Exclusive Dealing Agreements

News & Analysis as of

Antitrust & Competition Newsletter - April 2015

U.S. Supreme Court Holds That State Action Immunity Does Not Apply to State Boards If the Board Is Controlled by Active Market Participants - On Feb. 25, 2015, the U.S. Supreme Court held, in a 6-3 decision, that a state...more

Pfizer’s strategic response to the threat of generic competition upheld by the Federal Court

On 25 February 2015, the Federal Court handed down its much-anticipated judgment in the matter of ACCC v Pfizer Australia Pty Ltd. In dismissing the Australian Competition and Consumer Commission’s (ACCC) allegations, Justice...more

Antitrust Violation Found "Fitting": Use of Exclusivity Program with Distributors in Pipe Fitting Market Found to Violate...

Government competition authorities in the United States are sometimes challenged, if not criticized, for not pursuing claims based on single firm conduct in maintaining a monopoly. The recent opinion of the United States...more

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

Court Sacks Photographers’ Antitrust Claims Against the NFL and its Member Teams

Allegations of conspiracy to restrain trade and exclusive dealing may read like textbook antitrust claims, but if the allegations are made by a plaintiff who is not an “efficient enforcer” of the antitrust laws, the complaint...more

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

Court of Chancery Speaks to Exclusivity Agreements in Public Company Acquisitions

You reach the point in the sale of almost every public company where the buyer wants an exclusivity agreement. Lawyers representing the target wring their hands about the effect of an exclusivity agreement and the effect of...more

Top Components of Effective Antitrust Corporate Compliance Programs, Part 1

With DOJ’s Antitrust Division and the FTC ramping up antitrust enforcement, it is critical for companies to take a hard look at their compliance programs and update them on a regular basis to avoid potential antitrust...more

Northern District of California Raises the Bar on Exclusive Dealing Claims

In PNY Technologies, Inc. v. SanDisk Corp., Case No. C-11-04689 (N.D. Cal. Apr. 25, 2014) (Orrick, J.), the court dismissed PNY’s exclusive dealing and attempted monopolization claims.... ...The case is significant...more

Financial Services Law

D.C. Circuit Court Upholds Fed’s Debit Card Fee Cap, Antiexclusivity Rules - Dealing a blow to merchants nationwide, the D.C. Circuit Court of Appeals reversed a lower court and upheld the rules promulgated by the...more

FDA Draft Guidance Proposes Change to Combination Product Exclusivity Policy

New market exclusivity opportunities emerge for pharmaceutical companies. In draft guidance released by the Food and Drug Administration (FDA or the Agency) on February 24, 2014, the Agency proposed changes to its...more

Physician Obtains Injunction Preserving Clinical Privileges Despite Attempted Exclusive Contract

Despite the many cases acknowledging the right of hospitals to enter into exclusive contracts, there is always the issue of what happens with the existing clinical privileges and medical staff memberships of the physicians...more

FDA Proposes Policy Change Concerning 5-Year NCE Exclusivity for Certain Fixed-Combination Drugs

Prompted by citizen petitions filed by Ropes & Gray and by two other companies, FDA issued draft guidance proposed a change in the Agency’s interpretation of 5-year new chemical entity (“NCE”) exclusivity as applied to...more

FDA Intends to Grant Five Years of Market Exclusivity to Fixed-Dose Combination Drugs Containing One New Drug Substance

Fixed-dose combination drug products are becoming increasingly important in the treatment of patients with diabetes, cardiovascular disease, and infectious disease. Within the last two decades, the U.S. Food and Drug...more

FTC Announces Increased HSR Thresholds

The Federal Trade Commission (FTC) announced on January 17, 2014, the revised transaction thresholds that trigger the requirement to file a premerger notification and report form under the Hart-Scott-Rodino Antitrust...more

Exclusive Dealing Agreements: Ease of Termination on Par With Duration

As a general principle, exclusive dealing agreements spanning less than one year in duration do not violate state or federal antitrust laws, regardless of the parties’ market power. However, a recent decision from a federal...more

De Facto Exclusive Dealing: What a Difference a Day Makes

In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media...more

Exclusive Contracts Raise Anti-Kickback Issues

A new OIG Advisory Opinion 13-15, the OIG has resurrected the issue of whether awarding exclusive contracts to hospital based providers involves remuneration in exchange for referrals, because it grants the opportunity for...more

Antitrust Exclusive Dealing Claims Given "Short-Shrift" in Dismissal. How Long Is Short? An Analysis in Search of Context

The Federal District Court for the Central District of California, sitting in Santa Ana, recently dismissed antitrust claims in an action between competitors in a market described as the management and distribution of...more

Competition Issues In Resources Projects Exclusivity In Supply Chains – July 2013 (Australia)

INTRODUCTION - Mining projects require rail and port access to get the resource from the mine to the export market. Owners and users alike are constantly looking for ways to improve the efficiency of the supply chain...more

Monopolization Claims Against In-Flight Internet Provider Dismissed

In Stewart v. Gogo, Inc., 2013 U.S. Dist. LEXIS 51895 (N.D. Cal. Apr. 10, 2013) (Chen, J.), a putative class of airline passengers challenged Gogo’s long-term exclusive contracts to provide Internet access connectivity to...more

Commentary on the new UAE Competition Law (Federal Law No. (4) of 2012)

Introduction - The UAE’s first antitrust/competition legislation recently came into effect on 23 February 2013. Federal Law No. (4) of 2012 (Law), primarily regulated by the Ministry of Economy, aim to prohibit and...more

When Price Fixing Is Not Price Fixing

According to a recent decision by Judge Posner in the Seventh Circuit in In re Sulfuric Acid Antitrust Litigation, the following scenario is not subject to the per se rule against price fixing: - Companies outside the...more

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