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

  • District Court Rejects Intel’s Claims, but Leaves Door Open to Patent “Aggregation” Theories of Antitrust Liability Last month, we wrote a post on the patent “aggregation” suit Intel had filed against various entities affiliated with the investment firm Fortress.  The post was timely; the next day, Judge Chen granted Fortress’s motion to dismiss with prejudice and entered judgment for the defendants.  The opinion dismissing the action was sealed until October 7. The first issue the court decided in the newly unsealed opinion was whether Intel pled plausible product markets.  The court found that the product markets described... More
  • Another Update on the Patent “Aggregation” Suit Against Fortress There have been several developments since we last wrote about Intel and Apple’s suit against Fortress and several of its so-called “patent assertion entities” (collectively, “Fortress”) based on the allegedly anticompetitive practice of patent “aggregation.”  Recall that the plaintiffs’ first amended complaint was dismissed without prejudice in January 2021 because Judge Chen of the U.S. District Court for the Northern District of California found that certain of the alleged product markets were too broad and that the complaint lacked adequate... More
  • Firm Attorneys Author “Trends in Class Certification” Chapter in GCR’s US Courts Annual Review The past decade has witnessed significant development in class action certification standards in the antitrust context, and the past year has been no exception. Questions of predominance continue to be at the forefront, although the numerosity requirement has also been put to the test. This chapter places these issues of class certification in context by tracing the standards of certification and discussing the evolution of the ‘rigorous analysis’ requirement now required by federal courts. It then spotlights notable decisions from... More
  • Fourth Circuit Door War Leaves Groundbreaking Divestiture Order Intact The Supreme Court is the only avenue left for JELD-WEN Inc. after the Fourth Circuit denied the door manufacturer’s motion for rehearing en banc of a panel’s decision in Steves & Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690 (4th Cir. 2021), to affirm an order directing JELD-WEN to sell a plant it acquired in 2012.  That leaves intact a District Court’s divestiture order—a remedy typically obtained only by government entities—in a suit brought by a “private attorney general” pursuant... More
  • Fourth Circuit Affirms Local Government Antitrust Immunity for Atrium Health The Fourth Circuit ruled last month that the Charlotte-Mecklenburg Hospital Authority, which does business as Atrium Health, is immune from antitrust damages as a “special function governmental unit” under the Local Government Antitrust Act of 1984 (the “Act”).  The decision in Benitez v. Charlotte-Mecklenburg Hospital Authority clarifies the scope of local government antitrust immunity and confirms that mere growth of an organization beyond local borders does not prevent it from continuing to enjoy antitrust immunity as a “local government.” Background... More
  • Fifth Circuit Impax Decision Validates FTC’s Post-Actavis Approach to Reverse Payments On April 13, 2021, the Court of Appeals for the Fifth Circuit issued its long-anticipated decision in Impax v. FTC, marking the first time an appellate court has weighed in on the merits of a so-called reverse payment case prosecuted by the Federal Trade Commission (“FTC”) since the Supreme Court’s Actavis decision in 2013.  The case resulted in a validation of the FTC’s approach to policing reverse payment agreements.  Specifically, the Court affirmed the Commission’s conclusions that (1) large, unjustified... More
  • 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