JUDGE NEIL GORSUCH'S POTENTIAL IMPACT ON THE DEVELOPMENT OF ANTITRUST LAW
|
|
- Clarissa Alexander
- 5 years ago
- Views:
Transcription
1 March 30, 2017 JUDGE NEIL GORSUCH'S POTENTIAL IMPACT ON THE DEVELOPMENT OF ANTITRUST LAW To Our Clients and Friends: As Judge Neil Gorsuch proceeds through the Senate confirmation process, we are continuing to review his jurisprudence while assessing how he might affect the Supreme Court should the Senate approve his nomination. If confirmed, Judge Gorsuch is likely to play a pivotal role in the development of antitrust law, the focus of this alert, including in the near future, as a host of antitrust issues are ripe for the Court's review. During the course of his professional career, Judge Gorsuch has amassed substantial antitrust experience, both as a practitioner and a judge. As a practicing attorney, his experience included both defense- and plaintiff-side antitrust work. In one notable instance, he took an antitrust case to trial and obtained a $1.05 billion treble-damage award for his client. He also taught antitrust law at the University of Colorado Law School. Although Judge Gorsuch has disclaimed any particular antitrust expertise,[1] his credentials suggest otherwise, and Judge Gorsuch would be one of the most practically experienced antitrust practitioners to join the Court since Justice Stevens. Judge Gorsuch's opinions are consistent with the Court's modern antitrust jurisprudence. In his most high profile antitrust opinion as a judge of the U.S. Court of Appeals for the Tenth Circuit, Judge Gorsuch summed up what may be a guiding principle in resolving antitrust disputes: "antitrust evinces a belief that independent, profit-maximizing firms and competition between them are generally good things for consumers."[2] Antitrust law, he explained in another opinion, should recognize that "[a]llowing a business to reap the fruits of its investments is an important element of the free-market system."[3] He further has explained that courts should avoid results that "risk reducing the incentive... to innovate, invest, and expand,"[4] and he joined an opinion articulating the principle that, "[h]aving invested time and money," the defendant should be able to "recoup its investment."[5] Most recently, during his confirmation hearing for his nomination to the Supreme Court, Judge Gorsuch stated that the antitrust laws "were the original regulatory machine.... That was it for the national economy for a long time. They're still vital and brilliant in their simplicity and design."[6] These comments, along with the decisions and matters summarized below, provide a glimpse into how Judge Gorsuch might address antitrust disputes as a sitting Justice.
2 I. Judge Gorsuch's Antitrust Jurisprudence A. Novell, Inc. v. Microsoft Corp.[7] While on the Tenth Circuit, Judge Gorsuch's most significant antitrust decision vindicated Microsoft's entitlement to protect the code for its Windows operating system. The dispute at issue in the case arose with the release of Windows 95. Novell wanted its software (WordPerfect) to run on the Windows operating system as a competitor to Microsoft Word, but Microsoft opted not to share the code for Windows 95 with other software vendors. Claiming this refusal put it at a disadvantage, Novell sued alleging that Microsoft had sought or maintained a monopoly by refusing to deal with competitors. The ensuing trial resulted in a hung jury, and the district court entered judgment as a matter of law in favor of Microsoft. The Tenth Circuit affirmed. Writing for a unanimous panel, Judge Gorsuch articulated an approach to refusal-to-deal claims that wholly embraces the reasoning of Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), and Pacific Bell Telephone Co. v. Linkline Communications, Inc., 555 U.S. 438 (2009). He noted the expansive view of "some courts" that "a monopolist must lend smaller rivals a helping hand," but, consistent with Supreme Court precedent, he found persuasive decisions that "emphatically reject[ ] this approach" and "realize[ ] that the proper focus of section 2 isn't on protecting competitors but on protecting the process of competition."[8] Antitrust law, he continued, generally "protect[s] unilateral conduct," and the refusal-to-deal doctrine is a narrow exception that requires plaintiffs to thread a "narrow-eyed needle," which Novell had not done.[9] Judge Gorsuch also noted that, if antitrust laws were to require monopolists to ease the way for competitors, the result "would paradoxically risk encouraging collusion between rivals and dampened price competition--themselves paradigmatic antitrust wrongs, injuries to consumers and the competitive process alike."[10] B. Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango[11] Judge Gorsuch confronted another refusal-to-deal theory in Four Corners Nephrology Associates. The defendant hospital sought to attract a nephrologist to its facility by enticing her with an exclusive practice at the hospital. This exclusivity was important because the location of the hospital was unlikely to be profitable for a larger nephrology practice. When the hospital later denied another nephrologist access to the hospital, he sued under Section 2 of the Sherman Act. The district court granted summary judgment in favor of the hospital, and the Tenth Circuit affirmed. Writing for a unanimous panel, Judge Gorsuch explained that the hospital's refusal to deal was not anticompetitive conduct under the antitrust laws. He emphasized the presumption that unilateral conduct does not violate the antitrust laws, and noted that the hospital should be permitted to exclude once it made an investment.[12] "Having made a substantial investment in developing its own nephrology practice," he reasoned, the hospital "is entitled to recoup its investment without sharing its facilities with a competitor."[13] 2
3 C. Kay Electric Cooperative v. City of Newkirk[14] In a case at the intersection of state sovereign immunity and antitrust law, Judge Gorsuch held that a municipality could not invoke the state action immunity doctrine to avoid liability under the antitrust laws. The plaintiff (a rural electric cooperative) and the defendant (the municipality) submitted rival bids to provide electricity to a new jail on the outskirts of Newkirk, Oklahoma. The cooperative submitted the better offer, but the city threatened that it would provide the jail with no sewage services if the jail did not accept the city's offer. Because the city was the only provider of sewage services, the jail accepted the city's bid. The plaintiff accused the city of illegal tying and attempted monopolization, and the district court dismissed the suit based on the doctrine of state action immunity, which generally exempts from the antitrust laws conduct by a state to establish regulation or public services in place of competition. The Tenth Circuit reversed and remanded in an opinion by Judge Gorsuch. His opinion focused on whether the state law expressly empowers the municipality to engage in anticompetitive conduct (as state action immunity protects a municipality only to the extent that a state law authorizes its conduct). The relevant state law, he reasoned, reflects a clear preference for--not against--competition, and therefore it did not authorize the municipality s conduct. Accordingly, Newkirk "has to play by the same rules as everyone else," and it "can't abuse its monopoly power or conspire to suppress competition," given the absence of authorization from the state.