October 17, 2014

Brussels Antitrust Seminar Demonstrates Shifting European Landscape For Competition Enforcement In Wake Of ECJ MasterCard Judgment

A View from Constantine Cannon’s London Office

By Irene Fraile and Richard Pike

The recent judgment by the European Court of Justice (“ECJ”) in the MasterCard case is sparking a lively debate about how antitrust enforcement of payment system regimes should evolve in the European Union, as evidenced by an antitrust seminar co-sponsored by Constantine Cannon in Brussels on Monday.

The ECJ’s MasterCard judgment was rendered on September 11, 2014, when it dismissed MasterCard’s final appeal against an antitrust infringement decision adopted by the European Commission in 2007 regarding MasterCard’s Multilateral Interchange Fees (“MIFs”) for cross-border payment card transactions. MIFs are the fees paid by merchants’ banks to card-issuing banks to cover the cost of processing card payments. The ECJ held that the level of those fees had “restrictive effects on competition.”

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Categories: Antitrust Enforcement, Antitrust Litigation, International Competition Issues

    October 1, 2014

    Apple’s Appellate Challenge Of E-Books Monitor Moves To Procedural Battlefield

    By Allison F. Sheedy

    Apple’s battle in the U.S. Court of Appeals for the Second Circuit against a court-appointed external antitrust compliance monitor is winding its way through a procedural thicket as the Second Circuit prepares to consider the merits of Apple’s appeal.

    Apple is appealing an order by Judge Denise Cote of the U.S. District Court for the Southern District of New York refusing to disqualify the monitor the court appointed to oversee Apple’s antitrust compliance policies, after finding in a bench trial that U.S. Department of Justice and Attorneys General of various states had proved that Apple violated Section 1 of the Sherman Act and related state antitrust laws by conspiring with the publishers to raise e-book prices.

    Apple’s disputes with the monitor, Michael Bromwich, began almost as soon as he was appointed by the Judge Cote last fall. Apple complained from the start that he overstepped his mandated responsibilities, and charged exorbitant fees, with no oversight, which Apple is solely responsible for paying. Apple also argued that Bromwich lacked impartiality because of ex parte communications he engaged in with both Judge Cote and the government plaintiffs.

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    Categories: Antitrust Litigation

      September 30, 2014

      Google’s Settlement Offer Sparks European Debate

      A View from Constantine Cannon’s London Office

      By James Ashe-Taylor and Ana Rojo Prada

      Debate continues over Google’s settlement offer in search and advertising investigation as European Commission indicates that more is needed.

      Google and Rupert Murdoch’s News Corp have traded blows publicly following comments by the European Commission indicating that it would reopen its antitrust investigation into Google’s search and advertising business.

      Outgoing Competition Commissioner Joaquin Almunia has indicated in interviews over the last week that Google’s proposals to settle the investigation do not fully address the Commission’s concerns.

      In an open letter to Almunia, News Corp Chief Executive Robert Thomson called Google “a platform for piracy and malicious networks.”  He also alleged that Google deliberately made it difficult to “access information independently and meaningfully,” and that its sudden changes to the ranking and display of search results prejudiced small companies.

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      Categories: Antitrust Enforcement, International Competition Issues

        September 25, 2014

        Antitrust Regulators Taking Aim At Drug Companies’ “Forced Switching”

        By Rosa M. Morales

        Signs continue to accumulate that antitrust regulators are on the lookout for innovative anticompetitive tactics by pharmaceutical companies seeking to delay entry of lower-priced generic drugs.

        This growing interest by federal and state regulators in policing the anticompetitive suppression of generic drugs was the subject of a recent post on this blog by Ankur Kapoor.  Among the antitrust enforcement actions analyzed was a reverse-payment case filed earlier this month by the New York State Attorney General against Actavis and its recently acquired, wholly-owned subsidiary Forest Laboratories.

        In recent comments, Eric Stock, chief of the Antitrust Bureau of the New York State Attorney General’s Office shed light on what antitrust enforcers may be looking at when he discussed “forced switching” – one of the anticompetitive tactics used by the pharmaceutical companies that is attracting the interest of antitrust enforcers.  “Forced switching” occurs when pharmaceutical companies “force” the use of new branded drugs by either pulling older branded versions from the market or reducing their supply.

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        Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

          September 18, 2014

          Regulators Prescribing Higher Dose Of Pharmaceutical Antitrust Enforcement

          By Ankur Kapoor

          Antitrust enforcers returned to their offices after Labor Day, refreshed and ready to tackle what they view to be anticompetitive practices by pharmaceutical companies to delay entry of lower-priced generic drugs.

          In addition to recent enforcement efforts by antitrust regulators, two federal courts have issued opinions supporting the theory underlying the enforcers’ new efforts to police so-called “reverse payments.”

          On September 8, 2014, the Federal Trade Commission (FTC) filed an antitrust complaint in the U.S. District Court for the Eastern District of Pennsylvania against AbbVie Inc. (a spinoff of Abbott Laboratories’ portfolio of proprietary pharmaceutical and biologic drugs) and generic giant Teva Pharmaceuticals. FTC v. AbbVie Inc. is the FTC’s first action against “reverse-payment” or “pay-for-delay” agreements between patent-holders and generic competitors since the FTC’s 2013 Supreme Court victory in FTC v. Actavis, Inc., which held that such agreements could run afoul of the antitrust laws under certain circumstances.

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          Categories: Antitrust Enforcement, Antitrust Litigation

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