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A Weakened Firm Defense Can Be Strong If The Competitive Threat Is Weak

Posted  07/7/09
Just how weak does a company have to be to rely on a weakened firm defense in a merger analysis?  While the case law is sparse, courts have found such a defense compelling when one of the parties to a merger has been too weak to be a competitive threat.

In United States v. General Dynamics Corp., 415 U.S. 486 (1974), the Supreme Court approved a merger between coal producers who together had a high market share in a...

A Five-Year Anniversary For A Major Standard-Setting Antitrust Law

Posted  06/24/09
Five years ago this month, a new federal law aimed at encouraging standard-setting activities took effect – the Standards Development Organization Advancement Act (SDOAA) of 2004.  Why did Congress pass it?  And five years later, how has it fared? In many industries, non-profit “standards development organizations” (SDOs) collaborate with businesses to develop industry-wide standards – from common light...

Think Indirect Purchaser Liability is Dead? Think Again.

Posted  06/22/09
Since the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, plaintiffs have not been able to recover damages suffered by indirect purchasers from anticompetitive conduct stemming from §1 of the Sherman Act.  While this bar has existed for more than 30 years, plaintiffs are not without recourse. That’s because more than 25 states enacted laws, sometimes called “Illinois Brick...

The Price Of Innovation

Posted  06/15/09
Many of us think the U.S. health care sector will withstand today’s economy because it supplies important consumer products and services.  Politicians and economists expect pharmaceutical companies to employ scientists, develop medically necessary products, and lead our nation to economic health.  But we must also safeguard companies’ incentive to innovate.  Otherwise we risk losing potentially large sources of...
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