[15] Judge Gorsuch remanded the case to the district court for proceedings on the merits of the antitrust claim. D. Notable Opinions that Judge Gorsuch Joined In addition to the written opinions discussed above, Judge Gorsuch also voted to join three other notable antitrust decisions in the Tenth Circuit: Dismissing "refusal to deal" monopolization claim based on reasoning similar to that in Novell: The plaintiff in Christy Sports, LLC v. Deer Valley Resort Co.[16] was a ski rental company that sought to extend a lease at Deer Valley Resort and claimed that the resort's refusal to agree to the extension violated Section 2 of the Sherman Act. The district court dismissed the rental company's complaint, and the Tenth Circuit affirmed in an opinion authored by Judge Michael W. McConnell and joined by Judge Gorsuch. According to the opinion, Deer Valley's extensive investments enabled it to exclude others from its property without engaging in anticompetitive conduct. "[T]he creator of a resort," the court reasoned, "has no obligation under the antitrust laws to allow competitive suppliers of ancillary services on its property,"[17] especially because resort investments "increase[ ] competition in the ski industry as a whole."[18] Dismissing antitrust conspiracy allegations based on Copperweld single-entity doctrine: In Native American Distributing v. Seneca-Cayuga Tobacco Co.,[19] the plaintiffs alleged that the four defendants--a company and three individual officers of the company--had conspired to violate Section 1 of the Sherman Act.[20] The district court dismissed the conspiracy claim, and the Tenth Circuit affirmed in an opinion authored by Judge Mary Beck Briscoe and joined by Judge Gorsuch. Among other things, the court reasoned that under the "single-entity rule" 3
4 articulated by the Supreme Court in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), the individuals "were functioning as officers of a single enterprise" and therefore were "not separate economic actors who could, by their agreement, give rise to antitrust violations."[21] Dismissing antitrust conspiracy allegations based on the Noerr-Pennington doctrine: Coll v. First American Title Insurance Co.[22] involved claims against title insurers and the New Mexico Superintendent of Insurance (who had statutory authority to set title insurance premiums), alleging that they had conspired to set unreasonably high premiums and engaged in bribery and corruption. The district court granted a motion to dismiss, and the Tenth Circuit affirmed in an opinion authored by Judge David M. Ebel and joined by Judge Gorsuch. The court held that the claim of collusion was precluded under the Noerr-Pennington doctrine, which exempts from antitrust liability the conduct of private parties attempting to influence government action.[23] The court further rejected the plaintiffs' argument that bribes and other naked corruption are not protected by Noerr-Pennington, reasoning that such an exception would "vitiate Noerr-Pennington almost entirely because there is hardly any lobbying effort that is not open to at least a charge of some illegal dealings when important economic interests are at stake."[24] II. Judge Gorsuch's Career as a Practicing Attorney Judge Gorsuch's career in private practice also provides some insight into his depth of experience with- -and his possible approach as a Justice to--antitrust matters. As a practitioner, he handled antitrust lawsuits from discovery through appeals, representing both plaintiffs and defendants. From 1995 to 2005, Judge Gorsuch worked in private practice until leaving for a short stint at the Department of Justice, and then ultimately joining the Tenth Circuit. Although Judge Gorsuch "consciously sought to maintain a general litigation practice and avoid specialization," several of his cases in private practice involved antitrust claims.[25] These cases ran the gamut from conspiracy claims under Section 1 of the Sherman Act, to refusal to deal and exclusionary conduct cases under Section 2. One of Judge Gorsuch's antitrust cases went to trial in 2002, resulting in a jury verdict of $1.05 billion for his client, which at the time was among the largest private antitrust judgments ever in the United States. Judge Gorsuch's other antitrust cases involved complex pleading challenges, substantial discovery, and client counseling. In short, Judge Gorsuch will bring a robust experience in antitrust matters to the Supreme Court should the Senate confirm his nomination. A. Antitrust Trial: Conwood v. United States Tobacco On behalf of Conwood Co., L.P., a manufacturer of moist snuff smokeless tobacco, Judge Gorsuch brought Sherman Act Section 2 monopolization claims against the dominant manufacturer in the industry, United States Tobacco ("UST"). Conwood alleged that UST engaged in a multiyear scheme to interfere with Conwood's distribution in stores by entering into exclusive dealing arrangements with retailers, removing Conwood's racks and product placements, interfering with Conwood's in-store advertising, and providing misleading information to retailers.[26] 4
5 Judge Gorsuch was involved in every aspect of the case. According to his confirmation questionnaire submitted in connection with his nomination to the Tenth Circuit, Judge Gorsuch "helped manage and run the case at all stages, from the pre-suit investigation through the drafting of the complaint; the discovery process; pre-trial motions practice; trial, where [he] served as second chair and handled many witnesses on direct and cross; post-trial motions practice; and the preparation of appellate briefs."[27] After a four-week trial, the jury returned a verdict in favor of Conwood for $1.05 billion (after trebling). UST challenged the verdict arguing primarily that Conwood had failed to establish that UST excluded Conwood from the relevant market.[28] Both the district court and the court of appeals (in a significant and widely cited decision) ruled that, although Conwood had not presented evidence of UST's conduct in each of the thousands of stores where the tobacco products were sold, Conwood's testimonial and documentary evidence were sufficient to establish that UST had engaged in exclusionary conduct.[29] Conwood also defeated UST's challenges to the damages calculations and expert testimony.[30] Notably, the Obama Administration touted Conwood as an influential "example[] of successful challenges to exclusionary conduct."[31] B. Other Antitrust Experience: Pleadings Challenges and Extensive Discovery Although he was already on the bench by the time the landmark Twombly case reached the Supreme Court, Judge Gorsuch represented in the lower courts one of the defendants facing the conspiracy allegations in that case. The defense group moved to dismiss on the ground that the plaintiffs had not "alleged sufficient facts from which a conspiracy to violate the Sherman Act can be inferred."[32] The district court agreed, but the Second Circuit reversed. In 2007, the Supreme Court vindicated the district court's view and issued its seminal opinion establishing the modern day "plausibility" pleading standard.