Antitrust & Trade Regulation Civil Procedure

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A New Concept in Cartel Fining: “Direct EEA Sales Through Transformed Products”

On 9 July 2015, the Court of Justice of the European Union (CJEU) issued its judgment in InnoLux Corp. v Commission C-231/14P, confirming the existence of a new concept in cartel fining: “direct European Economic Area [EEA]...more

Northern District of California Upholds Assignment of Antitrust Claims to Indirect Purchasers

Portions of a reverse payment suit against Endo Pharmaceuticals and others were recently dismissed by Judge William H. Orrick of the Northern District of California. The case was brought by plaintiffs who allege that a...more

The Court of Justice’s Preliminary Ruling in Huawei v. ZTE: The Final Word?

The application of competition law to standard essential patents (SEPs) has been the subject of significant debate. The latest instalment was provided by the Court of Justice on 16 July 2015 with its much-anticipated...more

Newsletter: Cooley M&A Team News - July 2015

As discussed in our March 2014 and April 2015 newsletters, in the last few years, there have been numerous developments in the law and practice surrounding appraisal rights under Delaware law. That trend has continued with...more

Keurig Fights to Dismiss All Antitrust Claims Brought Against It

On July 9, 2015, the Southern District of New York heard oral argument on Keurig Green Mountain’s motions to dismiss the three complaints filed by the following plaintiffs: Keurig’s competitors (Treehouse Foods, Inc., Bay...more

Huawei v ZTE - CJEU Landmark Decision Provides New Ground Rules for Asserting Standard-Essential Patents in Europe

In a landmark decision issued on July 16, 2015, the Court of Justice of the European Union (CJEU) provided new guidelines on how patent infringement courts in Europe should deal with patent proprietors seeking injunctions or...more

Patent Defeats Antitrust in Latest Test at Supreme Court

In Kimble v. Marvel Entertainment, 576 U.S. ____ (2015), the U.S. Supreme Court considered whether to overturn Brulotte v. Thys, 379 U.S. 29 (1964), its 1964 decision holding that it was per se unlawful for a patent owner to...more

First Federal Appellate Court Holds a NonCash Reverse Payment Subject to Antitrust Scrutiny: Is the Third Circuit's Decision in...

Recently, the Third Circuit issued the first federal appellate decision interpreting the Supreme Court's landmark decision in FTC v. Actavis, Inc.[1], potentially greatly expanding the scope of settling parties in reverse...more

Buy One Get One (Discounted) Only Violates The Sherman Act If The Discount For The “Tied” Product Is Below Cost

In a recent opinion, Collins Inkjet Corp. v. Eastman Kodak Co., the Sixth Circuit held that differential pricing in a tying arrangement (i.e., “I will charge you less for printer replacement parts, but only if you buy all of...more

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

Party Waived Right to Compel Arbitration by Waiting to Raise the Defense Until After Class Certification and Shortly Before Trial

After two years of litigation and extensive pretrial discovery, the Tenth Circuit held that cable company Cox Enterprises had waived its right to compel arbitration in an antitrust class action. The opinion is a cautionary...more

Perfecting the (European) Class Action

Last month, I got to experience what I consider a career highlight: I was invited to speak on “Perfecting the Class Action” at Middle Temple. The spiel I gave would be familiar to readers here (it was a basic description of...more

Four Things You Should Know About FTC v. Sysco Corp.

On June 29, 2015, following an eight-day evidentiary hearing, a federal district court granted the Federal Trade Commission’s (FTC)request for a preliminary injunction to block an $8.2 billion proposed merger between the two...more

June 2015: ITC Litigation Update

ITC Introduces New Pilot Program for Modification and Advisory Opinion Proceedings for New and Redesigned Products. In order to obtain remedial relief at the ITC, a complainant must establish that products imported into the...more

Advertising Law - July 2015

Try, Try Again: Lawmakers Reintroduce Do Not Track Kids Act - A group of federal lawmakers reintroduced the Do Not Track Kids Act, a bill to amend the Children’s Online Privacy Protection Act (COPPA), with some changes...more

“And the Plaintiffs Don’t Have to Sue My Competitors Because? . . . .”

One of the pet peeves of antitrust defendants is that the joint-and-several liability rule often means that plaintiffs can pick and choose which defendants to sue. (Plaintiffs will say – that’s a design feature of the...more

U.S. Supreme Court Reaffirms Prohibition on Post-Expiration Patent Royalties, and the Vitality of Stare Decisis, in the Kimble...

On June 22, 2015, in a 6-3 decision in Kimble et al. v. Marvel Enterprises, LLC, 576 U.S. __ (2015), the United States Supreme Court reaffirmed its holding in Brulotte v. Thys, 379 U.S. 29 (1964), that it is per se patent...more

Court of Justice Finds Deutsche Bahn Dawn Raids Illegal

Commission’s dawn raids of Deutsche Bahn’s premises were illegal because improperly discovered documents triggered the action. Summary - On 18 June 2015, the Court of Justice of the EU (ECJ) partly allowed...more

Health Care and Legal Services Providers Challenge State Regulatory Boards on Heels of SCOTUS State Action Antitrust Immunity...

On February 25, 2015, the U.S. Supreme Court narrowed the scope of antitrust immunity for state regulatory boards whose members are active market participants in the occupation regulated by the boards. In North Carolina State...more

SCOTUS Reaffirms that in Antitrust Cases, It Gives Less Deference to Precedent

Yesterday, in Kimble v. Marvel Entertainment, LLC, the U.S. Supreme Court upheld the rule first announced in Brulotte v. Thys Co., 379 U.S. 29 (1964), that a patentee cannot collect royalties on sales made after expiration of...more

Clarity Put on Hold as FTAIA Conflict/Confusion Continues

The Foreign Trade Antitrust Improvements Act (FTAIA) was enacted in 1982 to help achieve clarity in the application of U.S antitrust laws to international trade. More than 30 years since that effort, the FTAIA has not...more

Cephalon and Teva's $1.2 Billion Consent Order with the FTC: Is it Really a Harbinger of Things to Come?

On June 17, 2015, the U.S. District Court for the Eastern District of Pennsylvania approved a consent order (the “Consent Order”) between the Federal Trade Commission and defendants Cephalon, Inc. and its parent, Teva...more

Collusion Course: The Limits of Hot Documents

Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil...more

Supreme Court Denies Review Regarding Question of the Reach of the Antitrust Laws to Foreign Price-Fixing Agreements

In response to petitions presented to the United States Supreme Court for review of two rulings by the Ninth and Seventh Circuit Courts of Appeals, the United States Supreme Court denied cert earlier this week regarding the...more

AlarMax’s Robinson-Patman Claims Against Honeywell Survive

AlarMax Distributors Inc. may pursue price discrimination claims under the Robinson-Patman Act (RPA) against Honeywell International Inc., a federal judge in Pennsylvania ruled last week. Fire and security product distributor...more

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