Antitrust Update Blog

Antitrust Update Blog is a source of insights, information and analysis on criminal and civil antitrust and competition-related issues. Patterson Belknapā€™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.

Recent Blog Posts

  • 2019 Pharmaceutical Antitrust Round-Up: A Year in Pay for Delay [Part 2] Yesterday we discussed 2019’s most significant developments in challenges to reverse-payment settlements.  Today we continue our analysis of recent trends in pharmaceutical antitrust actions with a discussion of cases addressing class certification requirements in the reverse-payment context. Class Certification Rulings Courts in 2019 addressed Rule 23(b)(3)’s predominance requirement in connection with class damages in antitrust class actions.  Two courts permitted plaintiffs to proceed with class-wide aggregate damage models that allow broad variations in drug pricing for direct purchasers, but a... More
  • 2019 Pharmaceutical Antitrust Round-Up: A Year in Pay for Delay [Part 1] 2019 witnessed a number of developments in challenges to reverse-payment settlements.  In its first decision on a pay-for-delay settlement since the Supreme Court’s seminal 2013 decision in FTC v. Actavis, the FTC took an aggressive approach to evaluating a plausible restraint on trade and analyzing proffered procompetitive benefits, reversing the ALJ who heard the case.  In the Southern District of New York, an attempt by direct purchasers to plead a conspiracy arising out patent-infringement settlements without an alleged reverse payment... More
  • Update: DOJ Announces It Will Move to Lower the Curtain on 70-Year-Old Paramount Consent Decrees Last October, we discussed the Department of Justice’s announcement that it would be revisiting the 1948 Paramount Consent Decrees, a series of movie-studio concessions and divestments resulting from a landmark antitrust prosecution, United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948).  Among other things, those decrees held unlawful the then-existing vertical integration of production studios, distributors, and exhibitors (i.e., theaters) and held various prevailing practices—“block booking” (bundling movie licenses and strong-arming theaters into accepting all of a studio’s movies);... More
  • Classes Certified in In re Suboxone “Product-Hopping” Case Recently, Judge Goldberg in the Eastern District of Pennsylvania certified two classes of plaintiffs asserting antitrust claims based on alleged “product hopping” by the manufacturer of branded tablets treating opioid addiction.  In re: Suboxone (Buprenorphine Hydrochloride and Nalaxone) Antitrust Litig., 13-md-2445, 2019 U.S. Dist. LEXIS 166524 (E.D. Pa. Sept. 26, 2019).  While declining to certify a class of end payors seeking injunctive relief, the court nevertheless certified  (1)  a damages class of direct purchasers of Suboxone tablets under Rule 23(b)(3)... More
  • Second Circuit Denies En Banc Review, Entrenches Circuit Split in Liquor Law Challenge In February 2019, the Second Circuit held that Connecticut’s “post-and-hold” alcohol pricing statute is not preempted by Section 1 of the Sherman Act. In September 2019, following a petition for en banc review, the Second Circuit declined to reconsider the panel’s decision. In a vigorous dissent from the decision declining en banc review, Judge Sullivan – joined by Judges Cabranes, Livingston, and Park – criticized the decision for “perpetuat[ing] a longstanding circuit split and continu[ing] to allow de facto state-sanctioned cartels of... More
  • New Investigations of Large Tech Firms Reflect Continuing Influence of New Brandeisian Ideas Public discourse about antitrust law has been expanded to include a wider range of ideas about the purpose of antitrust law.  “New Brandeisians” believe that the consumer welfare standard, which prioritizes end-user prices over most other considerations, does not account for all the harms caused by a lack of competitive markets.  They contend that this standard is particularly ill-suited for policing the large technology companies that dominate their markets.  As previously discussed here and here and here, certain American regulators,... More
  • Congress, Regulators, and Justice Department Gear Up to Investigate “Big Tech,” But Focus and Scope Under Current Law Remains Unclear U.S. lawmakers, regulators, and agencies charged with antitrust oversight have long been criticized for failing to act on alleged anticompetitive activity by the world’s largest technology companies—the so-called “Big Four” of Google, Facebook, Amazon, and Apple.  This year, however, government interest in oversight has spiked: In February the Federal Trade Commission launched a task force to monitor competition in technology markets and review past mergers, and the FTC and U.S. Department of Justice have reportedly reached an agreement to split... More
  • Evolving Antitrust Principles in the Age of Big Tech: Supreme Court Allows Antitrust Suit to Move Forward Against Apple In a recent decision decided on May 13, 2019, the Supreme Court allowed an antitrust suit to move forward against Apple.  Consumers brought suit based on Apple’s operation of its App Store – which serves as the exclusive electronic marketplace through which iPhone owners may purchase iPhone applications (“apps”).  Independent app developers create these apps, and then contract with Apple in order to make the apps available for purchase to iPhone owners in the App Store.  Apple allows app developers... More
  • In Long-Awaited Opinion, Court Rules That Keurig Must Face Antitrust Suits by Competitors and Customers In a recently unsealed opinion, U.S. District Judge Broderick (S.D.N.Y.) explained his reasoning for allowing a consolidated antitrust suit to proceed against Keurig Green Mountain, Inc. and its affiliates, the makers of single serve brewer machines and compatible single serve coffee packets, “K-Cups.”  As discussed below, the case may influence future cases involving exclusive licensing agreements and allegedly false marketing tactics. In 2014, two competing coffeemakers—Rogers Family Co. and TreeHouse Foods, Inc.—alleged that Keurig’s anticompetitive conduct had excluded them from... More
  • Update: NCAA Loses in Suit Challenging Student-Athlete Compensation and Benefit Limits, Prepares for Appeal Last year we wrote about the summary judgment decision in an MDL class action then pending in the U.S. District Court for the Central District of California, In re NCAA Athletic Grant-In-Aid Cap Antitrust Litigation.  The suit against the National Collegiate Athletic Association and eleven member athletic conferences is a challenge by the plaintiffs (men’s football, men’s basketball, and women’s basketball student-athletes) to the NCAA’s student athlete compensation-cap rules as a violation of Section One of the Sherman Antitrust Act.  In... More