AAI Advocacy and Antitrust Wins in 2015

2015 is turning out to be a good year for antitrust advocacy. Below are some of the notable “wins” involving pubic and private antitrust enforcement in the United States in which the American Antitrust Institute played an important advocacy role with amicus briefs, white papers, letters to the agencies and Congress, or comments in regulatory proceedings.

In re Nexium (Esomeprazole) Antitrust Litigation
The First Circuit Court of Appeals held in January that an injury to each and every class member was not a requirement for class certification. The AAI filed an amicus brief last September in the case in support of the position adopted by the court. The brief argued that the Court should not re-interpret the Rule 23(b)(3) “predominance” requirement to create an extra-statutory “uniformity” requirement.

Sysco Corp.-US Foods Inc.
The Federal Trade Commission (FTC) filed a lawsuit in February to challenge the merger of the nation’s two largest broadline food distributors. The FTC’s concerns center on the loss of competition in the national and regional broadline food distribution markets. In advance of the merger challenge, the AAI submitted a detailed letter to the FTC regarding the competitive effects of the transaction. 

North Carolina Board of Dental Examiners v. FTC
In a 6-3 decision in February, the U.S. Supreme Court sided with the FTC in finding that a state dental board dominated by market participants did not enjoy state-action antitrust immunity. The Court held that such a board must be actively supervised to satisfy the requirements of state-action immunity under Parker and Midcal. The AAI filed an amicus brief last August in the case in support of the FTC. 

Partners HealthCare-South Shore Hospital
The parties to a Massachusetts hospital merger abandoned the transaction in February after a state court rejected a settlement proposed by the Massachusetts Attorney General that would have allowed the transaction to proceed subject to a conduct remedy. The court found that the proposed remedy—primarily price caps—would not adequately prevent price increases and would be difficult to monitor and enforce. The AAI filed two sets of comments late last year opposing the settlement, including analysis by Northeastern University Professor of Economics John Kwoka. The judge extensively cited the AAI’s analysis.

Comcast-Time Warner Cable
After over a year, the two largest cable companies in the United States abandoned their proposed merger in the face of opposition from the Federal Communications Commission (FCC) and the Department of Justice (DOJ). Leading up to the merger’s abandonment in April, the AAI produced a white paper analyzing competitive issues raised by the transaction, submitted comments to the FCC, and drafted letters to the Department of Justice and the House and Senate Judiciary Committees. 

Oneok, Inc. v. Learjet. Inc.
In a 7-2 decision in April, the U.S. Supreme Court held that state law antitrust claims are not preempted by the federal Natural Gas Act, allowing antitrust claims alleging price fixing to proceed.  In amicus briefs submitted to the Ninth Circuit and the Supreme Court, the AAI developed the basic legal theory on which the Supreme Court’s decision rested. 

McWane, Inc. v. FTC
The FTC prevailed in April in the Eleventh Circuit against a monopolist using anticompetitive exclusive dealing arrangements. The Court found the arrangements used by the incumbent hampered a newcomer’s entry into the market for iron pipe fittings and rejected a high evidentiary bar for showing competitive harm. The AAI filed an amicus brief last September in the case in support of the FTC. 

In re Cipro Cases I & II
Interpreting California antitrust law, the California Supreme Court followed the U.S. Supreme Court’s decision in Actavis with respect to “reverse payment” agreements. Such agreements involve a payment by a branded drug company to a generic competitor in return for the generic dropping its challenge and delaying its entry. The California Court ruled in May that such agreements are evaluated under a structured rule of reason in which the merits of underlying patent litigation are irrelevant. The AAI filed an amicus brief in March 2014 in support of the position adopted by the California court. 

New York v. Actavis
In May, the Second Circuit Court of Appeals upheld a preliminary injunction in the first “product hopping” case to be decided by a court of appeals.  The court found that New York was likely to succeed in demonstrating that the manufacturer of a popular Alzheimer’s drug violated Section 2 by withdrawing the drug from the market and forcing consumers to switch to a reformulation in order to prevent impending generic competition.  The AAI filed an amicus brief in February 2015 in support of the position adopted by the Second Circuit.