Susan E. Foster Partner

In our second installment covering the ABA's 65th Antitrust Law Spring Meeting, we provide some key takeaways from the sessions, specifically focusing on issues in mergers and acquisitions.

An article in Law360 by Barry J. Reingold, Thomas L. Boeder, Susan E. Foster, K. Shiek Pal and Catherine S. Simonsen, “Takeaways From The ABA Antitrust Spring Meeting: Part 2," address issues in mergers and acquisitions.

In a precedent-setting opinion, the U.S. Court of Appeals for the Ninth Circuit in Aerotec International, Inc. v. Honeywell International, Inc., affirmed the summary dismissal of a garden variety of antitrust claims brought by Aerotec.

United States antitrust law seeks to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage innovation by granting IPR holders a limited statutory right to exclude competition. Compared to many jurisdictions, United States law balances this tension more frequently in favour of the IPR holder. An extract from The Antitrust Review of the Americas 2015 - www.GlobalCompetitionReview.com.

The Antitrust Review of the Americas 2014 - 2015

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.

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.

In the most significant patent antitrust decision in decades, Federal Trade Commission v. Actavis, Inc., No. 12-416, 2013 WL 2922122 (June 17, 2013), the Supreme Court has held, by a 5-3 vote with Justice Alito recused, that reverse payment patent settlements are subject to antitrust scrutiny.  Although the Court rejected the Federal Trade Commission’s request that it go further and deem such settlements presumptively anticompetitive, the Court’s decision resolves a circuit split under which most courts had held that a settlement was not subject to antitrust review so long as it fell within the legitimate scope of the patent’s exclusionary power.  Monday’s decision expressly rejects that “scope of the patent” rule.

With two deft strokes, Vermont simultaneously increased the tools in its enforcement toolbox and dealt a significant blow to a well-known patent assertion entity (PAE).  First, Vermont filed suit against MPHJ Technology Investments, LLC, a PAE, alleging that the company violated the Vermont Consumer Protection Act, 9 V.S.A. §§ 2451 et seq.

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.

In a closely watched decision, a unanimous U.S. Supreme Court has reversed an 11th Circuit decision that invoked the state action doctrine to prevent the Federal Trade Commission (FTC) from challenging a state hospital authorities’ proposed acquisition of a competing hospital.

On November 20, 2012, the U.S. Court of Appeals for the Federal Circuit issued a decision in Ritz Camera & Image, LLC v. SanDisk Corp., No. 2012-1183, 2012 WL 5862779 (Fed. Cir. Nov. 20, 2012). They affirmed that direct purchasers of patented products have standing to pursue a Walker Process antitrust claim against the patent holder, even where the direct purchaser cannot be sued for patent infringement and otherwise lacks the ability to bring an action for declaratory judgment.

In the wake of the recent admissions by Barclays Bank PLC that its traders sought to manipulate the London Interbank Offered Rate ("LIBOR"), corporations and other investors are only now beginning to appreciate the magnitude of the scandal and to consider how it might impact their own investments.

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.

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.

International software piracy is a serious economic problem that distorts competition and costs the United States billions of dollars in lost jobs and wages.

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.

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.

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.

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.

The recent United States v. Manulife Financial Corporation case is an important reminder of the traps for the unwary under the "investment only" exemption under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act). The case, which was recently settled by Manulife, shows how narrowly the antitrust enforcement agencies (the Federal Trade Commission and the U.S. Department of Justice) construe this exemption. Understanding the scope of the exemption is important as M&A activity continues to increase.