[33] Around the same time that Twombly was making its way through the courts, Judge Gorsuch was involved in a refusal-to-deal case on behalf of the same telecommunications client sued in Twombly--SBC Communications, Inc. The plaintiff in that case, a competitor to SBC, alleged, among other things, that SBC and its affiliates had monopolized certain telecommunication markets by refusing to allow the plaintiff to connect to SBC's network facilities, had interfered with the plaintiff's customer relations, and had made disparaging remarks.[34] SBC moved to dismiss the complaint, arguing that the just-decided Supreme Court case Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), foreclosed much of the plaintiff's antitrust theory. The district court disagreed, finding that the plaintiff's monopolization and refusal-to-deal theories survived Trinko.[35] In another case--one of his earliest as a partner in private practice--judge Gorsuch asserted a Sherman Act Section 1 conspiracy claim on behalf of his client Zachair, Ltd., against several defendants involved in the sale of a commercial tract of land.[36] Zachair alleged that the defendants were related corporate entities and that their agents had conspired to harm Zachair through the sale. The district court dismissed Zachair's complaint for failure to state a claim based on the Copperweld doctrine, which provides that "[a] corporation and its wholly-owned subsidiary are not capable of conspiring."[37] The district court held, and the Fourth Circuit affirmed, that "Zachair's own allegations show[ed] that the Defendants are related entities incapable of restraining trade within[] the meaning of the Sherman Act."[38] Moreover, 5
6 although other claims asserted by Zachair were not dismissed and the case eventually proceeded to trial, the dismissal of the antitrust claim was with prejudice and Zachair lost its bid on appeal to replead.[39] III. Implications for the Court If confirmed to fill Justice Scalia's seat on the Court, Judge Gorsuch could immediately confront several important issues in antitrust law, including (1) Section 1 pleading rules, (2) the extraterritorial reach of antitrust laws, (3) the controlling antitrust standards for analyzing pharmaceutical reverse payments, (4) whether the rule of reason or per se rule applies to certain agreements, and (5) the antitrust implications of exclusive dealing arrangements. First, the Court recently granted certiorari in a case that would have examined whether membership in a business association, standing alone, can be the basis for inferring conspiracy under Section 1 of the Sherman Act.[40] The case drew substantial interest from the class action bar and business sectors, and many commentators hoped the Court would clarify Twombly and pleading standards in Section 1 matters. The Court eventually dismissed the writ as improvidently granted, however, when the petitioner, having persuaded the Court to review the pleading standard issue, raised unrelated arguments in its merits briefing.[41] Given business and consumer interest in having clear Section 1 pleadings standards, growing disagreement over the interpretation of Twombly, and the Court's interest in deciding the issue, we expect the Court will likely look for another vehicle to address the issue in the future. Second, it seems only a matter of time before the Court is confronted with the permissible reach of U.S. antitrust laws and the extraterritorial limits on such laws set forth in the Foreign Trade Antitrust Improvements Act ("FTAIA"). In 2015, the Court declined review in two appeals from different circuits raising these issues in the context of a litigation over an alleged global cartel to fix prices for liquid crystal displays.[42] The lower courts are divided over the FTAIA's scope and limitations, and the divergences are likely to continue, deepen, and require the Court's intervention. Third, lower courts are struggling to apply the Court's guidance in FTC v. Actavis concerning how to analyze the antitrust implications of pharmaceutical reverse-payment claims.[43] In that case, the Court stated that "unexplained large reverse payment[s]" are an indicator of "serious doubts about the patent's survival" and likely reflect an objective "to maintain supracompetitive prices" instead of to avoid litigation.[44] But it remains unclear precisely what explanations are sufficient to justify large payments in the reverse-payment context, and lower courts are turning to various other factors in order to analyze the propriety of such arrangements. Notably, during his confirmation hearing for his nomination to the Supreme Court, Judge Gorsuch referred to Actavis as a "great case."[45] Fourth, the lower courts are split over the application of the rule of reason or per se rule to certain agreements. For example, the Tenth Circuit recently acknowledged "a circuit split about whether a tying case examined under the rule of reason" requires the plaintiff to prove that the defendant had market power in the tying market.[46] Additionally, the Supreme Court may (again) be asked to decide whether vertical agreements alleged to be part of hub-and-spoke conspiracies should be evaluated under the per se standard or the rule of reason.[47] Leegin clarified that "the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue" and when that restraint "would 6
7 always or almost always tend to restrict competition."[48] The Court also stated that, if a "vertical agreement setting minimum resale prices is entered upon to facilitate [a horizontal] cartel, it... would need to be held unlawful under the rule of reason."[49] Following Leegin, the Third Circuit applied the rule of reason to review a vertical agreement that allegedly facilitated a horizontal conspiracy.[50] But the Second and Fifth Circuits subsequently held that Leegin did not require application of the rule of reason in similar situations.[51] Given these growing circuit splits, the Supreme Court may soon clarify whether the rule of reason should apply in these contexts. Fifth, the Supreme Court has not weighed in on an exclusive dealing dispute in some time, and there is growing division among the lower courts regarding the analytical framework for resolving these claims. On the one hand, for example, the FTC and the Eleventh Circuit both concluded that a manufacturer engaged in an unlawful monopoly when it used an exclusive dealing arrangement to foreclose a substantial share of the market even though a competitor entered the market and acquired a 10% share within two years.[52] The Tenth Circuit has similarly concluded that a "single competitor's breakthrough does not preclude a finding" of monopoly power.[53] On the other hand, the Second Circuit has held that, "as a matter of law," a competitor's "successful entry... itself refutes any inference of the existence of monopoly power."[54] The Ninth Circuit also has held that a competitor's successful market entry "conclusive[ly]" proves that no monopoly exists.[55] Shortly after Justice Scalia's death, the eight-member Court denied certiorari in a case urging the Court to resolve this lower-court division,[56] creating an opportunity for Judge Gorsuch to cast a key vote when a future case invites the Court to clarify how to analyze exclusive dealing arrangements under antitrust laws. With these and other important issues in antitrust law making their way to the Court, and with the Senate nearing a vote on his nomination, we may soon get our first glimpse into how Judge Gorsuch would apply his experience in this area as a sitting Justice. [1] See Can Celik, FTC v. Actavis a 'Great Case' for US Supreme Court, Gorsuch Says, MLex (Mar. 23, 2017). [2] Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1073 (10th Cir. 2013), cert. denied, 134 S. Ct (2014). [3] Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr. of Durango, 582 F.3d 1216, 1221 (10th Cir. 2009) (quotation marks and citation omitted). [4] Novell, 731 F.3d at [5] Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1194 (10th Cir. 2009). [6] See Liz Crampton, Gorsuch Says Lack of Competition Can Hurt Consumers, Economy, Bloomberg BNA (Mar. 27, 2017). [7] 731 F.3d 1064 (10th Cir. 2013). 7
