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Federal District Court Denies Untimely Jurisdiction Challenge in Generic Drug Price-Fixing Case
04/23/2026On April 8, 2026, U.S. District Judge Michael P. Shea denied a motion by defendant Mallinckrodt PLC to dismiss an antitrust action brought by 45 state attorneys general for lack of personal jurisdiction or improper service, concluding the company forfeited those defenses by waiting more than five years after the complaint and by litigating on the merits in the interim. Plaintiffs’ claims therefore continue against defendant in Connecticut et al. v. Sandoz, Inc., No. 3:20 cv 00802 MPS (D. Conn.) (the “Dermatology Action”), which alleges single drug conspiracies and an overarching agreement across roughly eighty generic dermatology drugs.
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Federal District Court Grants Preliminary Injunction Blocking Pre-Commercial Heart Valve Acquisition
02/03/2026On January 23, 2026, the U.S. District Court for the District of Columbia unsealed its order granting a preliminary injunction blocking a life sciences company’s proposed $945 million acquisition of a heart valve company, prompting defendant to abandon the deal. Fed. Trade Comm’n v. Edwards Lifesciences Corp., No. 1:25‑cv‑02569 (D.D.C. Jan. 23, 2026).
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Ninth Circuit Rules In Favor Of Merging Parties In Microsoft/Activision Appeal
05/13/2025On May 7, 2025, the United States Court of Appeals for the Ninth Circuit affirmed a lower court opinion that denied the Federal Trade Commission’s (“FTC”) motion for a preliminary injunction against Microsoft’s acquisition of Activision Blizzard, Inc. Federal Trade Commission v. Microsoft Corp. and Activision Blizzard, Inc., No. 23-15992 (May 7, 2025).
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In-Home Nursing Agency Executive Convicted By Nevada Federal Jury In The Department Of Justice’s First Victory In A Wage-Fixing Trial
04/22/2025On April 14, 2025, a federal jury in Nevada convicted a home healthcare nursing executive on one count of conspiracy to fix wages and five counts of wire fraud after a 15-day trial. The verdict represents the DOJ’s first criminal antitrust conviction relating to labor markets after a string of losses in cases dating back to 2020.
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United States District Court Rejects FTC’s Attempt To Block Tempur Sealy And Mattress Firm Vertical Merger
03/11/2025On January 31, 2025, the United States District Court for the Southern District of Texas denied the Federal Trade Commission’s (FTC) motion for a preliminary injunction to block the $4 billion acquisition of Mattress Firm by Tempur Sealy International, Inc. Fed. Trade Comm’n v. Tempur Sealy Int’l, Inc., No. 4:24-CV-02508 (S.D. Tex. Jan. 31, 2025).
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SDNY Judge Refuses To Transfer DOJ Case Against Concert Promoter, Finding Attempt To Unwind A Merger Cleared By Consent Decree Does Not Necessarily “Modify” The Decree
10/16/2024On October 3, 2024, United States District Judge Arun Subramanian refused to transfer the DOJ’s monopolization case against two companies in the live entertainment industry (“Defendants”) from the Southern District of New York to the District of Columbia. United States, et al. v. Live Nation Entertainment, Inc., and Ticketmaster L.L.C., No. 24-CV-3937 (AS) (S.D.N.Y. Oct. 3, 2024). According to the decision, the case, which alleges violations of the state and federal antitrust laws, is insufficiently related to the consent decree governing Defendants’ 2010 merger to fall within its retention-of-jurisdiction provision. In his ruling, Judge Subramanian drew a distinction between the consent decree, which “resolved a single claim arising under Section 7 of the Clayton Act,” and DOJ’s present allegations that defendants “have violated separate legal duties” under the Sherman Act and analogous state laws.
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U.S. DOJ Seeks Rare USD3.5 million “Gun Jumping” Penalty For Alleged Pre-Closing Conduct In Violation Of Hart-Scott-Rodino Act
08/20/2024
On August 5, 2024, the United States Department of Justice filed a rare gun jumping civil lawsuit and proposed settlement in the United States District Court for the Southern District of New York against a global sports and entertainment venue services company (the “acquiror”) in connection with its acquisition of a venue services/management company (the “acquiree”). United States v. Legends Hosp. Parent Holdings, LLC, No. 1:24-cv-5927 (S.D.N.Y. Aug. 5, 2024).
