Bruce D. Sokler

Bruce D. Sokler

Mintz Levin

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FTC Settles Monopolization Charges Stemming from Contract Exclusivity Terms Used by First-to-Market Medical Polymer Maker

The mere possession of monopoly power does not violate federal antitrust laws. The laws only address the anticompetitive acquisition, maintenance, or abuse of that power. The Federal Trade Commission (“FTC”) entered into a...more

4/29/2016 - Abuse of Power Anticompetitive Agreements Competition Consent Order FTC FTC Act Medical Devices Monopolization Product Exclusivity Section 5

Court Denies Class Cert. in NCAA Antitrust Suit

The NCAA scored a victory last week with the denial of class certification in an antitrust suit challenging the association’s former ban on multiyear scholarships (the “One Year Rule”) and its cap on scholarships (the “GIA...more

4/4/2016 - Antitrust Litigation Ascertainable Class Athletes Class Certification Class Representatives Injunctive Relief NCAA Scholarships Standing

Sixth Circuit Finds Possibility of Conspiracy Among Hospital Network Members

The Sixth Circuit on Tuesday voted 2 to 1 to reverse a district court’s grant of summary judgment under which a defendant hospital network had been found to be a single entity incapable of conspiring with itself in an...more

3/26/2016 - Anticompetitive Behavior Conspiracies Hospitals Joint Operating Agreement Monopolization Reversal Sherman Act Single Entity Rule

New Class Action Filed Challenging NCAA’S Scholarship Caps and Transfer Rules

In the latest chapter in the litigation wars against college athletics, on March 8, 2016, another antitrust class action was filed against the NCAA in its “home court,” the United States Southern District of Indiana. This...more

3/10/2016 - Antitrust Violations Class Action College Athletes Football NCAA Scholarships Transfer Restrictions

Rodeo Associations Fail to Wrangle Each Other in First Round of Antitrust Class Action: District Court Denies Plaintiffs’...

An upstart rodeo association, created and owned by professional rodeo cowboys, challenged that its competitor’s bylaws aimed at the new association and its participants constituted agreements that unreasonably restrain trade...more

2/9/2016 - Antitrust Litigation Bylaws Class Action Monopolization Motion to Dismiss Preliminary Injunctions Sherman Act

FTC Increases HSR Jurisdictional Thresholds

The Federal Trade Commission (FTC) announced on January 21, 2016 increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act)....more

1/25/2016 - Federal Register Filing Fees FTC Hart-Scott-Rodino Act Jurisdiction Premerger Notifications Statutory Waiting Period

FTC Sets Berks County’s Broken Orthopedic Market

Keystone Orthopaedic Specialists, LLC (“Keystone”), and Orthopaedic Associates of Reading, Ltd. (“OA”) reached a settlement with the Federal Trade Commission last week that they had violated the antitrust laws through the...more

10/21/2015 - Anti-Competitive Competition Consent Decrees Enforcement Actions FTC Hiring & Firing Joint Contracting Market Power Physicians

FTC Merger Challenge Based on Harm to Potential Competition Rejected by District Court

In what has become rare of late, the Federal Trade Commission (“FTC”) suffered a litigation loss in a merger case with a district court’s denial of a preliminary injunction to block the deal pending administrative litigation....more

9/28/2015 - Competition FTC Injunctive Relief Preliminary Injunctions The Clayton Act

Kissing Camels Antitrust Suit Against Health System Moves Past Another Hump in the Road

In June, an antitrust suit brought by plaintiff ambulatory surgery centers (“ASCs”) against a health system, health insurers, and a trade association survived a motion to dismiss. Last week, the ASCs’ case cleared the hump of...more

9/3/2015 - Ambulatory Surgery Centers Anti-Competitive Antitrust Conspiracies False Statements Insurance Industry Joint Venture Leave to Amend Monopolization Motion for Summary Judgment Sherman Act Trade Associations

Investment Fund Violates “Investment-Only” HSR Exemption

At the request of the Federal Trade Commission (“FTC” or “Commission”), the Department of Justice (“DOJ”) filed this week in federal court a proposed settlement to charges that an investment fund violated the...more

8/27/2015 - Board of Directors DOJ Enforcement Actions FTC Hart-Scott-Rodino Act Injunctive Relief Premerger Notifications Settlement Agreements Shareholders Third Point Yahoo!

