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01.28.2014
Antitrust Counseling & Merger Clearance, Mergers & Acquisitions, Corporate Finance, Public Companies

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 7A of the Clayton Act, known as the Hart-Scott-Rodino (H‑S‑R) Antitrust Improvements Act of 1976 (the Act), will be increased.

08.09.2013
Antitrust Counseling & Merger Clearance, Corporate Finance

On July 22, 2013, the Federal Trade Commission challenged Solera Holdings’ acquisition of Actual Systems of America, Inc. (ASA), a competing provider of software used by the automotive recycling industry.

07.16.2013
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance, Business

On April 30, 2013, the Federal Trade Commission and the Department of Justice published their Hart-Scott-Rodino Annual Report Fiscal Year 2012 for the period from October 1, 2011 to September 30, 2012.  The annual report summarizes the actions of the Federal Trade Commission and Department of Justice that were conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal year 2012.

05.17.2013
Bankruptcy & Restructuring, Federal Tax, Investment Management, Private Equity, Litigation, Antitrust & Unfair Competition Litigation, LIBOR, Real Estate, Antitrust Counseling & Merger Clearance, Tax, Benefits & Compensation

In a self-described “unexpected” ruling for the defendants in the consolidated LIBOR proceedings, Judge Naomi Reice Buchwald has dismissed the private plaintiffs’ antitrust and Racketeer Influenced and Corrupt Organizations Act (RICO) claims and significantly narrowed the scope of the Commodity and Exchange Act (CEA) claim.

02.15.2013
Antitrust Counseling & Merger Clearance, Mergers & Acquisitions

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 8 of the Clayton Act, known as the Hart-Scott-Rodino (H‑S‑R) Antitrust Improvements Act of 1976 (the Act), will be increased.

09.10.2012
Antitrust Counseling & Merger Clearance, Life Sciences, Intellectual Property, Mergers & Acquisitions

The Federal Trade Commission (“FTC”) recently announced and asked for comments on proposed changes to the premerger notification rules under the Hart-Scott-Rodino Act (“HSR Act”).  The proposed rules would require pharmaceutical companies to report to the FTC and the Department of Justice ("DOJ") acquisitions of exclusive patent licenses in which the licensor retains the right to manufacture patented products for the licensee. 

06.21.2012
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance, Business

On June 13, 2012, the Federal Trade Commission and the Department of Justice published their Hart-Scott-Rodino Annual Report Fiscal Year 2011 for the period from October 1, 2010 to September 30, 2011.  The Annual Report summarizes Federal Trade Commission and Department of Justice actions conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal year 2011.  The number of HSR filings in fiscal 2011 increased by 24% over the number of filings in 2010.  And the agencies continue to enforce the HSR Act's notification requirements with respect to acquisitions of company stock by corporate officers and directors, often in an inadvertent "failure to file" situation.

This Update provides key highlights of the Annual Report and offers practical advice.

01.31.2012
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance

The Federal Trade Commission recently announced that the reporting thresholds under Section 7 of the Clayton Act, known as the Hart‑Scott-Rodino Antitrust Improvements Act of 1976, will be increased.

08.15.2011
Mergers & Acquisitions, Business, Antitrust Counseling & Merger Clearance, Private Equity, Antitrust & Unfair Competition Litigation

The FTC and the Antitrust Division of the U.S. Department of Justice recently announced final amendments to the Hart-Scott-Rodino Premerger Notification Rules, the Premerger Notification and Report Form and associated Instructions in order to streamline the Form and capture new information that will help the Agencies conduct their initial review of a proposed transaction's competitive impact.

06.27.2011
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance

The Department of Justice, Antitrust Division, recently updated its Policy Guide to Merger Remedies, the first update since 1994.

03.11.2011
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance

On February 15, 2011, the Federal Trade Commission and the Department of Justice published their Hart‑Scott‑Rodino Annual Report for Fiscal Year 2010 for the period from October 1, 2009 to September 30, 2010.  The Annual Report summarizes Federal Trade Commission and Department of Justice actions conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal year 2010.  The number of filings in fiscal 2010 increased by 63% over the number of filings in 2009, after two consecutive years in which the number of filings reported to the agencies had declined.

