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Antitrust Has Failed

Posted  09/22/21
By Ethan E. Litwin
By any measure, the last 40 years of U.S. antitrust enforcement has been an abject failure. Despite a statutory regime supposedly designed to protect competition and protect consumer welfare, public antitrust enforcers have failed to achieve either goal.  Responsibility for this gross dereliction of duty is decidedly non-partisan: For more than 20 years, enforcers loosely associated both political parties have...

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Rocking the Boats: Federal Government Tackles Competition in Maritime Shipping

Posted  09/21/21
By J. Wyatt Fore
The Federal government is taking a closer look at the maritime shipping industry—and for good reason. In 2000, the 10 largest shipping companies controlled just half of the world container shipping market.  Today, it’s more than 80%. As goods are increasingly manufactured in Asia and then transported to the United States, ocean carriers control a critical chokepoint.  This shift, combined with COVID-19,...

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The Antitrust Week In Review

Posted  09/20/21
Here are some of the developments in antitrust news this past week that we found interesting and are following. Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary.  The Federal Trade Commission voted to withdraw its approval of the Vertical Merger Guidelines, issued jointly with the Department of Justice (DOJ), and the FTC’s Vertical Merger Commentary. The FTC stated that the guidance...

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An Epic Fail or an Epic Win for Tech Antitrust?

Posted  09/20/21
By Ankur Kapoor
On September 10, the court issued its judgment in the trial of Epic Games, Inc. v. Apple Inc., ruling in Apple’s favor on nine out of Epic’s ten claims and on Apple’s counterclaims, but in Epic Games’ favor on its claim under California’s Unfair Competition Law.  Judge Yvonne Gonzalez Rogers’ 180-page, single-spaced findings of fact and conclusions of law are the first exposition, by a U.S. court, of...

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The Antitrust Week In Review

Posted  09/13/21
Here are some of the developments in antitrust news this past week that we found interesting and are following. U.S. lawmakers say decision in Apple/Epic fight shows need to update laws.  U.S. lawmakers determined to tighten antitrust laws said on Friday that a judge's decision giving only a partial victory to "Fortnite" creator Epic Games in its fight with Apple Inc was further evidence of the need for new laws...

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The Antitrust Week In Review

Posted  09/8/21
Here are some of the developments in antitrust news this past week that we found interesting and are following. Is it time for the class action plaintiffs’ bar to skirt the 1st Circuit?  Here’s a tip for class action defendants in New England and Puerto Rico: If you credibly threaten to turn your case into a series of mini-trials over class membership, you can probably beat class certification. That’s the...

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Supreme Court Reaffirms that Social Benefits Cannot Trump Competition Under the Sherman Act

Posted  08/31/21
By Saidah Grimes
Antitrust defendants have repeatedly failed to convince the Supreme Court it should recognize social objectives—that do not enhance competition—as defenses to restraints of trade challenged under the Rule of Reason analysis applied to most Sherman Act claims.  The Supreme Court extended that string of losses with its recent decision in NCAA v. Alston, which ruled, once again, that a defendant cannot defend...

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The Antitrust Week In Review

Posted  08/30/21
Here are some of the developments in antitrust news this past week that we found interesting and are following. FTC urges judge to unwind $7.1 bln Illumina-Grail merger.  The U.S. Federal Trade Commission on Tuesday said it seeks to unwind life science company Illumina Inc's $7.1 billion acquisition of Grail Inc, alleging it would harm innovation and boost prices. FTC senior counsel Susan Musser said in her...

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FTC Trial Seeks to Promote Competition in Cancer-Screening Tests by Unwinding Illumina-GRAIL Merger

Posted  08/30/21
By David A. Scupp
The FTC kicked off its trial challenging Illumina Inc.’s completed acquisition of GRAIL Inc. on Tuesday by urging an FTC administrative law judge to undo the $7.1 billion deal, arguing it would harm innovation and boost prices of cancer-screening tests. The FTC’s bid to unwind the merger of DNA sequencing leader Illumina and GRAIL, a biotech company focused on early cancer screenings could impact the health of...

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The FTC’s Revival of its Facebook Complaint Shows That it’s Serious

Posted  08/27/21
By Jeffrey I. Shinder, Yo W. Shiina
The FTC’s revival of its monopoly maintenance claims against Facebook demonstrates what a serious antitrust enforcer can do after an unexpected setback. As expected, the FTC has filed an Amended Complaint that adds substantial factual allegations to respond to U.S. District Court Judge James Boasberg’s order dismissing the FTC’s initial Complaint for supposedly failing to allege sufficient facts to support...

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