Another FTC Conduct Case to Bolster Generic Drug Competition: Pharmaceuticals Charged with Illegal Non-Compete for Generic ADHD...

The Federal Trade Commission’s (“FTC” or “Commission”) ever-expanding list of enforcement actions to preserve competition for generic pharmaceuticals just grew in a new direction. This week, two generic pharmaceutical...more

8/21/2015 - Consent Order Enforcement Actions FTC Generic Drugs Non-Compete Agreements Pharmaceutical Industry

Ninth Circuit Upholds Judge Robart’s RAND Determinations in Microsoft v. Motorola

Late last month, the Ninth Circuit Court of Appeals issued its much-anticipated decision in Microsoft v. Motorola, a breach of contract action brought by Microsoft alleging that Motorola violated its commitment to license its...more

8/17/2015 - Anti-Suit Injunctions Breach of Contract Covenant of Good Faith and Fair Dealing Damages ITC Licenses Microsoft Motorola Patent Infringement Patents RAND Standard Essential Patents

West Virginia AG Clears Merger Creating Second Largest Hospital Chain in the State with Conduct Remedy

The federal antitrust enforcement agencies have trumpeted their preferences for structural, as opposed to conduct, remedies as the solution to potentially anticompetitive mergers. In contrast, State Attorneys General have...more

8/3/2015 - Anticompetitive Agreements Antitrust Provisions Attorney Generals FTC Health Care Providers Hospital Mergers Non-Compete Agreements Physicians Sherman Act

EU Court Clarifies the Conditions Under Which Assertion of Standard-Essential Patents May Constitute Abuse of Market Dominance

Last week, in response to a request for a preliminary ruling by a German court hearing a patent infringement action brought by Huawei against ZTE, the Court of Justice of the European Union (ECJ) took up the question of...more

7/24/2015 - Abuse of Dominance EU European Court of Justice (ECJ) FRAND Injunctive Relief Intellectual Property Protection Patent Infringement Patent Litigation Patents Popular Remedies Standard Essential Patents TFEU

Second Circuit Continues the Ebook Saga by Affirming Apple’s Role in an Unlawful Price Fixing Conspiracy

On June 30, 2015, the same day as the launch of Apple’s new streaming music service, the Second Circuit Court of Appeals coincidentally affirmed a district court ruling that Apple conspired with five of the country’s largest...more

7/9/2015 - Amazon Apple Collusion Corporate Counsel ebook Internet Retailers Most-Favored Nations Per Se Rule Price-Fixing Publishers Retailers Rule-of-Reason Analysis Sherman Act Young Lawyers

Divestiture Offer Fails to Save Merger Where FTC Wins on Market Definition Based on Customer Type

Eighteen months after the deal was first announced, Sysco Corporation (“Sysco”) and US Foods, Inc. (“USF”) abandoned their $3.5 billion merger following the Federal Trade Commission’s (the “FTC” or “Commission”) decisive...more

7/8/2015 - Corporate Counsel Distributors Divestiture Food Supply FTC Mergers Preliminary Injunctions Sysco Trucking Industry US Foods Young Lawyers

Supreme Court Upholds Brulotte Rule Prohibiting Post-Expiration Patent Royalties

On June 22, 2015, the Supreme Court issued its decision in Kimble v. Marvel Entertainment, LLC, upholding the rule, first announced in Brulotte v. Thys Co., 379 U. S. 29 (1964), that an agreement allowing a patent owner to...more

