Blog O Blogs March

March arrives, bringing with it a slew of high-profile and high-impact trends and cases that could herald major changes in the enforcement, analysis and understanding of antitrust across several jurisdictions. DOJ decisions signal new approaches and a re-thinking of their strategies while EU regulators continue to push against global companies in Big Tech and Big Pharma, joining others in changing some long-standing preconceptions of antitrust enforcement…

The End Is Near For the Per Se Rule in Criminal Antitrust Prosecutions 
I have been very interested in constitutional challenges to the per se rule in criminal Section 1 Sherman Act prosecutions.  I have reluctantly come to the conclusion that the per se rule is unconstitutional…
Robert Connolly (Cartel Capers)

More Affordable and Innovative Medicines and Treatments in Europe – Has the Competition Enforcement Met the 2009 Objective?
A decade ago, the European Commission conducted a thorough sectoral inquiry into the European pharmaceutical sector that identified antitrust shortcomings impeding access to more affordable and innovative medicines and treatments…
Marie-Laure Combet & Lena Boucon (Orrick)

DOJ Distinguishes ‘No-Poach’ Agreements
The Department of Justice filed a Statement of Interest in three related cases in the Eastern District of Washington yesterday dealing with alleged “no-poach” (or non-solicitation) agreements…
Nicole Castle & Matt Evola (Antitrust Alert)

EU: Parent Companies Are Liable for Cartel Damages Caused By Their Liquidated Subsidiaries
In a landmark judgment, the European Court of Justice (ECJ) decided on March 14, 2019 that companies cannot use corporate restructuring to escape their liability for cartel damages…
Till Steinvorth & Boris Marschall (Orrick)

Podcast: Two episodes on “blockchain and antitrust”
I had the honor of participating in Professor Caron Beaton-Wells’ terrific podcast, Competition Lore. We talked at length about antitrust and blockchain.…
Thibault Schrepel (Le Concurrentialiste)

Use and abuse of bargaining models in antitrust: AT&T/Time-Warner and FTC v. Qualcomm
The Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) have spent a significant amount of time in federal court litigating major cases premised upon an anticompetitive foreclosure theory of harm…
Douglas H. Ginsburg & Joshua
D. Wright (Truth on the Market)

Circuit Judge Thomas Vanaskie’s Antitrust Legacy: 2 Significant Cases
Judge Thomas I. Vanaskie recently retired from the federal bench, following more than 16 years as a district judge in the Middle District of Pennsylvania. During that distinguished tenure, Vanaskie issued numerous opinions in two significant and complex antitrust cases…
Carl W. Hittinger & Julian Perlman (Baker Hostetler)

The Marathon Effort to Enact an Antitrust Whistleblower Statute is Still in the Race
Although proposed legislation to protect and to encourage antitrust whistleblowers has struggled for years to cross the finish line the U.S., there are signs this marathon effort may yet prove successful.)...
Elizabeth Taras (Constantine Cannon)

Federal Court Opinion Reminds Health Care Providers to Assess the Antitrust Risks of Competitor Affiliations
The Attorney General of the State of Washington (the State) scored another victory last week in its federal antitrust challenge to Franciscan Health System’s (Franciscan) affiliations with two competing physician practices…
Stephen Wu & Katharine M. O’Connor (Antitrust Alert)

Justice Department Unable to Overturn Decision Allowing AT&T Merger with Time Warner
The U.S. Court of Appeals in Washington, D.C. last week concluded that the government failed to prove that the combination of AT&T Inc. and Time Warner Inc. would violate Sec. 7 of the Clayton Act…
Jeffrey May (Wolters Kluwer)

Competition enforcer terminates RPM investigation into Coca-Cola
Having now concluded two non-merger cases, the COMESA Competition Commission’s (“CCC”) second investigation into restrictive vertical distribution practices engaged in by Coca-Cola and its distributors has culminated….
Editor
 (Africa Antitrust)

NCAA May Have Lost Antitrust Case to Student-Athletes, But How Much Did It Really Lose?
Friday’s 104-page ruling in the antitrust case challenging the compensation rules of the National Collegiate Athletic Association (“NCAA”) is not a clear-cut victory for either side.…
Grant Petrosyan (Constantine Cannon)

Hell or High Water for Nidec
The phrase “come hell or high water” is said to have originated in the late 1800s in reference to the conditions cattle herders encountered when they trekked from Texas to the Midwest across large prairies in the summer heat and through deep rivers…
James J. Tierney (Orrick)

Unilateral Digital Service Taxes and EU State Aid Rules: the elephant in the room
We have always cautioned against the application of different rules and standards only to certain companies. That is a trend that appears to be in vogue these days…
Alfonso Lamadrid (Chilling Competition)

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