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Antitrust Insights and Analysis

Federal Court Extends Tunney Act Review to Embrace Mini-Trial on DOJ Settlement of CVS-Aetna Merger

Posted  05/3/19
By James J. Kovacs
In a rather extraordinary move, United States District Court Judge Richard J. Leon has ordered a mini-trial to determine whether the  U.S. Department of Justice (“DOJ”) settlement green-lighting the merger of CVS Health and Aetna is in the public interest. To date, no federal court has ordered a Tunney Act hearing with testimony from various concerned non-parties.  While it remains to be seen whether the...

Plaintiffs Targeting Biologic-Biosimilars Settlements with Pay-for-Delay Antitrust Claims

Posted  04/18/19
By James J. Kovacs
Antitrust principles that can invalidate certain pay-for-delay settlements will be expanding into the new frontier of biologic and biosimilar drugs if plaintiffs in several new suits are successful. Recently-filed antitrust lawsuits against AbbVie, manufacturer of a leading biologic drug, Humira, and numerous biosimilar manufacturers are alleging that settlements between the AbbVie and various biosimilar...

Duke Settles Class Action Alleging “No-Poach” Conspiracy with UNC

Posted  04/11/19
By Ethan E. Litwin and J. Wyatt Fore -- While Duke University and the University of North Carolina (“UNC”) may be fierce sporting rivals on “Tobacco Road,” their alleged agreement not to compete for medical school faculty demonstrates how easily competing employers can find themselves ensnared in an antirust briar patch. It is now being reported that Duke has settled Seaman v. Duke University, a class...

Visa’s Proposed Acquisition of Earthport – A Good Test for Antitrust in the 21st Century

Posted  04/10/19
By Jeffrey I. Shinder
As the 2020 Presidential election begins to heat up, something unusual is happening – antitrust policy is being bandied about as an election issue.  The reason for this is simple.  We live in an era of increasing concentrations of wealth and industrial power.  While the impulse to look at antitrust as part of the solution makes perfect sense, many of the proposals on the table, including the suggestion by one...

Avoiding the Antitrust Pitfalls of No-Poach Agreements: Frequently Asked Questions and Answers

Posted  04/10/19
By J. Wyatt Fore
As federal antitrust enforcers have targeted so-called “no-poach” agreements in recent years, it has become increasingly important for employers in all industries to learn about the risks of entering into agreements that limit their competition for employees.  Here are the answers to some of the frequently asked questions about the exposure of such no-poach agreements to antitrust enforcement. We have prepared...

Constantine Cannon Marks Its First 25 Years

Posted  04/8/19
Constantine Cannon is celebrating the 25th anniversary of its founding. Constantine Cannon’s founder, Lloyd Constantine, reflected on what a fascinating quarter century it’s been for the firm and its attorneys in his personal blog, Hopelessly Liberal.  Given that the firm’s history includes many of the most notable antitrust cases of recent vintage, we are reposting Lloyd’s recap of our first 25 years in...

The Marathon Effort to Enact an Antitrust Whistleblower Statute is Still in the Race

Posted  03/21/19
Although proposed legislation to protect and to encourage antitrust whistleblowers has struggled for years to cross the finish line the U.S., there are signs this marathon effort may yet prove successful. While criminal prosecution of antitrust cartels is at the core of U.S. antitrust enforcement policy, there is a missing link in that policy.  If you are a member of an antitrust cartel, the law allows you to...

DOJ Clarifies How it Analyzes No-Poach Agreements

Posted  03/15/19
By Grant Petrosyan
Deputy Assistant Attorney General Michael Murray provided some guidance with his recent remarks at the Santa Clara University School of Law regarding the U.S. Department of Justice’s (“DOJ”) antitrust initiatives with respect to the labor sector.  As Murray discussed, the DOJ has demonstrated an increased interest in prosecuting no-poach agreements in recent years and continues to provide guidance on the...

NCAA May Have Lost Antitrust Case to Student-Athletes, But How Much Did It Really Lose?

Posted  03/13/19
By Grant Petrosyan
Friday’s 104-page ruling in the antitrust case challenging the compensation rules of the National Collegiate Athletic Association (“NCAA”) is not a clear-cut victory for either side. Although Judge Claudia Wilken of the U.S. District Court for the Northern District of California ruled in Alston V. NCAA that the NCAA and its 11 major conferences are violating antitrust law by capping the value of athletic...

Federal Courts Reject Criminal Defendants’ Attempts to Avoid Per Se Standard in Antitrust Prosecutions

Posted  03/12/19
By Harrison J. McAvoy
Antitrust enforcers have recently notched a pair of significant victories, convincing federal courts in two separate cases to reaffirm the use of the per se standard in criminal antitrust cases. Federal courts have long applied the rule that certain restrictive business practices among competitors, such as horizontal price-fixing, bid rigging, and market allocation—are per se illegal, regardless of any purported...
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