6/24/2015 - Brulotte Kimble v Marvel Enterprises Marvel Comics Patent Royalties Patent Terms Patents Royalties SCOTUS Stare Decisis

Camels and Dogs, Oh My! Defendant Documents Doom Health Provider Trade Association and Insurers’ Motion to Dismiss Antitrust Suit

Over two and one-half years after it was initially filed, an antitrust suit brought by plaintiff ambulatory surgery centers (“ASCs”) against health insurers and a trade association of competing health systems is finally...more

6/23/2015 - Anti-Competitive Health Care Providers Health Insurance Insurance Industry Restraint of Trade Sherman Act

Harm to Potential Competition Triggers FTC Merger Challenge

The Federal Trade Commission (“FTC” or “Commission”) filed an administrative complaint last week challenging the proposed $1.9 billion merger of Steris Corporation (“Steris”) and Synergy Health plc (“Synergy”), charging that...more

6/5/2015 - Corporate Counsel FTC Hart-Scott-Rodino Act Health Care Providers Horizontal Mergers Inversion Medical Devices Mergers

Second Circuit Holds a Hard Switch Between Drugs Is an Unlawful Product Hop Under Section 2

On May 22, 2015, in a much-watched case, the Second Circuit upheld a preliminary injunction against Actavis PLC and its wholly owned subsidiary, Forest Laboratories, LLC (collectively “Actavis” or “Forest”), finding that...more

6/5/2015 - Actavis Inc. Anticompetitive Behavior Generic Drugs Pharmaceutical Industry Preliminary Injunctions Product Hopping Section 2 Sherman Act

A Split FTC Accepts Fix-It-First Divestiture Remedy for Cigarette Merger

The Federal Trade Commission (“FTC”) accepted on Tuesday from Reynolds American Inc. (“Reynolds”) and Lorillard Inc. (“Lorillard”), subject to final approval, a Consent Order settling the agency’s significant competitive...more

5/30/2015 - Acquisitions Antitrust Division Antitrust Investigations Consent Order Divestiture FTC FTCA Mergers RJ Reynolds Settlement Offer The Clayton Act Tobacco

FTC Flushes McWane in a Big Eleventh Circuit Exclusive Dealing Win

The situations where exclusive dealing policies, explicit or tied to an aggressive discounting program, cross the line under the rule-of-reason remain far from clear. Because it involved appellate review of a Federal Trade...more

4/23/2015 - Appeals Distributors Exclusive Dealing Agreements FTC Manufacturers Monopolization

FTC Settles Radioactive Allegations Against Cardinal Health with a Near Record-Breaking Disgorgement Agreement

In a 3-2 decision, as part of its aggressive antitrust enforcement in health care industries, the Federal Trade Commission (FTC or the Commission) announced that Cardinal Health, Inc. (Cardinal) agreed to pay $26.8 million to...more

4/22/2015 - Antitrust Litigation Cardinal Health Disgorgement Enforcement Actions FTC Health Care Providers Healthcare Pharmaceutical Industry Price Manipulation

Hospital Wins First Round Against Largest Rival in Antitrust Suit Alleging Illegal Exclusive Dealing Agreements with Insurers

The waves of change affecting health care providers include reimbursement and funding developments, the impact of the Affordable Care Act, technological and medical advances, provider network design transformations imposed by...more

3/31/2015 - Affordable Care Act Antitrust Litigation Antitrust Provisions Exclusive Dealing Agreements FTC Health Care Providers Health Insurance Healthcare Hospitals

Supreme Court to Hear Argument on March 31 Whether to Overrule Brulotte v. Thys, Co.

Fifty years ago, the Supreme Court held in Brulotte v. Thys Co., 379 U.S. 29 (1964) that a license agreement requiring royalty payments for use of a patented invention after expiration of the patent term is unlawful per se. ...more

3/26/2015 - Brulotte IP License Kimble v Marvel Enterprises License Agreements Marvel Comics Patents SCOTUS

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