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

  • Two District Courts Address Challenges to EpiPen Manufacturer Rebates Recent decisions in two different antitrust cases (found here and here) involving price increases and marketing practices for the EpiPen address a relationship solidly embedded in the current architecture of pharmaceutical drug markets: payments between manufacturers and pharmacy benefit managers (“PBMs”) hired by health plans to manage prescription drug programs.  These new rulings suggest that while certain manufacturer rebates have come under increased scrutiny in recent years, the standard industry practice remains on firm footing. In general, health plans hire PBMs... More
  • Staples Announces Plans to Purchase Office Depot: Will Its Third Attempt Be More Successful? Staples’ parent company recently announced plans for an attempt to buy all outstanding stock of Office Depot’s parent company (ODP) for $2.1 billion, stating that it will pursue an all-cash tender offer in March if the parties cannot reach an agreement by then.  Staples attempted a similar purchase in 2016, which it called off after the D.C. District Court granted the FTC’s request for a preliminary injunction precluding the purchase.  We previously reported on that hearing.  ODP has indicated... More
  • Update on Patent “Aggregation” Suit Against Fortress Intel and Apple’s challenge to Fortress’s allegedly anticompetitive practice of patent “aggregation,” which we discussed previously on this blog, suffered another setback earlier this month.  The Northern District of California dismissed the plaintiffs’ first amended complaint, although it granted them leave to amend again.  Recall that last July, Judge Edward Chen dismissed (with leave to amend) Intel and Apple’s original complaint, which alleged that the investment firm Fortress, and entities it controls, “have violated antitrust laws by (1) aggregating... More
  • The FTC Sues Endo and Impax Over Opana ER Agreement . . . Again Stop me if you’ve heard this one before: the FTC is suing pharmaceutical manufacturers Endo and Impax over an alleged “reverse payment” agreement to reduce competition in the market for Opana ER, an oxymorphone extended release product.  In fact, the FTC’s complaint follows quickly on the heels of the Commission’s decision that a 2010 agreement between the same manufacturers to settle Impax’s patent litigation against Endo for a $112 million payment constituted an illicit “reverse payment” that delayed the entry... More
  • What’s Ahead in 2021 for Reverse-Payment Settlement Litigation Litigation concerning reverse-payment settlements remains active. In the coming year, we expect to see material developments regarding treatment of non-monetary settlements of underlying patent litigation, as courts continue to grapple with what constitutes a “large and unjustified” payment. Likewise, we expect further insights regarding the admissibility of expert opinions concerning the likelihood of success of the underlying patent litigation.  Read our recent article on this subject here.... More
  • Major Development in BCBS Association Antitrust Litigation Antitrust litigation has been ongoing for several years in the U.S. District Court for the Northern District of Alabama against one of the biggest business associations in America, the Blue Cross Blue Shield Association (“BCBSA”) and its members.  We previously wrote about this litigation here and here.  BCBSA is comprised of independent health insurers that license the “Blue Cross” and “Blue Shield” trademarks from BCBSA.  As a condition of their licenses, BCBSA members grant each member exclusive geographic territories where... More
  • Does HHS’s Elimination of the Safe Harbor for Manufacturer Rebates Leave Manufacturers with Increased Antitrust Risk? On November 20, 2020, the U.S. Department of Health & Human Services (HHS) finalized a rule to take effect in 2022, which eliminates the safe harbor under the federal anti-kickback statute for manufacturer rebates to Medicare Part D plan sponsors.  Under the current statutory scheme, drug manufacturers may negotiate rebates with providers of pharmacy benefits—either directly or through a pharmacy benefit manager (PBM)—in exchange for preferential placement or avoiding being disadvantaged on a PBM’s or provider’s drug formulary.  The safe... More
  • 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