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Antitrust Update Blog

Antitrust Update Blog is a source of insights, information and analysis on criminal and civil antitrust and competition-related issues. Patterson Belknap’s antitrust lawyers represent clients in antitrust litigation and counseling matters, including those related to pricing, marketing, distribution, franchising, and joint ventures and other strategic alliances. We have significant experience with government civil and criminal/cartel investigations, providing the unique perspectives of former top U.S. Department of Justice Antitrust Division lawyers from both the civil and criminal sides.

Recent Blog Posts

  • DOJ and FTC provide guidance on avoiding antitrust violations in Human Resources practices The Department of Justice (DOJ) and the Federal Trade Commission (FTC) last week issued antitrust guidelines for human resources (HR) professionals.  The guidelines highlight the most common antitrust violations, based on a review of cases in which federal antitrust agencies have taken enforcement actions against employers.  There are three main takeaways from this guidance.  First, the DOJ and FTC maintain that antitrust laws apply to the employment marketplace with the same force as to other industries.  Second, the agencies state... More
  • Hospitals Considering Merger Face Increased Uncertainty PinnacleHealth System and Penn State Hershey Medical Center have abandoned their merger plans following a Third Circuit defeat last month.  The announcement underscores the uncertainty faced by hospitals considering consolidation as a way to keep costs down and promote a value-based system of payment. The Third Circuit concluded last month that the Federal Trade Commission (FTC) had met its prima facie burden of demonstrating that the merger would be anticompetitive.  This decision overturned the Middle District of Pennsylvania’s denial of the... More
  • Gold and Silver price fixing suits may be expensive for banks The Southern District of New York recently denied motions to dismiss filed by several banks that allegedly conspired to manipulate the price of gold and silver.  Only defendant UBS was successful in convincing the court that the allegations against it failed to state a plausible antitrust claim. Plaintiffs in these putative class actions are buyers of gold and silver futures and options.  It is undisputed that the banks—other than UBS—participated in a process to set prices for these two precious commodities. ... More
  • St. Louis Taxi Commission Not Immune From Uber’s Antitrust Suit As we’ve written, Uber, the popular app-based car service, has been on the antitrust defensive, facing allegations that its algorithm for calculating prices restricts price competition.  In Wallen v. St. Louis Metropolitan Taxicab Commission, No. 15-cv-01432 (E.D. Mo.), however, it’s on offense, joining forces with some of its riders and drivers in a claim that the St. Louis Metropolitan Taxicab Commission’s refusal to allow it and other ridesharing companies to operate in St. Louis is an antitrust violation.  The plaintiffs... More
  • Third Circuit Grants FTC Injunction in Penn State Hershey-Pinnacle Merger, Overruling Lower Court On September 27, the U.S. Court of Appeals for the Third Circuit handed the Federal Trade Commission a big win, overturning the Middle District of Pennsylvania’s denial of an injunction to block the proposed merger of Penn State Hershey Medical Center and PinnacleHealth System, two major healthcare providers in central Pennsylvania. As we previously covered on this blog, in May 2016, the Middle District of Pennsylvania denied the FTC’s request for a preliminary injunction to prevent the merger of Penn State Hershey... More
  • Second Circuit Issues Blockbuster Ruling in Amex, Holding Anti-Steering Rules Do Not Violate Antitrust Law Last week the U.S. Court of Appeals for the Second Circuit issued a major win for American Express in a landmark decision in United States v. American Express Co.  In that case the government filed an antitrust suit against American Express challenging Amex’s nondiscriminatory provisions (“NDPs,” or “anti-steering” rules), which bar merchants from offering discounts or incentives to customers to encourage them to use non-Amex credit cards. Amex pursued this appeal after losing before the district court.  As we have reported,... More
  • Searching for Causation in ACTOS Complaint How explicitly must a complaint sounding in antitrust allege causation?  At oral argument last week, the Court of Appeals for the Second Circuit evaluated the sufficiency of the plaintiffs’ allegations that certain Takeda entities, in their representations to the FDA, falsely described patents for the antidiabetic drug ACTOS in order to delay the entry of generic competitors into the market—specifically, whether the plaintiffs had pleaded enough facts to show that these representations plausibly caused the delay. The plaintiffs are a group... More
  • Comity Over Competition in Vitamin C Antitrust Litigation Forced to choose between the competing concerns of international comity and United States antitrust law in In re: Vitamin C Antitrust Litigation, a unanimous panel of the Court of Appeals for the Second Circuit decided this week in favor of the former.  It held that the District Court should have abstained from asserting jurisdiction over the case on comity grounds, given that the Chinese government filed an amicus brief explaining that Defendants’ alleged anticompetitive conduct was required by Chinese law. ... More
  • Third Circuit says sunk discovery costs not a proper factor in class certification analysis It is not every day that antitrust plaintiff classes fail to win certification due to lack of numerosity under Federal Rule of Civil Procedure 23(a)(1).  Yet this week, absence of numerosity was the reason a Third Circuit panel reversed an order from the Eastern District of Pennsylvania certifying a class of 22 plaintiffs.  The putative class included direct purchasers allegedly injured by reverse-payment agreements between Cephalon and four generic manufacturers of Cephalon’s narcolepsy drug Provigil. The case is in somewhat of... More
  • Draft Legislation Streamlines and Redefines Australia’s Competition Laws On Monday, Australia’s Federal Government released new draft legislation after a panel conducted a review of Australia’s competition laws last year.  The proposed revisions consolidate power and discretion with the Australian Competition and Consumer Commission (the “Commission”) and harmonize some laws with EU competition laws. Background In 2013, the Liberal Party in Australia proposed a review of Australia’s competition policy as part of its election campaign in order “to raise Australia’s productivity levels and living standards and meet the economic challenges and... More