02.02.2011
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 7 of the Clayton Act, known as the Hart‑Scott-Rodino Antitrust Improvements Act of 1976 (the Act), will be increased.  The Act requires all parties to certain transactions, including mergers and acquisitions that meet or exceed the Act's jurisdictional thresholds, to notify the FTC and the Antitrust Division of the Department of Justice of their intentions and to wait a designated period of time before consummating those transactions.

10.27.2010
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance

Earlier this month, the Federal Trade Commission and the Department of Justice published their Hart‑Scott‑Rodino Annual Report for Fiscal Year 2009 for the period from October 1, 2008 to September 30, 2009. The Annual Report summarizes Federal Trade Commission and Department of Justice actions conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal 2009.

08.31.2010
Antitrust Counseling & Merger Clearance

On August 11, 2010, a California appeals court upheld most of a $21 million predatory pricing judgment against a Bay Area alternative weekly newspaper in Bay Guardian Co. Inc. v. New Times Media L.L.C., No. A122448, 2010 WL 3156631 (Cal. Ct. App. Aug. 11, 2010).  The case reinforced the need for companies doing business in California to tread lightly when considering pricing below cost, as the court based its ruling in part on the wide-reaching nature of California’s Unfair Practices Act.

04.29.2010
Antitrust Counseling & Merger Clearance, Corporate Finance, Public Companies, Business

On April 20, 2010, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice jointly released their proposed revisions to the Horizontal Merger Guidelines for public comment.

02.22.2010
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation

As of February 22, 2010, the reporting thresholds under Section 7 of the Clayton Act, known as the Hart Scott-Rodino Antitrust Improvements Act of 1976 (the Act), decreased.

01.29.2010
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

On January 21, 2010, the U.S. Department of Justice (DOJ) filed in federal court in Washington, D.C. a complaint and consent decree requiring two merging companies (Smithfield Foods (Smithfield) and Premium Standard Farms LLC (Premium Standard)) to pay $900,000 in civil penalties for violations of the "file and wait" provisions of the Hart‑Scott‑Rodino Antitrust Improvements Act of 1976.

11.11.2009
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance, Environmental Litigation, Infrastructure Project Development & Finance, Energy Litigation, Energy Project Permitting & Development, Energy Regulation & Policy, Energy, Environment, Energy & Resources, Litigation, Oil & Gas

In August 2009, the Federal Trade Commission (FTC) adopted a Final Rule prohibiting manipulative or deceptive behavior in the course of purchasing or selling wholesale crude oil, gasoline or petroleum distillates. In doing so, the FTC joins other federal agencies with similar rules already on the books, including the Commodities and Futures Trading Commission (CFTC) and the Federal Energy Regulatory Commission (FERC).

05.20.2009
Product Liability, Litigation, Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation, Advertising, Marketing & Promotions, Retail & Consumer Products, Consumer Protection, Appellate

On May 18, 2009, the California Supreme Court issued its long-awaited decision in In re Tobacco II Cases, __ Cal. 4th __, No. S147345 (May 18, 2009), which addresses the requirements for standing and reliance in class actions under California’s Unfair Competition Law (“UCL”), Business and Professions Code § 17200 et seq., as modified by California voters in 2004.

05.01.2009
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation

The Federal Trade Commission (FTC) may be rethinking its approach to resale price maintenance (RPM) agreements.  The FTC has scheduled a series of public workshops on RPM to examine, for the purposes of enforcing Section 1 of the Sherman Act and Section 5 of the FTC Act, how to best distinguish between those uses of RPM that benefit consumers and those that do not.

04.24.2009
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation

During his 2008 Presidential campaign, then-Sen. Barack Obama expressed his plan to “reinvigorate antitrust enforcement.”  See Statement of Sen. Barack Obama for the American Antitrust Institute. 

