A few notes from the last few weeks:

• The FTC is enjoying some good results regarding subpoenas.
• Congratulations to Tim Cornell who has joined Clifford Chance from Simpson Thacher & Bartlett.
• The 5th circuit upheld the dismissal of an antitrust lawsuit accusing Harrah’s Operating Co. and Pinnacle Entertainment of conspiring to monopolize riverboat gambling in Louisiana (decision).
• Looks like the FTC will jump on the anti-Intel boat.
• And it is investigating CVS Caremark.

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We are always happy to welcome a new antitrust blog to the blogosphere (even if we are a bit late in our welcome).  Check out Chilling Competition which focuses on competition issues in Europe.

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The Washington Post reports:

The House Judiciary Committee voted Wednesday to strip federal antitrust protections shielding health insurers from investigations into price fixing and other business practices, the first step in a legislative bid to clamp down on the much-maligned industry. Although Democrats have led the repeal push in recent weeks, the committee’s 20-9 vote came with the support of three Republicans. The legislation would repeal portions of the 1945 McCarran-Ferguson Act that allows states to regulate health insurance providers without federal intervention.

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Congratulations to Donald C. Klawiter and Jennifer M. Driscoll-Chippendale who joined Sheppard, Mullin, Richter & Hampton from Mayer Brown.

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Congratulations to James O’Connell who joined Covington & Burling from DOJ where he was Deputy Assistant Attorney General in charge of International, Policy, and Appellate matters in the Justice Department’s Antitrust Division.  He is the third DOJ Antitrust official to join Covington this year along with Thomas Barnett and Deborah Garza.

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Last week, American Needle filed its brief in American Needle, Inc. v. National Football League, the antitrust case that involves joint venture issues.

UPDATE: the Solicitor General filed her brief on Friday.

Update 2: Additional amicus briefs:

• Brief for the National Football League Players Association, the Major League Baseball Players Association, the National Basketball Players Association, and the National Hockey League Players Association in Support of Petitioner
• Brief for the American Antitrust Institute and the Consumer Federation of America in Support of Petitioner
• Brief for Economists in Support of Petitioner
• Brief for the National Football League Coaches Association in Support of Petitioner
• Brief for the Merchant Trade Association in Support of Petitioner and Reversal

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Two quick links.

First, Randy Picker has some very detailed analysis of the DOJ filing in the Google-Book Search case.

Second, the EC has posted a non-confidential version of its decision in the Intel matter.  Also, there is a press release.

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On Wednesday, Sen. Spector (PA) introduced a bill , S.1504, to legislatively overturn Twombly (and Iqbal).  The bill mandates a return to the Conley v. Gibson standard.  There are currently no-cosponsors.

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While researching an article regarding the search and seizure of computer hardware and electronic data in criminal antitrust investigations, I noticed a distinct lack of case law.  There is a lot of case law regarding the search and seizure of computer hardware and electronic data in other types of criminal cases.  But I did not find any significant cases involving antitrust investigations.  Putting aside for the moment any speculation as to the reasons for this (whether due to my poor legal research skills or the “low” number of criminal antitrust investigations in the last 10 years), if you are feeling generous and are aware of any such cases, feel free to mention them in the comments or email them to us.

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Update (7/09): The website is back up today.

Update (7/08): Day three and still down.  At some point this becomes embarrassing.  (Even if, as some have speculated, there was a DDoS attack. Another Update: The Washington Post reports that it is a DDoS attack and that 26 websites (including the Post) were targeted.  The FTC, however, seems to be the only website that has been down the entire time and is still down).

The FTC website is again down today.  PC World reports that “agency representatives said they don’t know what caused the problem.”

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In the “not surprising at all” category, yesterday the United States Department of Justice filed its amicus brief in the United States Court of Appeals for the Second Circuit in the “Cipro” case (a.k.a. Arkansas Carpenters v. Bayer).  In its brief, DOJ states:

Private agreements that include reverse payments are properly evaluated under the antitrust rule of reason, which takes into account efficiency-related justifications as well as anticompetitive potential.  The anticompetitive potential of reverse payments in the Hatch-Waxman context in exchange for the alleged infringer’s agreement not to compete and to eschew any challenge to the patent is sufficiently clear that such agreements should be treated as presumptively unlawful under Section 1 of the Sherman Act.  Defendants may rebut that presumption by providing a reasonable explanation of the payment, so that there is no reason to find that the settlement does not provide a degree of competition reasonably consistent with the parties’ contemporaneous evaluations of their prospects of litigation success.

