March 28, 2016

The Antitrust Week In Review

Here are some of the developments in antitrust news this past week that we found interesting and are following.

EU stops Halliburton, Baker Hughes deal probe again, wants more info.  Oilfield services provider Halliburton Co.’s plan to acquire smaller rival Baker Hughes is facing additional delay after European Union antitrust regulators halted their investigation into the $35 billion deal for the second time.  According to the European Commission, the companies have yet to provide an important piece of information.  “Once the missing information is supplied by the parties, the clock is re-started and the deadline for the Commission’s decision is then adjusted accordingly,” Commission spokesman Ricardo Cardoso said in an email.

Judge Approves Sale of 2 Southern California Newspapers.  A federal bankruptcy judge has approved Digital First Media’s $52.3 million purchase of the Orange County Register and another Southern California newspaper after antitrust concerns scuttled plans for Tribune Publishing Co. to purchase the papers.  Freedom Communications decided to sell the Register and Press-Enterprise of Riverside to Digital First after another judge blocked a higher bid by the owner of the Los Angeles Times.  The transaction would give Denver-based Digital First, which publishes the Los Angeles Daily News, 11 daily newspapers and more than a dozen community weeklies in the greater Los Angeles area.

6th Circuit revives hospital antitrust action.  Four Ohio hospitals and a financial-management company participating in a joint operating agreement do not constitute a single entity immune to claims that they conspired to keep a fifth hospital out of their market, a divided federal appeals court has held.  The 2-1 decision by the Sixth Circuit Court of Appeals revived an antitrust lawsuit filed in 2012 by the Medical Center at Elizabeth Place against Premier Health Partners and its four member hospitals in the Dayton, Ohio area.

Judge dismisses ex-LA Clippers owner Sterling’s lawsuit vs NBA.  A federal judge has dismissed former Los Angeles Clippers owner Donald Sterling’s lawsuit accusing the National Basketball Association of violating antitrust laws in forcing him to sell the franchise in 2014.  U.S. District Judge Fernando Olguin in Los Angeles ruled that he was “skeptical that Sterling suffered any injury at all, let alone an antitrust injury,” given the record $2 billion price that former Microsoft Corp Chief Executive Steve Ballmer paid for the Clippers.  Sterling had sued in May 2014, after the league banned him for life following racist remarks he had made in a conversation recorded secretly by his girlfriend, V. Stiviano.

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Categories: Antitrust Enforcement, Antitrust Litigation

    March 21, 2016

    The Antitrust Week In Review

    Here are some of the developments in antitrust news this past week that we found interesting and are following.

    EU may investigate online content providers over cross-border trade.  European antitrust regulators are poised to investigate allegations that two out of three online content providers may be blocking consumers in another EU country from buying their products or services.  The findings by the European Commission came after a year-long investigation into barriers to cross-border trade in electronics, clothing, shoes and digital content in the 28-country bloc during which it surveyed more than 1,400 companies on their business practices.  The EU competition authority said 68 percent of providers of digital content, such as TV shows, films, music and sports, block consumers located in other EU countries, a practice known as geoblocking.

    Freedom picks Digital First Media to buy O.C. Register, Tribune Publishing’s bid rejected.  Freedom Communications has chosen Digital First Media to buy its two newspapers because it no longer believes Tribune Publishing can close the deal, according to an attorney for the bankrupt company.  The Los Angeles Times owner had been the top bidder, but its $56-million cash offer to buy the Orange County Register and Riverside Press-Enterprise hit a roadblock late Friday when a U.S. District Court judge approved a temporary restraining order to stop the sale.   The U.S. Department of Justice sought a restraining order just hours after Tribune was named the top choice, citing antitrust concerns that the sale would harm competition and allow Tribune, which also owns the San Diego Union-Tribune, to raise prices to advertisers and subscribers in Orange and Riverside counties.

    EU regulators say antitrust exemption for insurers not needed.  A six-year scheme which exempts insurers from antitrust rules under certain conditions is no longer necessary, European Union regulators said on Thursday, following a two-year review.  Adopted in April 2010, the insurance block exemption regulation sets out the conditions under which insurers can exchange information on specific risks without running foul of the EU’s strict competition rules.  The European Commission said the system may not be required any more as a study showed fewer than 50 institutionalized pools may be covered by the exemption.

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    Categories: Antitrust Enforcement, Antitrust Litigation, International Competition Issues

      March 14, 2016

      The Antitrust Week In Review

      Here are some of the developments in antitrust news this past week that we found interesting and are following.

      EU Watchdog Could Expand Criteria to Initiate Merger Reviews.  European Union antitrust regulators are considering expanding the criteria that requires companies to seek merger approval in an effort to ensure deals involving start-ups producing key data or products do not slip through the net.  Under current rules, the European Commission only examines deals involving companies that exceed a minimum revenue threshold, meaning that some businesses have escaped scrutiny from the EU watchdog.  For example, Facebook’s $19 billion bid for mobile messaging start-up WhatsApp was not examined by the EU competition authority until the case was referred to it by national antitrust agencies two years ago.