02.06.2009
Litigation, Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

The Third Circuit recently clarified the standards a district court should apply in deciding whether to certify a class under Federal Rule of Civil Procedure 23 (Rule 23) in In re Hydrogen Peroxide Antitrust Litig., __ F.3d __, 2008 WL 5411562 (3rd Cir. Dec. 30, 2008).  The court joined a growing number of circuits in holding that the "rigorous analysis" under Rule 23 requires courts to weigh factual and expert evidence and make findings as to whether plaintiffs can satisfy all elements of Rule 23 at the certification stage. 

01.22.2009
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation

The Federal Trade Commission (the "FTC") recently announced that the reporting thresholds under Section 7 of the Clayton Act, known as the Hart‑Scott-Rodino Antitrust Improvements Act of 1976 (the "Act"), and the civil penalty for failure to comply with the Act, will be increased.  The Act requires all parties to certain transactions, including mergers and acquisitions, to notify the FTC and the Antitrust Division of the Department of Justice and wait a designated period of time before consummating those transactions that meet or exceed the Act's jurisdictional thresholds.  The 2000 amendments to the Act require the FTC to revise the Act's jurisdictional and filing fee thresholds annually, based on the change in gross national product.  Certain related thresholds and limitation values in the Hart-Scott-Rodino ("H-S-R") rules will also be adjusted.  The increased thresholds will apply to all transactions that close on or after February 12, 2009.

01.13.2009
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

In a recent unpublished decision involving MySpace, the Ninth Circuit reaffirmed that a prior voluntary and profitable course of dealing between the parties is a prerequisite to establishing a refusal to deal case between competitors. 

12.23.2008
Retail & Consumer Products, Antitrust Counseling & Merger Clearance, Business, Advertising, Marketing & Promotions, Privacy & Security, Antitrust & Unfair Competition Litigation, Consumer Protection

The Federal Trade Commission recently proposed changes to the agency’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. The Guides will now explicitly apply to advertising through nontraditional media, such as blogs.

12.10.2008
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation, Litigation

The California Supreme Court recently granted review in Clayworth v. Pfizer, Inc., No. S166435 (Cal. Nov. 19, 2008), to decide an issue of first impression under California’s antitrust law: Can a defendant accused of price fixing avoid liability by demonstrating that the plaintiff passed on the entire alleged overcharge to its customers?

11.18.2008
Mergers & Acquisitions, Antitrust Counseling & Merger Clearance, Corporate Finance

The Federal Trade Commission and the Department of Justice recently released their Hart-Scott-Rodino Annual Report for Fiscal Year 2007 for the period from October 1, 2006 to September 30, 2007.

11.12.2008
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation, Litigation

As a presidential hopeful, Barack Obama promised to increase antitrust enforcement, stating: "We are going to have an antitrust division in the Justice Department that actually believes in antitrust law. We haven't had that for the last seven, eight years." (Reuters news release.) "As president, Obama and Biden will reinvigorate antitrust enforcement, which is how we ensure that capitalism works for consumers."

02.01.2008
Antitrust Counseling & Merger Clearance

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under the Hart‑Scott-Rodino Antitrust Improvements Act of 1976 (Act) will be increased, effective February 28, 2008.

10.03.2007
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance, Litigation, Technology Transactions & Privacy

A recent decision of the U.S. Court of Appeals for the Third Circuit (Broadcom Corp. v. Qualcomm Inc.) spells out the antitrust risks for firms that promise standards-setting organizations they will license their technology on fair, reasonable and nondiscriminatory terms, then renege on that promise.

08.30.2007
Litigation, Antitrust Counseling & Merger Clearance, Mergers & Acquisitions, Antitrust & Unfair Competition Litigation, Corporate Finance

Last week, a federal court released a public version of its 93-page opinion providing its reasons for denying the Federal Trade Commission's challenge to Whole Foods Markets' acquisition of organic grocer Wild Oats.