8 [8] Id. at [9] Id. at [10] Id. at [11] 582 F.3d 1216 (10th Cir. 2009). [12] Id. at [13] Id. at [14] 647 F.3d 1039 (10th Cir. 2011), cert. denied, 132 S. Ct (2012). [15] Id. at [16] 555 F.3d 1188 (10th Cir. 2009). [17] Id. at [18] Id. at [19] 546 F.3d 1288 (10th Cir. 2008). [20] 15 U.S.C. 1. [21] 546 F.3d at [22] 642 F.3d 876 (10th Cir. 2011). [23] See id. at [24] Id. at 898. [25] Nomination of Neil M. Gorsuch, Nominee to be Circuit Judge for the Tenth Circuit: Nominee Questionnaire, at 14, available at gorsuch_confirmation.pdf (hereinafter "Confirmation Hearing Questionnaire"). [26] Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 778 (6th Cir. 2002). [27] See Confirmation Hearing Questionnaire at 16. [28] Conwood, 290 F.3d at 783. [29] Id. at 784. [30] Id. at
9 [31] Remarks by Christine A. Varney, Assistant Attorney General, Antitrust Division, Department of Justice, "Vigorous Antitrust Enforcement In This Challenging Era" (May 12, 2009), available at [32] Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174, 178 (S.D.N.Y. 2003), vacated and remanded, 425 F.3d 99 (2d Cir. 2005), rev'd, 550 U.S. 544 (2007). [33] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548 (2007). By the time Twombly was argued in November 2006, Judge Gorsuch had left private practice to join the Department of Justice. [34] Z-Tel Commc'ns, Inc. v. SBC Commc'ns, Inc., 331 F. Supp. 2d 513, 520 (E.D. Tex. 2004). [35] Id. at 535, 539. [36] Zachair, Ltd. v. Driggs, 141 F.3d 1162, 1998 WL (4th Cir. 1998). [37] Id. at *1 (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, (1984)). [38] Id. at *2. [39] Id. at *2-3; see also Confirmation Hearing Questionnaire at 17. [40] Osborn v. Visa Inc., 797 F.3d 1057 (D.C. Cir. 2015), cert. granted 136 S. Ct (June 28, 2016) (No ). [41] See Visa Inc. v. Osborn, 137 S. Ct 289 (Nov. 17, 2016). [42] Compare Motorola Mobility LLC v. AU Optronics Corp., 775 F.3d 816 (7th Cir. 2014), cert. denied, 135 S. Ct (2015), with United States v. Hui Hsiung, 778 F.3d 738, 742 (9th Cir.), cert. denied, 135 S. Ct (2015). [43] FTC v. Actavis, Inc., 133 S. Ct (2013). [44] Id. at [45] See Can Celik, FTC v. Actavis a 'Great Case' for US Supreme Court, Gorsuch Says, MLex (Mar. 23, 2017). [46] Suture Express, Inc. v. Owens & Minor Distrib., Inc., No , 2017 WL , at *6 & n.5 (10th Cir. Mar. 14, 2017). [47] See, e.g., In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186 (9th Cir. 2015); United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015); MM Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835 (5th Cir. 2015); Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., 530 F.3d 204 (3d Cir. 2008). 9
10 [48] Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007). [49] Id. [50] Toledo, 530 F.3d at 204. [51] Apple, 791 F.3d at 290; MM Steel, 806 F.3d at 835. [52] McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015), cert. denied, 136 S. Ct (2016). [53] Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, (10th Cir. 2014). [54] Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 99 (2d Cir. 1998). [55] United States v. Syufy, 903 F.2d 659, 665 (9th Cir. 1990). [56] See McWane, Inc. v. FTC, 136 S. Ct (2016). Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work in the firm's Appellate and Constitutional Law or Antitrust and Competition practice groups, or any of the following: Appellate and Constitutional Law Group: Theodore J. Boutrous, Jr. - Los Angeles ( , tboutrous@gibsondunn.com) Mark A. Perry - Washington, D.C. ( , mperry@gibsondunn.com) James C. Ho - Dallas ( , jho@gibsondunn.com) Caitlin J. Halligan - New York ( , challigan@gibsondunn.com) Antitrust and Competition Practice Group: Peter Sullivan - New York ( , psullivan@gibsondunn.com) Daniel G. Swanson - Los Angeles ( , dswanson@gibsondunn.com) M. Sean Royall - Dallas ( , sroyall@gibsondunn.com) Scott D. Hammond - Washington, D.C. ( , shammond@gibsondunn.com) Cynthia Richman - Washington, D.C. ( , crichman@gibsondunn.com) 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice. 10
Antitrust and Intellectual Property: Recent Developments in the Pharmaceuticals Sector
September 2009 (Release 2) Antitrust and Intellectual Property: Recent Developments in the Pharmaceuticals Sector Aidan Synnott & William Michael Paul, Weiss, Rifkind, Wharton & Garrison LLP www.competitionpolicyinternational.com
More informationWhither Price Squeeze Antitrust?
JANUARY 2008, RELEASE ONE Whither Price Squeeze Antitrust? Jonathan M. Jacobson and Valentina Rucker Wilson Sonsini Goodrich & Rosati Whither Price Squeeze Antitrust? Jonathan M. Jacobson and Valentina
More informationDoes a Civil Protective Order Protect a Company s Foreign Based Documents from Being Produced in a Related Criminal Investigation?
Does a Civil Protective Order Protect a Company s Foreign Based Documents from Being Produced in a Related Criminal Investigation? Contributed by Thomas P. O Brien and Daniel Prince, Paul Hastings LLP
More informationThe Civil Practice & Procedure Committee s Young Lawyers Advisory Panel: Perspectives in Antitrust
The Civil Practice & Procedure Committee s Young Lawyers Advisory Panel: Perspectives in Antitrust NOVEMBER 2017 VOLUME 6, NUMBER 1 In This Issue: Sister Company Liability for Antitrust Conspiracies: Open
More informationThe Supreme Court Decision in Empagran
The Supreme Court Decision On June 14, 2004, the United States Supreme Court issued its much anticipated opinion in Hoffmann-La Roche, Ltd. v. Empagran S.A, 2004 WL 1300131 (2004). This closely watched
More informationThe Implications Of Twombly And PeaceHealth
Portfolio Media, Inc. 648 Broadway, Suite 200 New York, NY 10012 www.law360.com Phone: +1 212 537 6331 Fax: +1 212 537 6371 customerservice@portfoliomedia.com The Implications Of Twombly And PeaceHealth
More informationUNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY PADUCAH DIVISION CIVIL ACTION NO. 5:98-CV-108-R CONWOOD COMPANY, L.P., ET AL.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY PADUCAH DIVISION CIVIL ACTION NO. 5:98-CV-108-R CONWOOD COMPANY, L.P., ET AL. PLAINTIFFS v. UNITED STATES TOBACCO COMPANY, ET AL. DEFENDANTS MEMORANDUM
More informationUNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) NEW ENGLAND CARPENTERS HEALTH ) BENEFITS FUND, et al., ) Plaintiffs, ) ) v. ) CIVIL ACTION NO. 07-12277-PBS ) ) McKESSON CORPORATION, ) Defendant.
More informationAnglo-American Law. Leegin Creative Leather Products, Inc. V. Psks, Inc., Dba Kay s Kloset, Kay s Shoes. Aykut ÖZDEMİR* * Attorney at law.
