Antitrust and Competition Newsletter - August 2013

by Orrick, Herrington & Sutcliffe LLP

Top Story

China’s Anti-Monopoly Law: No Longer Just Merger Control?
Until this year, China's enforcement activities in the field of antitrust, particularly as these have affected foreign companies, had been mainly focused on merger control with merger filings handled by MOFCOM. But the first half of 2013 has seen a notable increase in the scope of enforcement of China's AML and the involvement of regulatory bodies other than MOFCOM. Read more >>

Global Developments

United States

SCOTUS Holds That Class Action Waivers in Arbitration Agreements Are Enforceable
On June 20, 2013, in American Express Co. v. Italian Colors Restaurant, No. 12-133 (S.Ct. June 20, 2013) the U.S. Supreme Court held that an arbitration agreement that precludes class arbitration is enforceable under the Federal Arbitration Act, even if it would be too expensive for each individual plaintiff to pursue arbitration on its own. Read more >>

SCOTUS Holds That Reverse Payment Settlements Are Not Presumptively Unlawful But Are Subject to the Rule of Reason
On June 17, 2013, in F.T.C. v. Actavis, 133 S.Ct. 2223 (2013), the U.S. Supreme Court handed down its long-anticipated ruling on “reverse payment” agreements in the context of pharmaceutical patent infringement cases. Read more >>

9th Circuit Affirms Summary Judgment Against Dealer’s Robinson-Patman and Sherman Act Claims Based on Manufacturer’s Preferential Pricing to Competitor
On July 19, 2013, in Gorlick Distribution Centers, LLC v. Allied Exhaust Systems, Inc., No. 10-36083 (9th Cir. July 19, 2013), the 9th Circuit affirmed a district court decision granting Allied summary judgment against Gorlick’s Robinson–Patman Act and Sherman Act claims asserting that Allied received better pricing for the same auto parts Gorlick purchased from the same manufacturer. Read more >>

9th Circuit Holds That a “Hybrid” License Agreement Requiring Undiscounted Post-Expiration Royalties Is Presumptively Unenforceable
On July 16, 2013, the 9th U.S. Circuit Court of Appeals applied the U.S. Supreme Court’s holding in Brulotte—that requiring a licensee to pay royalties after the expiration of a patent is per se unlawful—and “join[ed its] sister circuits in holding that a so-called ‘hybrid’ licensing agreement encompassing inseparable patent and non-patent rights is unenforceable beyond the expiration of the underlying patent. Read more >>

FTC Commissioner Issues Proposed Policy Statement Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act
On June 19, Federal Trade Commissioner Joshua Wright issued a proposed policy statement regarding “unfair methods of competition” under Section 5 of the FTC Act. Read more >>

FTC Enters Into Consent Order Regarding Information Exchange Pursuant to “Unfair Methods of Competition” Prong of Section 5 of the FTC Act
On June 5, 2013, the Federal Trade Commission entered into a Consent Order with Bosley, Inc. regarding information exchanges with a competitor, Hair Club. This Consent Order demonstrates the FTC’s exercise of its enforcement authority under Section 5 to attack conduct that it deems to be an “unfair method of competition” but for which it would be unable to prove a violation of the Sherman Act. Read more >>

FTC, DOJ, White House and Congress Take Action to Regulate the Conduct of Patent Assertion Entities
The Federal Trade Commission, Department of Justice, White House and Congress have recently addressed the conduct of “patent assertion entities.” Washington, D.C., is now moving to rein in what is widely considered to be abusive behavior by some PAEs. Read more >>

DOJ Announces Statistics on Robust Criminal Antitrust Enforcement in 2012
The U.S. Department of Justice recently reported its 2012 enforcement statistics. All told, DOJ recovered over $1.3 billion in 2012. This appears to be an all-time record (at the least, it is the highest number since 2003). Read more >>