08.06.2007
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation, Consumer Protection, Appellate, Litigation

In a 5-4 ruling, the U.S. Supreme Court has overturned the nearly century-old antitrust precedent of Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), to hold that minimum vertical price restraints will be analyzed under the rule of reason. The Leegin Creative Leather Prods. v. PSKS, Inc., No. 60-480, slip op. (U.S. June 28, 2007) ruling continues the Court’s increasing skepticism of the per se rule and places vertical price restraints on the same level as vertical nonprice restraints (e.g., exclusive distribution agreements).

06.06.2007
Antitrust Counseling & Merger Clearance, Antitrust & Unfair Competition Litigation

On May 21, the U.S. Supreme Court handed down a 7-2 decision in an antitrust conspiracy case that may have broad implications for all civil lawsuits brought in federal court. The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, Case No. 05-1126, reversed a decision from the Second Circuit and upheld a district court's dismissal, at the pleading stage, of a putative nationwide class action alleging an antitrust conspiracy in the telecommunications industry. The case was properly dismissed, according to the Supreme Court, because the plaintiffs in their complaint "have not nudged their claims across the line from conceivable to plausible." Also in this case, the Supreme Court "retired" the 50-year-old pleading test of Conley v. Gibson that held that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

01.24.2007
Antitrust Counseling & Merger Clearance

The Federal Trade Commission recently announced that the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 will be increased, effective February 21, 2007. The H-S-R Act requires all parties to mergers or acquisitions that meet or exceed the Act's jurisdictional thresholds to notify the FTC and the Antitrust Division of the Department of Justice and wait a designated period of time before consummating the merger or acquisition. The 2000 amendments to the H-S-R Act require the FTC to revise the Act's jurisdictional and filing fee thresholds annually, based on the change in gross national product. Certain related thresholds and limitation values in the H‑S‑R rules will also be adjusted. The increased thresholds will apply to all transactions that close on or after February 21, 2007.

12.18.2006
Business, Public Companies, Litigation, Corporate Finance, Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

On December 7, 2006, the U.S. Supreme Court granted certiorari in Leegin Creative Leather Products v. PSKS, Inc., a potential landmark case challenging the long-standing "Dr. Miles" doctrine condemning resale price maintenance and minimum vertical price fixing as per se violations of Section One of the Sherman Act.

09.22.2006
Antitrust & Unfair Competition Litigation, Litigation, Technology Transactions & Privacy, Antitrust Counseling & Merger Clearance

The FTC recently found Rambus Inc., a developer and licensor of computer-memory technologies, guilty of violating the antitrust laws through its participation in a committee of the Joint Electron Device Engineering Council (JEDEC), convened to develop standards for dynamic random access memory (DRAM) devices. Rambus's scheme was designed to force all firms that made, used, or sold DRAMs that complied with the JEDEC standards to enter into licenses with Rambus to avoid patent infringement lawsuits. The total royalties, Rambus estimated, would have been in the billions of dollars, with individual DRAM manufacturers liable for hundreds of millions of dollars of license fees.

03.03.2006
Litigation, Patent Litigation, Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance, Intellectual Property, Patent

On March 1, 2006 the U.S. Supreme Court delivered an 8 to 0 decision in Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. __ (2006), rejecting the doctrine that tying a patented product to another product is per se unlawful. The Court held that "in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product."

01.26.2006
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance, Corporate Finance

The Federal Trade Commission recently announced that the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 will be increased, effective February 17, 2006. The Act requires all parties to mergers or acquisitions that meet or exceed the Act's jurisdictional thresholds to notify the FTC and the Antitrust Division of the Department of Justice and wait a designated period of time before consummating the merger or acquisition. The 2000 amendments to the Act require the FTC to revise the Act's jurisdictional and filing fee thresholds annually, based on the change in gross national product. Certain related thresholds and limitation values in the H-S-R rules will also be adjusted. The increased thresholds will apply to all transactions that close on or after February 17, 2006.

04.06.2005
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

Effective April 7, 2005, acquisitions of controlling interests in unincorporated entities, such as partnerships and limited liability companies, will be subject to the reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "H-S-R Act" or the "Act"). Amendments to the premerger notification rules under the Act, 16 C.F.R. Parts 801 – 803 (the "H-S-R Rules" or the "Rules"), will reconcile, as far as practicable, the treatment of unincorporated entities with the treatment of corporate entities under the Rules. These changes will likely result in more filings relating to the formation and acquisition of interests in unincorporated entities.