Anglo-American Law Leegin Creative Leather Products, Inc. V. Psks, Inc., Dba Kay s Kloset, Kay s Shoes Aykut ÖZDEMİR* * Attorney at law. Introduction Mainly, agreements restricting competition are grouped
More informationAntitrust and Intellectual Property
and Intellectual Property July 22, 2016 Rob Kidwell, Member Antitrust Prohibitions vs IP Protections The Challenge Harmonizing U.S. antitrust laws that sanction the illegal use of monopoly/market power
More informationSupreme Court of the United States
No. 15-565 IN THE Supreme Court of the United States APPLE INC., v. Petitioner, UNITED STATES OF AMERICA, et al., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
More informationTenth Circuit Affirms Dismissal of Antitrust Tying and Bundling Claims
March 20, 2017 Tenth Circuit Affirms Dismissal of Antitrust Tying and Bundling Claims The Court of Appeals for the Tenth Circuit recently affirmed the dismissal of claims by a medical products distributor
More informationUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Plaintiffs,
Case :-cv-000-h-blm Document Filed 0/0/ Page of 0 0 0 DEBRA HOSLEY, et al., vs. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiffs, NATIONAL PYGMY GOAT ASSOCIATION; and DOES TO 0,
More informationSUPREME COURT OF THE UNITED STATES
Cite as: 555 U. S. (2009) 1 NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of
More information2015 ANTITRUST LAW UPDATE Brad Weber Locke Lord LLP Co-Leader of Antitrust Practice Group January 29, 2016
2015 ANTITRUST LAW UPDATE Brad Weber Locke Lord LLP Co-Leader of Antitrust Practice Group January 29, 2016 Atlanta Austin Boston Chicago Dallas Hartford Hong Kong Houston Istanbul London Los Angeles Miami
More informationCase 1:05-cv JDT-TAB Document 30 Filed 11/28/2005 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
Case 1:05-cv-00618-JDT-TAB Document 30 Filed 11/28/2005 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION DANIEL WALLACE, Plaintiff, v. FREE SOFTWARE FOUNDATION,
More informationSOME PREDICTIONS ABOUT FUTURE ANTITRUST ENFORCEMENT
2009] 895 SOME PREDICTIONS ABOUT FUTURE ANTITRUST ENFORCEMENT Robert Pitofsky * INTRODUCTION I have been given the challenge of discussing what antitrust enforcement is likely to be over the next four
More informationPharmaceutical Patent Settlement Cases: Mixed Signals for Settling Patent Litigation
By Margaret J. Simpson Tel: 312 923-2857 Fax: 312 840-7257 E-mail: msimpson@jenner.com The following article originally appeared in the Spring 2004 issue of the Illinois State Bar Association s Antitrust
More information2 Noerr-Pennington Rulings Affirm Narrow Scope Of Immunity
Portfolio Media. Inc. 111 West 19 th Street, 5th Floor New York, NY 10011 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com 2 Noerr-Pennington Rulings Affirm Narrow
More informationSupreme Court of the United States
No. 08-661 In the Supreme Court of the United States AMERICAN NEEDLE, INC., Petitioner, V. NATIONAL FOOTBALL LEAGUE, et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
More informationSupreme Court of the United States
No. 07-924 IN THE Supreme Court of the United States MICROSOFT CORPORATION, v. NOVELL, INC., Petitioner, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
More informationLooking Within the Scope of the Patent
Latham & Watkins Antitrust and Competition Practice Number 1540 June 25, 2013 Looking Within the Scope of the Patent The Supreme Court Holds That Settlements of Paragraph IV Litigation Are Subject to the
More informationOKLAHOMA LAW REVIEW VOLUME 57 WINTER 2004 NUMBER 4 RECENT DEVELOPMENTS IN OKLAHOMA ANTITRUST LAW
OKLAHOMA LAW REVIEW VOLUME 57 WINTER 2004 NUMBER 4 RECENT DEVELOPMENTS IN OKLAHOMA ANTITRUST LAW D. KENT MEYERS * & JENNIFER A. DUTTON ** This Article covers six antitrust topics of interest addressed
More informationSupreme Court of the United States
No. 15-565 IN THE Supreme Court of the United States APPLE INC., v. Petitioner, UNITED STATES OF AMERICA, et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals
More informationIntellectual Ventures Wins Summary Judgment to Defeat Capital One s Antitrust Counterclaims
Intellectual Ventures Wins Summary Judgment to Defeat Capital One s Antitrust Counterclaims News from the State Bar of California Antitrust, UCL and Privacy Section From the January 2018 E-Brief David
More informationINTERNATIONAL TRADE AND ANTITRUST. Clarity Put on Hold as FTAIA Conflict/Confusion Continues
INTERNATIONAL TRADE AND ANTITRUST Clarity Put on Hold as FTAIA Conflict/Confusion Continues Attorney Advertising Prior results do not guarantee a similar outcome Models used are not clients but may be
More information10 TH ANNUAL HEALTH CARE PRACTITIONER S ROUNDTABLE VBA HEALTH LAW SECTION
10 TH ANNUAL HEALTH CARE PRACTITIONER S ROUNDTABLE VBA HEALTH LAW SECTION ANTITRUST SCRUTINY OF HEALTH CARE TRANSACTIONS HEMAN A. MARSHALL, III Woods Rogers, PLC 540-983-7654 marshall@woodsrogers.com November
More informationAntitrust/Intellectual Property Interface Under U.S. Law
BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG LONDON LOS ANGELES NEW YORK SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. Antitrust/Intellectual Property Interface Under U.S.
More informationLessons ofauo: Application of the Per Se Rule Precluded Evaluation of the Reasons for, and Impact of Competitor Meetings
61ST ANNUAL ANTITRUST LAW SPRING MEETING April 10, 2013 3:45-5:15 pm Lessons From the AU0 Trial Lessons ofauo: Application of the Per Se Rule Precluded Evaluation of the Reasons for, and Impact of Competitor
More informationWhat Should Be Next at the Supreme Court?
theantitrustsource www.antitrustsource.com December 2007 1 What Should Be Next at the Supreme Court? Jonathan M. Jacobson I In asking What s next at the Supreme Court, we can focus on what we think will
More informationAppeals Court Resoundingly Affirms Scope and Breadth of Shipping Act Antitrust Exemption
31 January 2017 Practice Groups: Antitrust and Trade Regulation Maritime Appeals Court Resoundingly Affirms Scope and Breadth of Shipping Act By John Longstreth, Michael Scanlon, and Allen Bachman In August
More informationSuture Express, Inc. v. Owens & Minor Distrib., Inc., 851 F.3d 1029 (10th Cir.)
