from February 1, 2005 through January 9, 2014. 

On September 23, the Hong Kong Competition Commission (HKCC) released a draft of its “Leniency Policy for Undertakings Engaged in Cartel Conduct.”  The draft specifies when the HKCC will refrain from pursuing monetary penalties against an entity in exchange for that entity’s cooperation.  The HKCC was created when Hong Kong’s Legislative Council passed a competition ordinance in 2012.  The Competition Ordinance applies to any agreement that has the object or effect of preventing, restricting, or distorting competition in Hong Kong, even if the parties and concerted activity are outside of Hong Kong.  Over the past three years, the HKCC has slowly released guidelines related to the implementation of the Ordinance.  With the release of the leniency policy, the HKCC is on track to begin enforcing the Competition Ordinance in mid-December 2015.

Earlier this month, Apple signaled its intention to petition for writ of certiorari after the Second Circuit upheld Judge Cote’s decision to apply per se liability in analyzing the firm’s conduct with respect to e-books in United States v. Apple Inc.  We have previously reported on the decisions below where both the Second Circuit and the Southern District of New York concluded that per se liability applies because, even though Apple’s contracts with publishers were vertical agreements (and thus would usually require the rule of reason analysis per the Supreme Court’s Leegin decision), Apple’s organization of competing e-book  publishers to raise e-book prices created a horizontal agreement.

Last week, a divided three-judge panel of the Fourth Circuit issued a significant decision in a boycott conspiracy case, SD3, LLC v. Black & Decker, No. 14-1746 (4th Cir. Sept. 15, 2015).  The suit, at its heart, turns on the interpretation of the Twombly plausibility standard and the application of the Supreme Court’s precedent on pleading standards to antitrust actions at early stages of litigation.

The FTC’s Bureau of Competition recently issued new “Best Practices” guidance for parties involved in merger investigations.  This is the Commission’s first guidance on the merger review process since the Merger Process Reforms were issued in 2006.  As the Commission explains, it issued the updated guidance because parties rarely have been invoking the Merger Process Reforms and also have been relying on the “withdraw and refile” process in the initial review period of Hart-Scott-Rodino filings. 

Last week, we discussed public reports of an investigation by the DOJ of four major airlines (American, Delta, Southwest, and United) regarding possible collusion. Over the past two months, a number of consumers have filed class action complaints against the airlines, putting forward their own theories regarding collusion.