With the departure of now former Chair Edith Ramirez in early February 2017, among the most discussed vacancies in the new administration is the post of permanent chair of the Federal Trade Commission (FTC). According to reports, one leading candidate is Acting Chair Maureen Ohlhausen, whose selection could have significant implications for FTC policy areas, particularly with respect to disgorgement remedies in antitrust cases.
The Second Circuit Court of Appeals recently overturned a federal district court judgment in a class action antitrust lawsuit against two Chinese companies accused of conspiring to fix the price and output of vitamin C sold into the United States. The court held that the companies were compelled to fix the price and output by Chinese law, and therefore their conduct was outside the antitrust jurisdiction of the US federal courts.
The Department of Justice and the Federal Trade Commission recently issued proposed updates to their Antitrust Guidelines for the Licensing of Intellectual Property. The revisions do not substantively modify the general principles of the 1995 guidelines; nor do they address some of the hottest topics at the intersection of antitrust and IP law – in particular, conduct involving standard-essential patents and patent assertion entities.
The US Federal Trade Commission, the Chinese Ministry of Commerce and the European Commission have all approved NXP Semiconductors NV's takeover of Freescale Semiconductor Ltd on the condition that NXP divested its radio frequency power amplifier assets to alleviate the agencies' competition concerns. The convergence of the three antitrust agencies' remedies should be encouraging for companies considering global transactions.
A February 2015 Supreme Court decision held that state regulatory boards run by "a controlling number" of "active market participants" can qualify for an antitrust exemption only if they are "actively supervised" by the state. But the court left the content of those key terms vague. The Federal Trade Commission staff has now issued guidance on how it believes the decision should be implemented.
The US Federal Trade Commission (FTC) recently issued its first set of principles governing enforcement of 'unfair methods of competition' under Section 5 of the Federal Trade Commission Act. The statement – which is only 324 words long – summarises the principles that have long guided the FTC's enforcement decisions in this area, but provides little concrete guidance to the business community or the antitrust bar.
The Supreme Court recently ruled that state professional boards controlled by private entities must be supervised by state governments to fall within the scope of the state action antitrust immunity doctrine. Companies and private market actors that participate on state regulatory boards as part of hybrid agencies or in trade associations should be aware of the decision's potential impact.
US Secretary of Commerce Penny Pritzker has announced that China has agreed to improve enforcement of its Anti-monopoly Law in order to provide greater predictability, fairness and transparency for foreign companies operating in China. In the coming months and years, US-China interaction in the antitrust field is expected to continue, both through high-level dialogues and at the antitrust agency level.
The Federal Trade Commission (FTC) recently announced that it is seeking public comments on a planned study to assess the effectiveness of divestiture remedies in mergers. The FTC proposes to review nearly 100 consent orders issued between 2006 and 2012, with information-gathering approaches varying based on the industry.
On January 8 – one year since the filing of the lawsuit and 18 months since the merger closed – a US federal judge declared that Bazaarvoice violated the Clayton Act by acquiring its main rival, PowerReviews. The $168 million deal was challenged even though PowerReviews was too small to require a pre-merger notification filing with the federal antitrust enforcers.
The Obama administration delivered on its promise to reinvigorate antitrust enforcement during its first term. The Antitrust Division of the Department of Justice and the Federal Trade Commission both raised the bar on merger and single-firm conduct enforcement, and the Antitrust Division continued the previous administration's strong enforcement against cartels. These trends now look set to continue during Obama's second term.
The US Court of Appeals for the Third Circuit recently issued a decision holding that pharmaceutical patent settlements that restrict generic entry and contain a payment to the generic company are presumptively unlawful under the antitrust laws. The decision adopted the long-advocated legal position of the Federal Trade Commission.
Over the past few years the Federal Trade Commission has placed a high priority on reining in pharmaceutical litigation settlements that involve payments from the branded company to the generic company, together with an agreed date for generic entry. Despite its reversals, it continues to investigate alleged anti-competitive conduct in the industry and to pursue creative ways to challenge it under the antitrust laws.
The Federal Trade Commission (FTC) is consulting on the specific problem of patent hold-up in standard-setting organisations. The FTC and Department of Justice have recognised that the standard-setting process furthers innovation and leads to better products and more competition. However, they have also expressed concern that standard-settings organisations can raise antitrust risk.
The Federal Trade Commission has approved Google Inc's proposed acquisition of AdMob Inc following a six-month second request investigation. In addition to a press release announcing the decision, the commissioners took the fairly unusual step of issuing a closing statement to explain the decision - revealing that the commissioners' primary rationale for clearing the deal was the entry of Apple Inc into the relevant market.
In a landmark ruling the Federal Trade Commission (FTC) has held that it has the power to order compulsory licensing at FTC-determined maximum rates as a remedy for certain monopolization violations. The decision makes it clear to standard-setting organizations that antitrust laws will be vigorously enforced against companies that conceal their IP rights from the standard-setting body.
The meaning of the 2004 Tunney Act amendments became the subject of intense debate this summer when the Antitrust Division sought approval of its consent decrees regarding the Verizon/MCI and SBC/AT&T transactions. The developments have created considerable uncertainty in the merger process.
The Federal Trade Commission recently agreed to a consent order with Unocal resolving allegations that Unocal violated federal antitrust laws by defrauding the California Air Resources Board in regulatory proceedings related to the creation of industry standards for the development of reformulated gasoline. Unusually, the consent order was conditioned on the successful acquisition of Unocal by Chevron Corp.
The US Federal Trade Commission (FTC) has reinstated charges that the Union Oil Company of California violated federal antitrust laws by defrauding the California Air Resources Board in regulatory proceedings related to the development of reformulated gasoline. The decision reaffirms the FTC's jurisdiction over patent-related claims.
A decision issued by an administrative law judge at the Federal Trade Commission (FTC) reflects potentially significant developments regarding the relationship between antitrust law and intellectual property. If the ruling stands and is not clarified, it could complicate future FTC efforts to bring both merger and non-merger enforcement actions that relate to patent issues.