Antitrust Law Case Summaries Coordinated Conduct Case Summaries Prosterman et al. v. Airline Tariff Publishing Co. et al., No. 3:16-cv-02017 (N.D. Cal.) Background: Forty-one travel agents filed an antitrust
More informationindependent software developers. Instead, Plaintiffs attempt to plead that they are aggrieved direct
In re Apple iphone Antitrust Litigation Doc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 0 IN RE APPLE IPHONE ANTITRUST LITIGATION Case No.: -cv-0-ygr ORDER GRANTING APPLE S MOTION TO
More informationAPLI Antitrust & Licensing Issues Panel: SEP Injunctions
APLI Antitrust & Licensing Issues Panel: SEP Injunctions Robert D. Fram Covington & Burling LLP Advanced Patent Law Institute Palo Alto, California December 11, 2015 1 Disclaimer The views set forth on
More informationClarifying Competition Law: Interface between Intellectual Property Rights and EU/U.S. Competition/Antitrust Law. Robert S. K.
Clarifying Competition Law: Interface between Intellectual Property Rights and EU/U.S. Competition/Antitrust Law Robert S. K. Bell Arindam Kar Speakers Robert S. K. Bell Partner Bryan Cave London T: +44
More informationCase 2:08-cv LED-RSP Document 474 Filed 08/05/13 Page 1 of 7 PageID #: 22100
Case 2:08-cv-00016-LED-RSP Document 474 Filed 08/05/13 Page 1 of 7 PageID #: 22100 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION RETRACTABLE TECHNOLOGIES, INC.,
More informationANTITRUST LAW AND ECONOMICS ADJUNCT PROFESSOR PAUL BARTLETT, JR LA TROBE UNIVERSITY, Melbourne, Australia
To: Students, Antitrust Law And Economics Greetings and welcome to the class. Regarding the class syllabus, the cases which are in bold print are for student class recitation. In view of time constraints,
More informationUnited States Court of Appeals
In the United States Court of Appeals For the Seventh Circuit No. 14 8003 MOTOROLA MOBILITY LLC, v. Plaintiff Appellant, AU OPTRONICS CORP., et al., Defendants Appellees. Petition for Leave to Take an
More informationCongressional Digital Collection Supporting Research and Education. Area of Practice: Antitrust Law
LexisNexis Congressional Digital Collection Supporting Research and Education Area of Practice: Antitrust Law Use primary source congressional documents to: Understand legislative process Compile research
More informationHave Alien Tort Statute Claims Run Their Course?
Portfolio Media. Inc. 111 West 19 th Street, 5th Floor New York, NY 10011 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com Have Alien Tort Statute Claims Run Their
More informationTHE DISTRICT COURT CASE
Supreme Court Sets the Bar High, Requiring Knowledge or Willful Blindness to Establish Induced Infringement of a Patent, But How Will District Courts Follow? Peter J. Stern & Kathleen Vermazen Radez On
More informationUNITED STATES COURT OF APPEALS TENTH CIRCUIT ORDER AND JUDGMENT * Before BRISCOE, Chief Judge, LUCERO and McHUGH, Circuit Judges.
FILED United States Court of Appeals Tenth Circuit October 23, 2014 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT PARKER LIVESTOCK, LLC, Plaintiff - Appellant, v. OKLAHOMA
More informationNo IN THE. AU OPTRONICS ET AL., Respondents.
No. 14-1122 IN THE MOTOROLA MOBILITY LLC, v. Petitioner, AU OPTRONICS ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit REPLY BRIEF
More informationA Different Approach to Antimonopolization Enforcement for the Obama Admininstration
A Different Approach to Antimonopolization Enforcement for the Obama Admininstration Andrew J. Pincus May 2009 President Barack Obama promised during the 2008 presidential campaign that he would reinvigorate
More informationCase 1:16-cv KLM Document 26 Filed 07/05/17 USDC Colorado Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO ORDER
Case 1:16-cv-02000-KLM Document 26 Filed 07/05/17 USDC Colorado Page 1 of 18 Civil Action No. 16-cv-02000-KLM GARY THUROW, v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
More informationGraduate Industrial Organization Some Notes on Antitrust.
Graduate Industrial Organization Some Notes on Antitrust. John Asker October 17, 2011 The purpose of these notes is not to give an introduction to the law of antitrust in any comprehensive way. Instead,
More informationFTC AND DOJ ISSUE JOINT REPORT REGARDING ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS
OF INTEREST FTC AND DOJ ISSUE JOINT REPORT REGARDING ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS Interesting and difficult questions lie at the intersection of intellectual property rights and
More informationAvoiding Trade Association Antitrust Pitfalls. Jan P. Levine Megan Morley
Avoiding Trade Association Antitrust Pitfalls Jan P. Levine Megan Morley February 16, 2017 Introduction 2 Trade Associations and Antitrust Pro- Competitive Purposes Enforcement agencies and courts recognize
More informationCRS Report for Congress
Order Code RS21723 Updated August 1, 2005 CRS Report for Congress Received through the CRS Web Verizon Communications, Inc. v. Trinko: Telecommunications Consumers Cannot Use Antitrust Laws to Remedy Access
More informationWHY THE SUPREME COURT WAS CORRECT TO DENY CERTIORARI IN FTC V. RAMBUS
WHY THE SUPREME COURT WAS CORRECT TO DENY CERTIORARI IN FTC V. RAMBUS Joshua D. Wright, George Mason University School of Law George Mason University Law and Economics Research Paper Series 09-14 This
More informationHighlights from the Competition & Anti-Monopoly Law and Best Practices Conference Held by AllBright and ECUPL
March 11, 2014 Highlights from the Competition & Anti-Monopoly Law and Best Practices Conference Held by AllBright and ECUPL By David Tang and Li Lei 1 ALLBRIGHT INSIGHTS is a news bulletin which focuses
More informationby Harvey M. Applebaum and Thomas O. Barnett
ANTITRUST LAW: Ninth Circuit upholds Kodak's liability for monopolizing the "aftermarket" for servicing of its equipment but vacates some damages and modifies injunction. by Harvey M. Applebaum and Thomas
More informationNos , , , IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Case: 12-10492 09/04/2014 ID: 9229254 DktEntry: 103 Page: 1 of 20 Nos. 12-10492, 12-10493, 12-10500, 12-10514 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT United States of America, Plaintiff-Appellee,
More informationNo IN THE JANUS CAPITAL GROUP INC. AND JANUS CAPITAL MANAGEMENT LLC, FIRST DERIVATIVE TRADERS, Respondent.
No. 09-525 IN THE JANUS CAPITAL GROUP INC. AND JANUS CAPITAL MANAGEMENT LLC, V. Petitioners, FIRST DERIVATIVE TRADERS, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals
More informationAntitrust Injury in Robinson-Patman Cases: What s Left?
