Category: Antitrust

DOJ Updates Merger Remedies Manual

On September 3, 2020, two months after releasing the long-awaited Vertical Merger Guidelines, the Antitrust Division of the U.S. Department of Justice issued an update to its 2004 Policy Guide to Merger Remedies. The focus of the updated (and newly titled) Merger Remedies Manual is on structuring and enforcing remedies, short of full-stop injunctions, designed to cure competitive harms caused by mergers – both horizontal and vertical – that would lessen competition if left unchecked. The Manual begins with a set of guiding principles, among them that remedies should preserve premerger competition, but not create ongoing government regulation of the market; temporary relief should not be used to redress persistent competitive harm; the merging entities, not consumers, should bear the risk of a failed remedy; and a remedy must be enforceable to be effective. From these first principles flow two basic tenets of remedies in merger cases: first, that divestitures (so-called structural remedies) are preferable to conduct remedies aimed at regulating the merged firm’s post-merger operations, which are rarely appropriate, and, second, that settlements designed to rectify competitive harm (so-called consent decrees) must be clear, fully implemented, and strictly complied with. To this end, entire sections of the Manual address various aspects of divestitures: from the characteristics of an acceptable third-party buyer, to the ideal...

DOJ and FTC Issue Final Vertical Merger Guidelines

On June 30, 2020, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) finalized their much-anticipated Vertical Merger Guidelines. The new Guidelines, which were last updated in 1984, seek to increase transparency around the analytical techniques, practices, and enforcement policies that U.S. antitrust authorities use to regulate mergers between firms at different stages of the supply chain (e.g., a furniture maker that acquires a producer of timber). Vertical mergers generally raise fewer anticompetitive concerns than horizontal mergers between direct competitors. This, in part, is because consolidation along the supply chain tends to result in lower prices, as distributors and finished goods manufacturers can source inputs at cost rather than at the markup they would pay to a third-party supplier. But, as the Guidelines make clear, vertical mergers “are not invariably innocuous”: a merged firm could raise the price for – and even withhold – a necessary input from its rivals or exploit sensitive business information about rivals that it obtains as part of the merger. These so-called unilateral effects threaten harm to competition in the relevant market if rivals wind up abandoning the market, leaving consumers with higher prices and less innovation as a result. Per the Guidelines, DOJ and FTC evaluate the extent to which a vertical merger will raise rivals’ costs...

Antitrust Law and the COVID-19 Pandemic

The coronavirus pandemic is having repercussions in all sectors of the legal community, as illustrated in the prior entries in our “The Coronavirus Pandemic and Your Business: How We Can Help” client alert series. Antitrust law is no exception. The Bureau of Competition of the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) have put out two joint statements in response to COVID-19, one on March 24 and another just last week. Both contain reminders and useful guidance concerning cooperation among market participants during these unprecedented times. Recognizing that meeting the challenges posed by the pandemic will require collaborative efforts to address pressing health and safety needs, FTC and DOJ highlighted in their March 24 statement certain types of coordinated activity that the antitrust laws generally permit – because they lead to outcomes that are efficiency-enhancing and pro-competitive. These include: Collaboration on research and development, as may be the case with R&D for developing a potential vaccine. Sharing of information regarding technical know-how as opposed to firm-specific data on prices and outputs. Standard setting designed to assist healthcare providers in clinical decision-making. Joint purchasing arrangements among medical providers that aid procurement, perhaps of PPE, and reduce transaction costs. Lobbying of the federal government regarding the passage and enforcement of...

27 Gibbons Commercial & Criminal Litigation Department Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

Attorneys from the Gibbons Commercial & Criminal Litigation Department were featured in New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars, with 18 Department attorneys on the 2020 Super Lawyers list and nine on the 2020 Rising Stars list. These attorneys were listed in a wide range of categories, including Antitrust, Business Litigation, Class Action, Communications, Construction Litigation, Criminal Defense, Criminal Defense: White Collar, Insurance Coverage, and Media/Advertising. Highlights of this year’s New Jersey Super Lawyers list include the top-tier rankings earned by two Department attorneys: Top 10 Attorneys in New Jersey Lawrence S. Lustberg, Co-Chair, Commercial & Criminal Litigation Department Top 100 Attorneys in New Jersey Michael R. Griffinger, Director, Commercial & Criminal Litigation Department Lawrence S. Lustberg, Co-Chair, Commercial & Criminal Litigation Department The Gibbons attorneys listed in the 2020 issue of New Jersey Super Lawyers are: Frederick W. Alworth Guy V. Amoresano Robert C. Brady Thomas J. Cafferty Patrick C. Dunican Jr. Michael R. Griffinger Jennifer A. Hradil Bruce A. Levy Lawrence S. Lustberg Robert J. MacPherson Michael R. McDonald Brian J. McMahon Mary Frances Palisano Damian V. Santomauro Peter J. Torcicollo Thomas R. Valen Christopher Walsh John T. Wolak Those listed in the 2020 New Jersey Super Lawyers Rising Stars section are: Anne M. Collart Leigh A. DeCotiis Sylvia-Rebecca...