      Supreme Court Declines to Hear Apple’s Appeal in E-Book Pricing Case.  The Supreme Court has refused to review an appeals court’s determination that Apple conspired with book publishers to raise the prices of digital books.  The court’s order puts into effect a $450 million settlement that Apple had agreed to pay if it lost the case.  E-book buyers will receive $400 million in cash and credits, and lawyers involved in the case will get $50 million.

      Merger ‘Tsunami’ Taxes Resources of U.S. Antitrust Regulators.  U.S. antitrust enforcers are dealing with a “tsunami” of high-value, complicated mergers that have stretched their resources, according to the heads of the U.S. Justice Department’s Antitrust Division and the Federal Trade Commission.  Some of the increased volume of mergers has been attributed to investors who have reacted to the improving economy.

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      Categories: Antitrust Litigation, International Competition Issues

        February 29, 2016

        The Antitrust Week In Review

        Here are some of the developments in antitrust news this past week that we found interesting and are following.

        Dow Chemical settles price-fixing case after Justice Scalia’s death. Dow Chemical has agreed to pay $835 million to settle a decade-long lawsuit on price fixing, saying that the death of Justice Antonin Scalia lessened its chances of overturning the verdict at the Supreme Court.  Dow, which is in the process of merging with Dupont, said on Friday that it decided to settle, without admitting any wrongdoing, citing “growing political uncertainties due to recent events within the Supreme Court.”  Dow had filed a petition in the Supreme Court arguing that a 2013 class-action judgment that Dow had conspired to artificially inflate polyurethane prices violated class action law in multiple ways, particularly with respect to two rulings authored by Justice Scalia, one in 2011 favoring Wal-Mart Stores and another in 2013 favoring Comcast.

        Honeywell Persists in Pursuit of United Technologies. Honeywell has made clear that it is not walking away from its proposed takeover of United Technologies, as a potential battle between the industrial giants became more public on Friday.  In publishing an 11-page pitch to United Technologies on the merits of a merger, Honeywell sought to sway shareholders of its competitor.  Later on Friday, United Technologies issued its latest rebuttal, again contending that a merger of the two—which would yield a nearly $160 billion conglomerate whose offerings run from building cooling systems to advanced jet engines—would never survive antitrust scrutiny.

        EU halts Halliburton, Baker Hughes deal review, awaits details. European Union antitrust regulators have halted their scrutiny of U.S. oilfield services provider Halliburton’s proposed takeover of Baker Hughes because the companies failed to provide some details of the $35 billion deal.  “This is a standard procedure on merger investigations which is activated if the notifying parties do not provide an important piece of information that the Commission has requested from them,” European Commission spokesman Ricardo Cardoso stated.  The EU competition authority will set a new deadline for its decision when it has the required information from the companies.  Antitrust regulators are worried that higher prices and less innovation may follow the proposed merger.

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        Categories: Antitrust and Price Fixing, Antitrust Litigation, International Competition Issues

          February 25, 2016

          First Circuit Boosts Antitrust Challenges To Pay-For-Delay Settlements By Finding Non-Cash Deals Subject To Actavis Scrutiny

          By Rosa M. Morales

          Antitrust challenges to so-called “pay-for-delay” settlements—in which brand-name drug makers temporarily keep generics out of the market by making payments to would-be competitors—got a booster shot this week with a big victory in the U.S. Court of Appeals for the First Circuit.

          The First Circuit held on Monday that even when pay-for-delay settlements do not involve any cash payments, plaintiffs can still challenge those agreements as anticompetitive under the Supreme Court’s landmark decision in FTC v. Actavis, 133 S. Ct. 2223 (2013).  The First Circuit held in In re Loestrin 24 Fe Antitrust Litig., Nos. 14-2071, 15-1250 (1st Cir. Feb. 22, 2016), that the Actavis decision—which permits antitrust challenges to reverse-payment settlements that keep would-be generic competitors out of the market, even if the brand-name drug company holds a patent—is  not limited to agreements for cash payments.

          The First Circuit’s decision revived multi-district, direct-purchaser and end-payor class actions brought against drug manufacturers Warner Chilcott, Watson Pharmaceuticals, Inc., and Lupin Pharmaceuticals, Inc., which were consolidated in the U.S. District Court for the District of Rhode Island.  The district court had dismissed claims alleging that the drug makers conspired to delay generic competition of Warner’s blockbuster oral contraceptive drug, Loestrin 24 Fe®, by striking a series of non-cash reverse-payment agreements to settle patent infringement suits, in violation of Section 1 of the Sherman Act, 15 U.S.C. §1.  The First Circuit rejected the district court’s limited reading of Actavis as excluding non-cash payments, vacated that decision, and remanded the case back to district court.

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          Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

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