Antitrust & Trade Regulation Constitutional Law

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DOJ Acknowledges in Proposed Jury Instructions That Dissemination of Truthful and Non-Misleading Off-Label Use Information Is Not...

For years, the U.S. Food and Drug Administration (FDA) has taken the position that a medical device (or drug) manufacturer that promotes an FDA-approved device (or drug) for an unapproved use violates the Federal Food, Drug,...more

Virginia’s Certificate of Need Laws May Stay, Fourth Circuit Says

On January 21, the U.S. Court of Appeals for the Fourth Circuit upheld Virginia’s Certificate of Need (CON) laws, ruling that the scheme does not illegally discriminate against out-of-state health care providers. See Colon...more

Cybersecurity: What is on the horizon for 2016

JD Supra recently published an attorney perspective piece on defining cybersecurity issues for 2016. It should come as no surprise that resolution of insurance coverage issues made the list. Despite a plethora of data...more

The FTC Pressures Press Interactions, Defies Commercial Speech Doctrine

On Tuesday, the FTC joined the Department of Justice and several other federal agencies in announcing numerous recent and ongoing actions against dietary supplement marketers. The FTC, in its discussions, highlighted a case...more

NJ Developer Gets Green Light for Antitrust Suit as Rival Supermarket Owner Seeks to Block Wegmans

The Third Circuit Court of Appeals issued a precedential opinion last week when it ruled that a New Jersey real estate developer had standing to pursue antitrust claims against the owner of a nearby ShopRite who engaged in...more

Third Circuit Provides Clarity to “Inextricably Intertwined” Basis of Antitrust Injury in Partially Reinstating Claims Against...

On November 12, 2015, the Third Circuit Court of Appeals issued an opinion partially reversing the dismissal of the plaintiff’s claims in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., finding that plaintiff Hanover...more

Banking & Financial Services E- Note - October 2015

Last week the Federal Trade Commission ("FTC") issued its muchanticipated Staff Guidance on what sort of supervision states should provide to regulatory boards in order for those boards to qualify for antitrust...more

FTC Provides Guidance Regarding Antitrust Compliance for State Regulatory Boards

In North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), the Supreme Court held that the North Carolina Board of Dental Examiners (“Board”), a state agency, was not exempt from federal antitrust laws...more

Court Rejects Claim that a Doctor’s Loss of Privileges is an Antitrust Injury

A federal appeals court held that a doctor who lost his privileges at a local hospital failed to establish an antitrust injury sufficient to confer standing under the Sherman Act. The United States Court of Appeals for the...more

Ruling on Economic Favoritism Puts ‘NC Dental’ Back in Spotlight

In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the...more

Advertising Law - August 2015 #2

FDA Wants to Pour Some Sugar on the Nutrition Label - Adding to the proposed changes to the Nutrition Facts label—the first tweaks in 20 years—the Food and Drug Administration has suggested yet another: adding the...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

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

For Here or To Go? Senators Introduce Bill to Ban Noncompete Agreements, Increase Mobility For Sandwich Makers and Other Low-Wage...

Congress is getting into the non-compete business.  Citing the use of non-compete agreements by companies such as Jimmy John’s sandwich shops, Senate Democrats recently introduced a bill—called the Mobility and Opportunity...more

Focus on Tax Controversy and Litigation - Supreme Court Decides Maryland v. Wynne and Rules that Maryland Tax Scheme Is...

In This Issue: - Maryland’s Tax Scheme Ruled Unconstitutional - “FTC Generator” Case Update - FSA Rules that Equitable Disgorgement May be Deductible Expense - District Court Upholds Attorney Client...more

Injunction Blocks Implementation of Texas Telemedicine Regulations

Late last week, Texas telemedicine practitioners received a temporary reprieve from a new regulation issued by the Texas Medical Board (the “Board”) when a Texas federal court prohibited implementation of the new rule that...more

June Antitrust Bulletin

Two recent decisions by the U.S. District Court for the Western District of Wisconsin reached back decades for precedent to allow a novel price discrimination suit under the Robinson-Patman Act to proceed. Woodman’s Food...more

Damned If You Do, Damned If You Don’t: Why The FTC’s Lack of Privacy Regulations May Lead Some Businesses To Abandon Best Data...

I chose to write my privacy law paper on the FTC and its seemingly limitless enforcement authority. Specifically, I argued that the FTC’s lack of clear regulations makes it difficult, if not impossible, for companies to be...more

Supreme Court Preserves States' Power to Protect Consumers But in the Process Blurs Federal Preemption Analysis

The Supreme Court once again showed that, when it comes to the antitrust laws, the consumer is king. In Oneok, Inc. v. Learjet, the Court was asked to decide where state antitrust laws end and federal regulation begins. The...more

Justices Spar Over Pre-Emption as High Court Allows State Law Antitrust Claims to Proceed Against Interstate Pipelines

On April 21, 2015, in a 7-2 decision authored by Justice Breyer, the U.S. Supreme Court ruled that state law antitrust claims brought against interstate pipeline companies by a group of manufacturers and other retail buyers...more

Justices Spar Over Pre-Emption as High Court Allows State Law Antitrust Claims to Proceed Against Interstate Pipelines

The recent 7-2 U.S. Supreme Court decision in Oneok, Inc. et al. v. Learjet, Inc. et al. ruled that state law antitrust claims brought against interstate pipeline companies by a group of manufacturers and other retail buyers...more

ONEOK, Inc. v. Learjet, Inc.: The Supreme Court Holds that Natural Gas Jurisdictional Sellers are Subject to State Antitrust...

On April 21, 2015, the Supreme Court issued its much-anticipated decision in ONEOK Inc. v. Learjet, Inc. addressing the extent to which the Natural Gas Act (“NGA”) preempts state antitrust claims brought against...more

Physician Non-Compete Agreements and Antitrust

Antitrust claims based on employee non-compete agreements generally fail because the plaintiff cannot establish antitrust standing. In the Eleventh Circuit, the test for antitrust standing requires the plaintiff show (1)...more

Third Circuit Remands Class Certification Ruling in Blood Reagents Price-Fixing Case

On Wednesday, April 8, 2015, the Third Circuit Court of Appeals vacated a district court’s order certifying a class of direct purchasers of blood reagents in a price-fixing suit against Ortho-Clinical Diagnostics Inc. In re...more

Ninth Circuit Hears Oral Argument in O’Bannon v. NCAA

On March 17, 2015, a Ninth Circuit panel consisting of Chief Judge Sidley R. Thomas, Circuit Judge Jay S. Bybee and Senior U.S. District Judge Gordon J. Quist, of the Western District of Michigan heard oral argument in...more

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