No Harm to Competition: Third Circuit Upholds Decision for Uber in Antitrust Challenge by Philadelphia Taxicab Drivers

The Third Circuit’s newly-issued precedential opinion in Philadelphia Taxi Association v. Uber Technologies, Inc. is a classic reminder that the antitrust laws protect against harm to competition – not harm to competitors. In 2016, a group of Philadelphia taxicab drivers sued Uber in federal district court, alleging that the ride-sharing service was unlawfully attempting to monopolize the vehicle-for-hire market in Philadelphia. Plaintiffs pointed to the fact that, in October 2014, just prior to Uber’s entry into Philadelphia, there were 7,000 taxi drivers, and each of the city’s 1,610 taxicab medallions was valued at an average of $545,000. Two years later, 1,200 medallion taxi drivers had fled to Uber, those still driving taxis saw a thirty percent decline in their earnings, and the value of a medallion plummeted to just $80,000. The district court dismissed the complaint, holding that the plaintiffs had not pled antitrust injury – i.e., harm that the antitrust laws are designed to prevent – and thus did not have antitrust standing to maintain their suit. This appeal followed. The Third Circuit affirmed the dismissal but, unlike the district court, did so first based on plaintiffs’ failure to plausibly allege the elements of their attempted monopolization claim – i.e., that Uber (1) engaged in anticompetitive conduct with a (2) specific intent to monopolize and...

Wide of the Goal: Second Circuit Says No to Soccer League’s Request for Preliminary Injunction in Antitrust Suit

Coming, coincidentally, just days before the start of the 2018 Major League Soccer season, the recent Second Circuit decision in North American Soccer League, LLC v. United States Soccer Federation, Inc. has key takeaways for antitrust and injunction law practitioners. As the governing body for soccer in the U.S. and Canada, the United States Soccer Federation (U.S. Soccer) promulgates Standards, tied to the number and location of a league’s teams, that it uses to designate leagues as Division I, II, or III each year. Major League Soccer (MLS) has been the only D-I men’s soccer league since it began play in 1995, while the North American Soccer League (NASL), despite aspirations to compete directly against MLS, has operated since 2011 as a D-II league. Last year, U.S. Soccer rejected NASL’s application for a D-II designation for the 2018 season. Rather than filing instead for D-III status, NASL sued U.S. Soccer in federal court in Brooklyn, alleging that U.S. Soccer violates Section 1 of the Sherman Antitrust Act by selectively applying its Standards to restrain competition among top-tier U.S. men’s professional soccer leagues. As part of its lawsuit, NASL sought a preliminary injunction requiring U.S. Soccer to grant it D-II status for 2018. Because NASL wanted a D-II designation without going through the usual application process, the...

Applying Federal Common Law, Third Circuit Approves Assignment, Without Consideration, of Antitrust Claims from Direct Purchaser to Indirect Purchaser

In a recent precedential opinion in a case of first impression, the Third Circuit held that a written, express assignment of federal antitrust claims is valid even though no consideration is exchanged between the assignee and assignor. In doing so, the Third Circuit revived a putative class action by an indirect purchaser whose complaint had been dismissed by the District of Delaware for lack of standing under Illinois Brick.

Getting in on the Action: FTC Files Its First Pay-for-Delay Lawsuit

In the increasingly crowded field of pay-for-delay litigation, the FTC blazed a new trail last week when – for the first time – it sued a branded drug maker for agreeing not to launch its own “authorized generic” in competition with a generic competitor. The so-called “no-AG commitment” was part of a deal struck by Endo Pharmaceuticals Inc. in exchange for a promise by Impax Laboratories to postpone by 2½ years its release of a lower-cost generic version of Endo’s lucrative Opana ER painkiller. That deal, according to the Complaint filed on March 30 in federal court in the Eastern District of Pennsylvania, let Endo prolong its alleged monopoly and, with it, the supracompetitive profits it earned from Opana. Meanwhile, the lower prices that come with the entry of a generic were delayed.

Opinion Holds That Non-Monetary Reverse Payments Trigger Actavis Antitrust Scrutiny, Creating Split Within D.N.J.

An opinion issued on October 6, 2014, by Judge Sheridan of the United States District Court for the District of New Jersey further muddied the legal waters as to what type of “reverse payments” made by makers of brand-name pharmaceuticals to their generic competitors to settle patent litigation are subject to antitrust scrutiny under the Supreme Court’s decision in FTC v. Actavis. Judge Sheridan held that Actavis applies to non-monetary payments, such as a promise by the brand-name manufacturer in exchange for which the generic agrees to delay entry. Importantly, however, a non-monetary payment must be capable of being reliably converted to a monetary value so that it can be evaluated against the Actavis factors. Judge Sheridan’s holding runs counter to Judge Walls’s decision earlier this year in In re Lamictal Direct Purchaser Antitrust Litigation, which limited Actavis to reverse payments involving an exchange of cash and was the subject of a prior blog post.

Recent D.N.J. Opinion Offers Roadmap to Practitioners Defending Antitrust Claims

A recent opinion from the District of New Jersey illustrates the breadth of defenses available to an entity accused of violating the antitrust laws. World Phone Internet Services, Pvt. Ltd., a provider of VoIP services in India, and its majority shareholder, TI Investment Services, LLC, sued Microsoft (owner of Skype), alleging that Microsoft’s intentional failure to abide by the requirements of India’s licensing regime for VoIP service providers allowed it to undercut World Phone’s pricing, which advantage Microsoft supposedly used to quash its competitors. In granting Microsoft’s motion to dismiss the complaint in TI Investment Services, LLC v. Microsoft Corp., the Court relied on four independent grounds to decide that plaintiffs’ claims of monopolization and collusion did not pass muster under the Sherman Act.