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 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

          September 8, 2014

          Credit Default Swap Class Action Clears Motions To Dismiss And Proceeds To Discovery

          By David Golden

          On Thursday, Judge Denise Cote of the U.S. District Court for the Southern District of New York refused to dismiss a class-action antitrust lawsuit involving the $21 trillion credit default swap (“CDS”) market, permitting the case to proceed to discovery.

          The plaintiffs in In re Credit Default Swaps Antitrust Litigation allege that some of the largest investment banks in the United States – including Bank of America, Citibank, Goldman Sachs, JPMorgan and Morgan Stanley – conspired to prevent price transparency and competition in the CDS market.  The individual plaintiffs are groups of CDS investors, including several public pension funds.

          A CDS is a financial tool to hedge credit risk.  The buyer of a CDS purchases the seller’s promise to pay if a “credit event,” such as a credit default, occurs during a specified time period.  In effect, a CDS is an insurance policy.

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          Categories: Antitrust Litigation

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