Commission Imposes Fines for “Reverse Payments” on Lundbeck and Producers of Generics
On June 19, 2013, in its first “reverse payments” case, the European Commission imposed fines of €146 million on Danish pharmaceutical company Lundbeck and on several producers of generic medicines for violating EU competition rules by entering into settlement agreements that delayed the marketing of generic versions of Lundbeck’s branded anti-depressant, citalopram. Read more >>

Commission Issues Proposals to Facilitate Antitrust Damage Claims
On June 11, 2013, the European Commission proposed a new Directive on private damages actions for breaches of EU competition law. If the directive is adopted, it will introduce some fundamental changes to the EU private enforcement regime. Read more >>

UK Competition Authority Publishes New Leniency Guidance
On July 8, 2013, the Office of Fair Trading, the UK’s primary competition authority, published new guidance on leniency applications in cartel cases following a consultation process launched in 2011. The new guidance clarifies and restructures the basic principles of leniency, the circumstances in which it is available and the conditions for its application. Read more >>


China’s National Development and Reform Commission Scrutinizes Infant Formula Pricing
China’s antitrust pricing regulator, the National Development and Reform Commission, is investigating alleged price fixing and anticompetitive practices by international producers of infant milk formula following concerns about high prices for consumers. Read more >>

China’s National Development and Reform Commission Launches Drug Pricing Probe
China’s National Development and Reform Commission has launched a wide-ranging investigation into the costs of medicines in China amid concerns about discriminatory pricing and abuse of intellectual property rights. Read more >>

China’s SAIC Investigating Tetra Pak for Abuse of Dominance
China’s national market regulatory agency, the State Administration for Industry and Commerce, has announced that it is investigating possible abuse of dominance by Tetra Pak. Read more >>

Chinese Trade Association Recruits Companies to Join UK Air Cargo Antitrust Class Action
The China Council for the Promotion of International Trade, Nantong Sub-Council, is recruiting qualified Chinese freight forwarders and trading companies from the city of Nantong to participate in the case of Emerald Supplies Limited & Southern Glasshouse Produce Limited v. British Airways Plc. Read more >>

Korean Plate Glass Manufacturers Fined for Rigging Prices
On June 10, 2013, Korea’s Fair Trade Commission announced that is has fined two major domestic plate glass manufacturers, KCC Corp. and Hankuk Industries Inc., a combined 38.42 billion won (US$34.24 million) for colluding on product prices. Read more >>

Google Acquitted of Charges of Alleged Anticompetitive Conduct in South Korea
Google has been acquitted of charges of alleged anticompetitive conduct brought against it in Korea two years ago. In April 2011, search operators NHN and Daum Communications accused Google of taking unfair advantage by making its own search engine the default on the Android operating system. Read more >>

Events and Publications

On Nov. 6, 2013, Of Counsel Howard Ullman will speak on a Commercial Law Web Advisor webinar about antitrust and intellectual property issues.

On Feb. 6, 2014, Of Counsel Howard Ullman will speak at the U.S. Advanced Antitrust Conference: Update on Antitrust Enforcement event.

In the June 18 edition of Law360, partner Philippe Rincazaux and Associate David Dubois authored an Expert Analysis article titled, “How EU Competition Law Applies To Data Collection Issues.”

In the July 6 edition of the Seattle Times, partner Jay Jurata authored an op-ed titled, “FTC Should Not Root Out Patent Trolls With a 'Caddyshack' Approach.”

Client Alert: “Private Actions in Competition Law: Developments in Disclosure and Timing of Defence in Litigation Proceedings,” June 6.

Client Alert: “Private Actions in Competition Law: European Commission Proposes New Directive on Antitrust Damages Actions in EU,” June 12.

Client Alert: “Reverse Payment Settlements Now Subject to Antitrust Scrutiny, But Lower Courts Left to Fill in the Blanks,” June 18.

Antitrust and Competition Newsletter: June 2013 edition

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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