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

  • 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
  • “New Brandeis” Antitrust Concepts Hit the Campaign Trail As we discussed in a previous post, a new school of thought about antitrust law (or, rather, a new application of old antitrust principles) has received increasing attention in recent months.  The so-called “New Brandeis” approach seeks to shift the focus of antitrust law from consumer welfare alone to include the competitive structure of markets.  Recent attention to these arguments is often traced to the publication of Lina Khan’s Yale Law Journal article "Amazon's Antitrust Paradox."  (Khan, who previously served... More
  • Congress Hears Challenges to the Consumer Welfare Standard The purpose and goals of United States antitrust policy have not remained static over time.  Since 1979, the Supreme Court has focused on a “consumer welfare” theory of antitrust law.  See Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) (The floor debates “suggest that Congress designed the Sherman Act as a ‘consumer welfare prescription.’” (citation omitted)).  Under the consumer welfare standard, an act is deemed anticompetitive “only when it harms both allocative efficiency and raises the prices of goods... More
  • Judge Finds Lack of DOJ Funding No Excuse for Delay in Review of Public Comment to CVS-Aetna Merger Though the merger of CVS and Aetna received conditional approval from the DOJ’s Antitrust Division back in October, the road to final approval has been rocky as the court’s exasperation with the parties appears to grow.  Last week, Judge Richard J. Leon of the District Court for the District of Columbia ordered the Antitrust Division to respond to public comment on the merger by February 15, 2019—notwithstanding the fact that appropriations to the Antitrust Division lapsed on January 4, leaving... More
  • Applicability of State-Action Immunity to Private Parties On January 7, 2019, in Green Sols. Recycling, LLC v. Reno Disposal Co., No. 3:16-cv-00334-MMD-CBC, 2019 BL 4611 (D. Nev. Jan. 07, 2019), the District Court for the District of Nevada granted summary judgment on plaintiff’s antitrust claim in favor of defendants Reno Disposal Company, Inc. (“Reno Disposal”), and Waste Management of Nevada, Inc. (“WMON”), on the basis of the doctrine of state-action immunity.  The litigation arose out of the City of Reno’s entry into an exclusive franchise agreement with... More
  • District Judge Criticizes Pace of Aetna – CVS Merger After two hearings over the last week, Judge Richard J. Leon of the District Court for the District of Columbia seems to have put the brakes on the well-publicized merger between health care giants CVS and Aetna.  The merger obtained conditional approval from the DOJ’s Antitrust Division on October 10, 2018, and the parties seemed poised for court approval when they appeared before Judge Leon on November 29, 2018. Judge Leon had other ideas.  The court’s review of consent judgments... More
  • U.S. Supreme Court’s Decision in China Agritech May Limit The Availability of Class-Action Tolling For Litigants That File Suit Before Class Certification On June 11, 2018, the U.S. Supreme Court issued its opinion in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018).  The China Agritech decision resolved a circuit split, finding that the statute of limitations for a follow-on class action is not tolled under American Pipe.  Currently, a related circuit split exists on the question whether class action tolling is available for litigants that file opt-out lawsuits prior to a decision on class certification.  Currently, the Second Circuit... More