NOVEMBER 2008, RELEASE TWO Antitrust Injury in Robinson-Patman Cases: What s Left? Scott Martin Weil, Gotshal & Manges LLP Antitrust Injury in Robinson-Patman Cases: What s Left? Scott Martin* lthough
More informationCriminalization of wage-fixing and no-poaching agreements
CPI s North America Column Presents: Criminalization of wage-fixing and no-poaching agreements By John M. Taladay (Co-Chair of the Antitrust and Competition Law Practice) & Vishal Mehta (Senior Associate
More informationThe Supreme Court and Local Governments A 2004 Review
November/December 2004 INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION In this issue: Prompt Judicial Review and SOBs The Hiibel Decision Canada s Top Court and the United Taxi Drivers Case Verizon Communications
More informationEditor s Note. US Antitrust Modernization Commission. By A. Noboa Pagán.
Editor s Note. US Antitrust Modernization Commission. By A. Noboa Pagán. Since 2002, the United States Congress designated an Antitrust Modernization Commission with the task of examining whether or not
More informationCase: , 03/30/2018, ID: , DktEntry: 61-1, Page 1 of 9 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Case: 16-55739, 03/30/2018, ID: 10818876, DktEntry: 61-1, Page 1 of 9 FILED (1 of 14) UNITED STATES COURT OF APPEALS MAR 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LENHOFF
More informationIntellectual Property E-Bulletin
Issue 78 August 2012 Inside This Issue ABA Antitrust Section Intellectual Property E-Bulletin The Intellectual Property Committee is pleased to present the latest issue of our monthly E-Bulletin, providing
More informationPresenting a live 90-minute webinar with interactive Q&A. Today s faculty features:
Presenting a live 90-minute webinar with interactive Q&A Foreign Trade Antitrust Improvements Act: When Do U.S. Antitrust Laws Apply to Foreign Conduct? Navigating the Applicability of the FTAIA's "Effects
More informationON NOVEMBER 6, 2001, the U.S. Court of Appeals
21 Biotechnology Law Report 13 Number 1 (February 2002) Mary Ann Liebert, Inc. Brief Analysis of Recent Pharmaceutical/IP Decisions DAVID A. BALTO AMERICAN BIOSCIENCE, INC. V. THOMPSON 269 F.3D1077, 2001
More informationIN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Case: 16-41674 Document: 00514283638 Page: 1 Date Filed: 12/21/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ARCHER AND WHITE SALES, INC., United States Court of Appeals Fifth Circuit
More informationIf you bought Aggrenox directly from Boehringer Ingelheim you could get a payment from a class action settlement.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT If you bought Aggrenox directly from Boehringer Ingelheim you could get a payment from a class action settlement. A federal court authorized
More informationAntitrust and Refusals To Deal after Nynex v. Discon
Antitrust and Refusals To Deal after Nynex v. Discon Donald M. Falk * Your client really can say "no" without running afoul of the antitrust limitations. NO ONE LIKES to lose business. On the other hand,
More informationDaubert Case Summaries
Daubert Case Summaries APPLICATION OF DAUBERT IN THE ANTITRUST CONTEXT Federal judges often determine the admissibility of expert testimony by applying the Daubert standard, named after Daubert v. Merrell
More informationIn the Supreme Court of the United States
No. 16-953 In the Supreme Court of the United States RETRACTABLE TECHNOLOGIES, INC. AND THOMAS J. SHAW, v. BECTON, DICKINSON & CO., Petitioners, Respondent. On Petition for Writ of Certiorari to the United
More informationCase 6:08-cv LED Document 363 Filed 08/02/10 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION
Case 6:08-cv-00325-LED Document 363 Filed 08/02/10 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION REEDHYCALOG UK, LTD. and REEDHYCALOG, LP vs. Plaintiffs,
More information*CLMNT_IDNO* - UAA - <<SequenceNo>>
NAMENDA DIRECT PURCHASER CLAIMS ADMINISTRATOR C/O RUST CONSULTING 6269 PO BOX 44 MINNEAPOLIS, MN 55440-0044 IMPORTANT LEGAL MATERIALS *CLMNT_IDNO* - UAA -
More informationSupreme Court of the United States
No. 16-850 IN THE Supreme Court of the United States ENERGY CONVERSION DEVICES LIQUIDATION TRUST, BY AND THROUGH ITS LIQUIDATING TRUSTEE, JOHN MADDEN, Petitioner, V. TRINA SOLAR LIMITED; TRINA SOLAR (U.S.),
More informationLEGAL UPDATE MICROSOFT: EXCLUSIVE DEALING UNDER SECTION 1 OF THE SHERMAN ACT: A NEW STANDARD? Shannon A. Keyes
LEGAL UPDATE MICROSOFT: EXCLUSIVE DEALING UNDER SECTION 1 OF THE SHERMAN ACT: A NEW STANDARD? Shannon A. Keyes I. INTRODUCTION The United States Supreme Court has denied the Justice Department s petition
More informationSupreme Court of the United States
No. 17-204 In the Supreme Court of the United States IN RE APPLE IPHONE ANTITRUST LITIGATION, APPLE INC., V. Petitioner, ROBERT PEPPER, ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE
More informationPharmaceutical Product Improvements and Life Cycle Management Antitrust Pitfalls 1
Pharmaceutical Product Improvements and Life Cycle Management Antitrust Pitfalls 1 The terms product switching, product hopping and line extension are often used to describe the strategy of protecting
More informationThe Filed Rate Doctrine
Comments on The Filed Rate Doctrine Submitted on Behalf of United States Telecom Association Michael K. Kellogg ( ) Aaron M. Panner ( ) Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. 1615 M Street,
More informationLegal Methodology in Antitrust Law
Thema/Anlass Datum Seite 1 Legal Methodology in Antitrust Law 10,502,1.00 Comparative Legal Methods Prof. Dr. Peter Hettich, LL.M. Friday, November 16, 2007, 12:35 Agenda Substantive Law and Procedure
More informationUnited States District Court
Case:-cv-0-WHA Document Filed0/0/ Page of IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 0 0 ERNEST EVANS, THE LAST TWIST, INC., THE ERNEST EVANS CORPORATION, v. Plaintiffs,
More informationCase 1:12-cv WJM-KMT Document 64 Filed 09/05/13 USDC Colorado Page 1 of 11
Case 1:12-cv-02663-WJM-KMT Document 64 Filed 09/05/13 USDC Colorado Page 1 of 11 Civil Action No. 12-cv-2663-WJM-KMT STAN LEE MEDIA, INC., v. Plaintiff, THE WALT DISNEY COMPANY, Defendant. IN THE UNITED
More informationThe typical lawyer in Colorado does not make his or her living
Reproduced by permission. 2014 Colorado Bar Association 43 The Colorado Lawyer 19 (October 2014). All rights reserved. ANTITRUST AND CONSUMER PROTECTION LAW Antitrust for All: A Primer for the Non-Antitrust
More informationWhat s So Special About Treaty Arbitration?: U.S. Supreme Court Confronts Its First International Investment Treaty Arbitration Case
What s So Special About Treaty Arbitration?: U.S. Supreme Court Confronts Its First International Investment Treaty Arbitration Case BY IGOR V. TIMOFEYEV, JOSEPH R. PROFAIZER & DANIEL PRINCE December 2013
More informationINTERNATIONAL SUPPLY AND DISTRIBUTION ARRANGEMENTS: CURRENT TRENDS & ISSUES. By David B. Eberhardt and John E. McCann, Jr.