If/when I figure out how to upload a pdf file I will attach the brief (or link to it if/when DOJ posts the brief on its website).

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Yesterday, the Supreme Court granted cert in American Needle, Inc. v. National Football League, et al.  The issue in the case is whether or not the NFL, its teams and the Players Association functioned as a single entity.  In short, if they did function as a single entity, then there cannot be Section 1 liability.

Both the district court and the seventh circuit found that the defendants (i.e., the NFL entities) were a single entity.  AR coverage of the seventh circuit decision is here.

An interesting aspect of this case is that the Supreme Court asked the Solicitor General for her opinion and the Solicitor General recommended the Court deny cert.  Granting cert after the SG has weighed in to the contrary is extremely rare.

The Sports Law Blog has noted that the “NFL—and other professional sports leagues in the U.S.—have a tremendous amount to gain from the Supreme Court’s decision, but not much to lose.”  At the Antitrust & Competition Policy Blog, Chris Sagers has a lengthy (and passionate) post in which he speculates that “in short, there are probably four pretty solid votes for affirmance, one more (Kennedy) that seems only marginally less solid for defendants, and either of two (Breyer and Sotomayor) that might also sign on for affirmance.”

American Needle’s Cert Petition.

The NFL’s brief.

American Needle’s supplemental brief.

The Solicitor General’s brief.

Seventh Circuit opinion.

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Yesterday, the FTC issued “Authorized Generics: An Interim Report,” which contains the “first set of results from a study conducted to examine the short-term and long-term effects of ‘authorized generics’ on competition in the prescription drug marketplace.”  The press release also notes that:

The Interim Report finds that drug prices are lower when authorized generics are marketed against a single generic drug than when they are not. With authorized generic competition during the 180-day marketing exclusivity period, retail drug prices are on average 4.2 percent lower than the pre-generic branded price, and wholesale drug prices are on average 6.5 percent lower than the pre-generic branded price.

Authorized generic entry during this time also substantially reduces the revenues of a first-filer generic firm, with declines ranging from 47 to 51 percent. As a result, because a generic can earn greater revenues if an authorized generic does not enter the market, a generic firm may be willing to agree to defer its market entry in return for a brand’s promise not to launch a competing authorized generic during the 180-day marketing exclusivity period. A review of patent settlement agreements, the Interim Report states, reveals that such agreements appear to be more common now than in the past.

(I personally wonder if a 4% decline can be accurately be termed “substantial”).

The report itself is available here.

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It must be “reverse payment” week as FTC Chairman Leibowitz gave a speech this morning on the topic.  The FTC press release states that:

an internal FTC analysis projects that stopping collusive “pay-for-delay” settlements between brand and generic pharmaceutical firms would save consumers $3.5 billion a year and also reap significant savings for the federal government, which pays approximately one-third of all prescription drug costs.  Chairman Leibowitz urged Congress to pass pending legislation to ban or restrict such anticompetitive patent settlements, in which manufacturers of brand-name drugs pay potential generic competitors to stay out of the market, as a way to control prescription drug costs, restore the benefits of generic competition, and help pay for health care reform.

The full text of the speech is here.

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Yesterday, the Supreme Court denied cert in Arkansas Carpenters Health and Welfare Fund v. Bayer AG, again refusing to consider a “reverse payment” case.  From Dow Jones:

The U.S. Supreme Court rejected a lawsuit challenging Bayer AG’s (BAYRY) deal with Barr Pharmaceuticals Inc. (BRL) to delay producing a generic version of Cipro, an antibiotic drug.

…

Separate litigation on the Cipro agreements brought by drug wholesalers and retailers is still pending in a lower court. The Obama administration intends to file a brief in that case, which is in the 2nd U.S. Circuit Court of Appeals in New York.

Bayer paid $398 millionto Barr and other generic drug makers in return for an agreement that they would not market a generic version of Cipro until Bayer’s patent on the drug expired. Drug purchasers and advocacy groups challenged the agreement as anticompetitive, saying it violated federal and state antitrust laws as well as state consumer protection laws.

The lawsuit was thrown out by a U.S. trial judge in New York in 2005. Last year the U.S. Court of Appeals for the Federal Circuit affirmed the rejection, agreeing that Bayer’s patent rights gave it the ability to enter into agreements limiting generic alternatives to its antibiotic.

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