02.21.2003
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

In a settlement announced February 6, 2003, the Department of Justice and Gemstar-TV Guide resolved allegations of price-fixing, customer allocation and failure to comply with the waiting period required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "H-S-R Act"). The allegations stemmed from Gemstar's and TV Guide's conduct prior to their merger in July of 2000. Such cases are often referred to as "gun-jumping" cases.

11.01.2002
Antitrust & Unfair Competition Litigation, International, Antitrust Counseling & Merger Clearance

On October 30, 2002, the antitrust authorities of the United States and the European Union jointly issued a statement of Best Practices for coordination of procedural issues in merger reviews. The Federal Trade Commission, the Department of Justice and the European Commission intend to better coordinate the procedures for respective antitrust reviews of mergers and acquisitions that are subject to both jurisdictions. The goal of these agencies is that the Best Practices statement will reduce the likelihood of conflicting or inconsistent outcomes and will coordinate the timing of their respective investigations.

06.01.2002
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

On June 18, 2002, the Federal Trade Commission ("FTC") filed a lawsuit against Rambus Incorporated ("Rambus") alleging unfair competition. The lawsuit arises from Rambus's participation in JEDEC, a standard-setting organization, and Rambus's alleged failure to advise the organization or its members of certain patents and patent applications that Rambus believed covered the emerging synchronous dynamic random access memory ("SDRAM") standard.

05.14.2002
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

On April 23, 2002, the Department of Justice (the "Department") filed in U.S. District Court in Washington, D.C., a proposed settlement agreement requiring Computer Associates International, Inc. ("Computer Associates"), the acquiring party in a merger with PLATINUM technology International inc. ("PLATINUM"), to pay $638,000 in civil penalties for violations of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"). As part of the settlement, and in addition to payment of the civil penalty, Computer Associates will be prevented from agreeing on prices, approving or rejecting proposed customer contracts, and exchanging prospective bid information with all future merger partners. The agreement settles a civil antitrust lawsuit filed by the Department on September 28, 2001, alleging that Computer Associates exercised premature operational control of PLATINUM prior to the expiration of the waiting period under the HSR Act.

05.01.2000
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

On May 10, 2000, the Federal Trade Commission (the "Commission") accepted proposed consent decrees from five music distributors settling charges that the minimum advertised price provisions of their Cooperative Advertising Programs (the "MAP programs") were illegal. The five distributors at issue, Sony Music Distribution ("Sony"), Universal Music & Video Distribution, BMG Distribution, Warner-Elektra-Atlantic Corporation and EMI Music Distribution (collectively, the "Music Distributors" account for approximately 85 percent of the United States' prerecorded music market. In the early 1990s, many new music retailers entered the market precipitating a price war that led to significantly lower prices. According to the Commission's complaint, the Music Distributors adopted the MAP programs in 1995-1996 in order to stop the price war and stabilize or increase prices. These efforts were allegedly successful, and the retail and wholesale price for compact discs increased.

04.10.2000
Antitrust & Unfair Competition Litigation, Litigation, Antitrust Counseling & Merger Clearance

FEW mergers in recent years have attracted so much attention on both sides of the Atlantic as the merger between The Boeing Company and McDonnell Douglas Corporation, thereby demonstrating the extent to which antitrust laws have become international in scope and can become entangled in the politics of industrial policy. This merger created the world’s largest aerospace company and second largest defense supplier, and combined the last two remaining commercial jet airplane manufacturers in the United States.

05.01.1999
Antitrust & Unfair Competition Litigation, Antitrust Counseling & Merger Clearance

A quarter of a century after enactment of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "H-S-R Act" or "Act"), the filing thresholds under the Act have finally been revised. The amendments significantly increase the size of transactions subject to the H-S-R Act and relieve many smaller transactions from the Act's filing (and fee) requirements.