INTERNATIONAL SUPPLY AND DISTRIBUTION ARRANGEMENTS: CURRENT TRENDS & ISSUES By David B. Eberhardt and John E. McCann, Jr. In today s global economy, and with the advent of purchasing via the Internet,
More informationCase: 1:17-cv Document #: 43 Filed: 07/02/18 Page 1 of 8 PageID #:<pageid>
Case: 1:17-cv-05779 Document #: 43 Filed: 07/02/18 Page 1 of 8 PageID #: IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MCGARRY & MCGARRY LLP, ) ) Plaintiff,
More informationUNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA. v. MEMORANDUM AND ORDER
CASE 0:11-cv-03354-PAM-AJB Document 22 Filed 06/13/12 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Gene Washington, Diron Talbert, and Sean Lumpkin, on behalf of themselves and all others
More informationSupreme Court to Address Removal of State Parens Patriae Actions to Federal Courts Under CAFA
theantitrustsource w w w. a n t i t r u s t s o u r c e. c o m A u g u s t 2 0 1 3 1 Supreme Court to Address Removal of State Parens Patriae Actions to Federal Courts Under CAFA Blake L. Harrop S States
More informationThe Challenges For CEA Price Manipulation Plaintiffs
The Challenges For CEA Price Manipulation Plaintiffs By Mark Young, Jonathan Marcus, Gary Rubin and Theodore Kneller, Skadden Arps Slate Meagher & Flom LLP Law360, New York (April 26, 2017, 5:23 PM EDT)
More informationIncreased Scrutiny of Reverse Payment Settlements: Recent Cases in E.D. of PA and 2nd Circuit Suggest Change May Be Ahead for Pharma Clients
Increased Scrutiny of Reverse Payment Settlements: Recent Cases in E.D. of PA and 2nd Circuit Suggest Change May Be Ahead for Pharma Clients By Francis P. Newell and Jonathan M. Grossman Special to the
More informationPatent Portfolio Management and Technical Standard Setting: How to Avoid Loss of Patent Rights. Bruce D. Sunstein 1 Bromberg & Sunstein LLP
Patent Portfolio Management and Technical Standard Setting: How to Avoid Loss of Patent Rights I. The Antitrust Background by Bruce D. Sunstein 1 Bromberg & Sunstein LLP Standard setting can potentially
More informationAntitrust for Trade Association Executives
February 28, 2011 Antitrust for Trade Association Executives GKG Law, P.C. Association Law Educational Series Steven John Fellman 1054 31 st Street, N.W., Suite 200 Washington, D.C. 20007 Telephone: (202)
More informationPleading Direct Patent Infringement Without Form 18
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com Pleading Direct Patent Infringement Without Form 18
More informationInvestigation No. 337-TA International Trade Commission
Investigation No. 337-TA-1002 International Trade Commission In the Matter of CERTAIN CARBON AND STEEL ALLOY PRODUCTS Comments of the International Center of Law & Economics Regarding the Commission s
More informationIN THE Supreme Court of the United States
No. 17-475 IN THE Supreme Court of the United States SECURITIES AND EXCHANGE COMMISSION, Petitioner, v. DAVID F. BANDIMERE, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of
More informationLEGAL SUPERHEROES: VOL 2. MAKING YOU A LEGAL SUPERHERO!
LEGAL SUPERHEROES: VOL 2. MAKING YOU A LEGAL SUPERHERO! Session 7: 3:30-4:30 Presented by Sidley Austin Title: Antitrust Audits as part of a Gold Standard Compliance Program Speakers: Peter Huston, Partner,
More informationDIRECT PURCHASERS STANDING TO SUE FOR WALKER PROCESS FRAUD IN RE: DDAVP DIRECT PURCHASER ANTITRUST LITIGATION
DIRECT PURCHASERS STANDING TO SUE FOR WALKER PROCESS FRAUD IN RE: DDAVP DIRECT PURCHASER ANTITRUST LITIGATION Rick Duncan Denise Kettleberger Melina Williams Faegre & Benson, LLP Minneapolis, Minnesota
More informationReverse Payment Settlements In Pharma Industry: Revisited
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com Reverse Payment Settlements In Pharma Industry: Revisited
More information3 Tips For Understanding Price Fixing Conspiracy Liability
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com 3 Tips For Understanding Price Fixing Conspiracy Liability
More informationTAUC The Association of Union Contractors ANTITRUST COMPLIANCE PROGRAM
TAUC The Association of Union Contractors ANTITRUST COMPLIANCE PROGRAM By: Steven John Fellman GKG Law, P.C. General Counsel The Association of Union Contractors I. APPLICATION OF ANTITRUST LAWS TO TAUC
More informationClient Advisory. United States Antitrust Guidelines. Corporate Department. I. The U.S. Antitrust Laws. July 2013
Client Advisory Corporate Department United States Antitrust Guidelines The American economic system depends upon free enterprise and open competition. The U.S. antitrust laws were enacted to help preserve
More informationTying Arrangements: Requisite Economic Power, Promotional Ties and the Single Product Defense
Boston College Law Review Volume 11 Issue 2 Number 2 Article 10 2-1-1970 Tying Arrangements: Requisite Economic Power, Promotional Ties and the Single Product Defense Raymond J. Brassard Follow this and
More informationCase 1:06-cv RWR Document 53 Filed 02/25/2008 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Case 1:06-cv-02084-RWR Document 53 Filed 02/25/2008 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WALGREEN COMPANY et al., Plaintiffs, v. Civil Action No. 06-2084 (RWR ASTRAZENECA
More informationCOMMENTARY. The New Texas Two-Step: Texas Supreme Court Articulates Evidence Spoliation Framework. Case Background
August 2014 COMMENTARY The New Texas Two-Step: Texas Supreme Court Articulates Evidence Spoliation Framework Spoliation of evidence has, for some time, remained an important topic relating to the discovery
More informationSTANDARD SETTING AND ANTITRUST: SSOs, SEPs, F/RAND AND THE PATENT HOLDUP. Jeffery M. Cross Freeborn & Peters LLP
STANDARD SETTING AND ANTITRUST: SSOs, SEPs, F/RAND AND THE PATENT HOLDUP By Jeffery M. Cross Freeborn & Peters LLP Standards and standard setting have been thrust recently to the forefront of antitrust
More information