Antitrust Update Blog

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

  • Searching for Causation in ACTOS Complaint How explicitly must a complaint sounding in antitrust allege causation?  At oral argument last week, the Court of Appeals for the Second Circuit evaluated the sufficiency of the plaintiffs’ allegations that certain Takeda entities, in their representations to the FDA, falsely described patents for the antidiabetic drug ACTOS in order to delay the entry of generic competitors into the market—specifically, whether the plaintiffs had pleaded enough facts to show that these representations plausibly caused the delay. The plaintiffs are a group... More
  • Comity Over Competition in Vitamin C Antitrust Litigation Forced to choose between the competing concerns of international comity and United States antitrust law in In re: Vitamin C Antitrust Litigation, a unanimous panel of the Court of Appeals for the Second Circuit decided this week in favor of the former.  It held that the District Court should have abstained from asserting jurisdiction over the case on comity grounds, given that the Chinese government filed an amicus brief explaining that Defendants’ alleged anticompetitive conduct was required by Chinese law. ... More
  • Third Circuit says sunk discovery costs not a proper factor in class certification analysis It is not every day that antitrust plaintiff classes fail to win certification due to lack of numerosity under Federal Rule of Civil Procedure 23(a)(1).  Yet this week, absence of numerosity was the reason a Third Circuit panel reversed an order from the Eastern District of Pennsylvania certifying a class of 22 plaintiffs.  The putative class included direct purchasers allegedly injured by reverse-payment agreements between Cephalon and four generic manufacturers of Cephalon’s narcolepsy drug Provigil. The case is in somewhat of... More
  • Draft Legislation Streamlines and Redefines Australia’s Competition Laws On Monday, Australia’s Federal Government released new draft legislation after a panel conducted a review of Australia’s competition laws last year.  The proposed revisions consolidate power and discretion with the Australian Competition and Consumer Commission (the “Commission”) and harmonize some laws with EU competition laws. Background In 2013, the Liberal Party in Australia proposed a review of Australia’s competition policy as part of its election campaign in order “to raise Australia’s productivity levels and living standards and meet the economic challenges and... More
  • DOJ Sues to Halt Deere’s Acquisition of Monsanto’s Precision Planting The Department of Justice (“DOJ”) sued this week to stop Deere & Co.’s acquisition of Monsanto Co.’s Precision Planting, explaining that the deal would harm farmers.  The companies make high-speed precision planting systems, which allow farmers to plant uniformly spaced crops at double the speed of conventional planters.  The deal would give Deere at least 86 percent of the market for this planting technology, the DOJ said. Of particular concern to the DOJ is that Precision Planting sells a set of... More
  • Compounding Pharmacy’s Group Boycott Claim Survives Motion to Dismiss On August 23, 2016, the District Court for the Eastern District of Missouri allowed claims by a compounding pharmacy to proceed, denying a motion to dismiss filed by the defendant pharmacy benefit manager (“PBM”).  In Precision Rx Compounding LLC, et al. v. Express Scripts Holding Co., et al., No. 16-cv-0069 (E.D. Mo.), the plaintiff Precision Rx is a compounding pharmacy and the defendant, Express Scripts, is a  PBM  that contracts with health plan administrators and insurance payors to manage pharmacy... More
  • Package Size Is Not a “Service” Under Section 2(e) of the Robinson-Patman Act, Says Seventh Circuit in Clorox On August 12, the Seventh Circuit issued its decision in Woodman’s Food Market v. Clorox Co., an appeal that we have been watching closely.  The Seventh Circuit’s ruling, which held that product package size is not a promotional “service,” is an important clarification of the scope of price discrimination liability under Section 2(e) of the Robinson-Patman Act (RP Act). In this case, Woodman’s, a retail grocery store with fifteen locations in Wisconsin and Illinois, filed suit after Clorox announced it would... More
  • District Court Narrowly Defines the Relevant Market in Post-Actavis Pay-For-Delay Suit On August 8, the District of Connecticut issued a noteworthy ruling on how to approach defining the relevant market definition in a pay-for-delay suit.  In In re Aggrenox Antitrust Litigation, 3:14-md-02516 (D. Conn.), three groups of purchasers allege that Boehringer Ingelheim unlawfully paid Barr Pharmaceuticals (a business unit of generic manufacturer, Teva) to delay entry of a generic of the blood-clot medication Aggrenox.  The district court held that the relevant market in pay-for-delay litigation is “determined by the nature of... More
  • Second Circuit Weighs in on Antitrust Injury Antitrust standing is one of the most beguiling concepts in antitrust law, but it is a hurdle that a plaintiff must negotiate if its claim can proceed.  This week, the Second Circuit provided some clarity to the doctrine when it affirmed a district court decision dismissing the antitrust claims of end users of aluminum for lack of antitrust standing in In re Aluminum Warehousing Antitrust Litigation. Background Plaintiffs’ complaint, like many others involving purported industrial conspiracies, rests on complex factual allegations, but... More
  • What Might November’s Election Mean for Antitrust Enforcement? It is probably safe to say that most voters in the 2016 presidential election do not view antitrust policy as a key campaign issue.  Accordingly, the candidates’ and their parties’ views on competition policy were scarcely, if at all, mentioned during the recent party conventions.  However, the parties’ official platforms suggest how the candidates, once in office, would handle competition policy. The Democratic platform supports promoting competition and pledges to “take steps to stop corporate concentration in any industry where it... More