Antitrust Update Blog

http://www.antitrustupdateblog.com/

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

  • Antitrust Plaintiffs Complain of Patent “Thickets” For years, antitrust commentators have warned of threats to innovation and competition posed by “thickets” of patents—the “dense web[s] of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology.”  See Carl Shapiro, “Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting” (March 2001), available at https://www.nber.org/chapters/c10778.pdf. At least one judge on the Federal Circuit has also noted concern about this issue.  E.g. Intellectual Ventures I LLC v. Symantec Corp.,... More
  • Impax Oral Argument at Fifth Circuit Reveals Thorny Issues and Uncertain Outcome On June 9, the United States Court of Appeals for the Fifth Circuit heard oral argument in Impax Laboratories, Inc., Etc. v. Federal Trade Commission.  The appeal by pharmaceutical manufacturer Impax marks the first time a court will review the Federal Trade Commission’s (“FTC”) interpretation of the Supreme Court’s watershed decision on reverse payment settlements, FTC v. Actavis, 570 U.S. 136 (2013). Reversing the decision of the ALJ who presided over the administrative trial, the FTC concluded that Impax... More
  • The Democratic Presidential Candidates and Antitrust With the Democratic primary process in full swing, we thought it fitting to take a look at where the candidates stand with respect to antitrust issues.  As it turns out, this is a fairly active election cycle for antitrust, with most Democratic candidates invoking antitrust laws (and proposed laws) in connection with their visions for the future.  The increased focus on antitrust has not been lost on other observers. Perhaps the candidate most explicitly focused on the nuts and bolts... More
  • The New Brandeis School Manifesto As this blog has previously reported, new strains of thought about antitrust law are blossoming in the United States.  The “New Brandeisians” challenge the Chicago School “consumer welfare” standard that has dominated policymaking for decades.  They assert that the authors of the statutes that form the backbone of American antitrust law were primarily focused on the manifold danger of concentrated market power beyond simply the economic effects on the ultimate consumer. As their critiques have gained more attention, so have... More
  • 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