July 16, 2015

European Court Of Justice Holds Standard-Essential Patent Owner Can Abuse Its Position By Seeking To Enjoin Infringement

By Seth D. Greenstein

The European Court of Justice ruled today that the owner of a standard-essential patent abuses its dominant position when it seeks an injunction in an action for patent infringement against an infringer that has expressed genuine willingness to license the patents on fair, reasonable, and nondiscriminatory (“FRAND”) terms.

In Case C-170/13, Huawei Technologies Co. Ltd. v. ZTE Corp. (July 16, 2015), the Court of Justice held that such an abuse of a dominant position violates Article 102 of the Treaty on the Functioning of the European Union.  This is the first definitive statement by the European Court on an issue that has received close attention in United States courts and from the U.S. Department of Justice (“DOJ”).  Its opinion provides some of the most definitive guidance on negotiations of FRAND licenses and lawful licensing conduct – and stakes out perhaps the most aggressive posture on the consequences of a patent owner’s failure to follow that guidance.

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Categories: Antitrust Enforcement, Antitrust Litigation, International Competition Issues

    July 6, 2015

    The Antitrust Week In Review

    Here are some of the developments in antitrust news this past week that we found interesting and are following.

    Airlines Under Justice Dept. Investigation Over Possible Collusion.  Federal prosecutors are investigating possible collusion among airlines to limit seating, two years after the U.S. Department of Justice approved the latest in a wave of airline mergers, saying the combination would benefit consumers.  In letters sent to airlines, federal prosecutors have asked for documents from the last two years related to statements and decisions they have made about limiting capacity on flight routes.  By making it harder for passengers to find seats, airlines could restrain competition and increase fares.

    Apple ‘assessing next steps’ after e-books antitrust ruling.  Apple is assessing its next steps after the decision of the U.S. Court of Appeals for the Second Circuit affirming the district court decision that the iPad maker conspired with five publishers to increase e-book prices.  In a statement issued after the appellate court handed down its 2-1 decision, the company maintained that it did not conspire to fix e-book prices, as the U.S. Department of Justice contends.

    Study Suggests That Google Has Its Thumb on Scale in Search.  A study by top academics at Harvard and Columbia suggests that Google sometimes alters results to play up its own content.  The study, which was paid for by  Yelp, the online review website that is one of Google’s rivals, could renew calls for government regulators — in particular, the Federal Trade Commission — to reopen an investigation into Google for unfairly promoting its own services.  The study may also provide ammunition to antitrust regulators in Europe who have accused the company of antitrust violations.

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    Categories: Antitrust and Price Fixing, Antitrust Litigation

      July 1, 2015

      Antitrust Enforcers Sue Four Hospitals For Carving Up South-Central Michigan

      By Rosa M. Morales

      The Antitrust Division of the U.S. Department of Justice and the Michigan Attorney General’s Office are suing four Michigan hospital systems for allegedly engaging in antitrust violations by agreeing to refrain from advertising in each other’s territories, to the detriment of patient choice and health care benefits for patients and physicians alike.

      The complaint in United States & Michigan v. Hillsdale Community Health Ctr. et. al, asks the U.S. District Court for the Eastern District of Michigan to find that the hospitals’ agreements to limit marketing for competing healthcare services in south-central Michigan were per se unlawful under Section 1 of the Sherman Act.  Each of the four hospital systems operates the “only general acute-care hospital or hospitals” in its county.

      While three of the hospital systems being sued—Hillsdale Community Health Center (“Hillsdale”), Community Health Center of Branch County, Michigan (“Branch”), and ProMedica Health Center System Inc. (“ProMedica”)—have agreed to settle the charges, the fourth hospital— W.A. Foote Memorial Hospital d/b/a Allegiance Health (“Allegiance”)—has chosen to litigate.

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      Categories: Antitrust Litigation

        June 30, 2015

        Sysco Scraps US Foods Merger After FTC Victory In Court

        By Allison F. Sheedy

        Sysco Corp. announced yesterday that it is abandoning its plans to acquire food service rival US Foods Inc., following last week’s setback to the deal in federal court.

        In an opinion that closely tracked the FTC/DOJ Merger Guidelines, Judge Amit Mehta of the U.S. District Court for the District of Columbia granted the Federal Trade Commission a preliminary injunction to halt the proposed merger of nation’s two largest distributors of food and related supplies to restaurants and other foodservice establishments.  Sysco’s announcement that it was abandoning its plans to acquire its rival is no surprise, given the substantial hurdle imposed on the deal by the FTC’s victory in court.

        The 18-month-old proposed deal encountered regulatory scrutiny from the start.  Last February, Sysco and US Foods proposed a divestiture of 11 US Foods distribution facilities to a smaller competing foodservice company, Performance Food Group (“PFG”), as a “fix-it-first” remedy designed to allay the FTC’s concerns.  The FTC was not swayed, however, and decided to sue Sysco and Us Foods to block the deal.

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        Categories: Antitrust Litigation, Antitrust Policy

          June 29, 2015

          The Antitrust Week In Review

          Here are some of the developments in antitrust news this past week that we found interesting and are following.

          Judge Halts Sysco’s Proposed Merger With US Foods.  A federal judge has ordered a preliminary injunction to block Sysco’s proposed merger with US Foods, dealing a potentially fatal blow to what would be a union of the two biggest food distribution companies in the United States.  The injunction is a victory for the Federal Trade Commission, which sued in February to block the deal on the grounds that it would lead to higher prices and worse service for customers like restaurants and schools.

          Anthem confident, but experts see antitrust hurdles to Cigna deal.  U.S. health insurer Anthem is dismissing concerns that buying smaller competitor Cigna would be considered anticompetitive, despite the view of antitrust experts that the combination would earn regulatory scrutiny.  Any merger could require asset sales and would be complicated by potential deals among other insurers.

          Getty Images takes Google grievance to EU antitrust regulators.  Getty Images has become the latest company to take its grievances with Google to European Union antitrust regulators as it accused the world’s largest Internet search engine of favoring its own images service at the expense of rivals.  The complaint comes as the European Commission waits for Google to respond to charges of abusing its market power in a dozen EU countries since 2007 by distorting search results to favor its shopping service.

          U.S. gov’t settles antitrust charges with three Michigan hospitals.  Although three Michigan hospital systems have settled charges by the U.S. Department of Justice that they violated antitrust law by agreeing not to advertise in each other’s areas, a fourth will fight the allegations.  Michigan’s Hillsdale Community Health Center, Community Health Center of Branch County, Michigan, and ProMedica Health System Inc, which has two hospitals in the area, are settling the charges.

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          Categories: Antitrust Enforcement, Antitrust Litigation, General, International Competition Issues

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