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District Courts Split On Federal Trade Commission’s Non-Compete Clause Rule
07/30/2024On July 23, 2024, Judge Kelley Brisbon Hodge of the United States District Court for the Eastern District of Pennsylvania denied plaintiff’s motion for a preliminary injunction seeking to enjoin the Federal Trade Commission (FTC)’s Non-Compete Clause Rule (the “Rule”), which bans the use of most non-compete clauses in employment contracts and is set to go into effect on September 4, 2024. ATS Tree Services, LLC v. Federal Trade Commission, No. 2:24-CV-01743, ECF No. 80 (E.D. Pa. July 23, 2024). A diverging opinion out of the Northern District of Texas granting plaintiffs’ motion for a preliminary injunction in that case, and a pending case in the Middle District of Florida, sets up a likely challenge of the Rule up to the Supreme Court. SeeRyan v. Federal Trade Commission, No. 3:24-CV-00986, ECF No. 153 (N.D. Tex. July 3, 2024); Properties of the Villages, Inc. v. Federal Trade Commission, No. 5:24-CV-00316 (M.D. Fla.).
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DOJ Fails To Secure Jury Trial In Adtech Monopoly Suit After Damages Claim Mooted By $2.3 Million Cashier’s Check
06/25/2024
On June 11, 2024, the United States District Court for the Eastern District of Virginia granted defendant’s motion to dismiss plaintiffs’ damages claim in a lawsuit brought by the Department of Justice and eight states against a technology company alleging illegal monopolization of adtech markets. The Court, in an opinion unsealed on June 17, dismissed the damages claim as moot, finding no claim for relief remained after defendant sent the full amount of potential damages to DOJ’s offices in the form of a cashier’s check. The Court also struck plaintiffs’ demand for a jury trial, which was based solely on the claim for damages. United States of America et al. v. Google, LLC, No. 1:23-cv-108 (E.D. Va. Jun. 19, 2024).
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D.C. Circuit Reverses Lower Court’s Decision To “Set Aside” Civil Investigative Demand
04/23/2024
On April 5, 2024, the United States Court of Appeals for the District of Columbia Circuit reversed the district court’s decision to “set aside” a civil investigative demand (“CID”) issued by the Antitrust Division of the U.S. Department of Justice (“DOJ”) to the National Association of Realtors (“NAR”), a real estate trade association. The majority found that the issuance of the CID was not barred by the parties’ prior settlement agreement regarding different allegations. National Association of Realtors v. United States, No.23-5065, 2024 WL 1471170 (D.C. Cir. Apr. 5, 2024).
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D.C. Circuit Rejects FTC’s Appeal Related To Alleged Anticompetitive Conduct Stemming From Endo And Impax’s Patent Settlement Agreement, Holding It Was No Different From A Permissible Exclusive Licensing Agreement
09/06/2023
On August 25, 2023, a panel of the United States Court of Appeals for the D.C Circuit affirmed the district court’s dismissal of the FTC’s complaint against Endo Pharmaceuticals Inc. (“Endo”), Impax Laboratories LLC (“Impax”) and their parent companies (collectively “Appellees”) for alleged violations of sections 1 and 2 of the Sherman Act. FTC v. Endo Pharmaceuticals Inc., et al., Dkt. No. 22-05137 (D.C. Cir. Aug. 25, 2023). The suit stemmed from a patent litigation settlement agreement in 2017, which the FTC alleged was an impermissible exclusive licensing arrangement. The D.C. Circuit held that the FTC failed to state a claim because the complaint lacked allegations establishing that the 2017 Agreement extended beyond the rights granted to Impax under settled law and precedent. -
State Antitrust Enforcement Actions Exempt From Multi-District Litigations
06/13/2023
On June 5, 2023, the Judicial Panel on Multidistrict Litigation (the “Panel”) held that recent changes to 28 U.S.C. § 1407(g), extending a limitation on multi-district consolidation to state-attorney-general complaints, applied to already pending cases and thus precluded the state-led antitrust actions against Google from proceeding with other cases in a multidistrict litigation. -
FTC Loses Preliminary Injunction Bid In Challenge Of Technology Company’s Acquisition Of Virtual Reality Fitness App Maker
02/14/2023
On January 31, 2023, the United States District Court for the Northern District of California denied the Federal Trade Commission’s (“FTC”) request for a preliminary injunction to block a technology company’s (the “Company”) acquisition of a virtual reality fitness app maker (the “Fitness App”. The Court found that the FTC failed to show that the Company was reasonably likely to enter the virtual reality dedicated fitness app market absent the deal. Federal Trade Commission v. Meta Platforms Inc. et al., No. 5:22-CV-04325-EJD (N. D. Cal. Feb. 3, 2023). -
Impax Reaches Impasse As Fifth Circuit Denies Review Of FTC’s First Post-Actavis Reverse Payment Ruling
05/18/2021
On April 13, 2021, the United States Court of Appeals for the Fifth Circuit, in an opinion authored by Judge Gregg Costa, affirmed the Federal Trade Commission’s (“FTC”) order finding a reverse payment settlement between a branded drug manufacturer and a generic drug manufacturer violated the FTC Act and the Sherman Act. Impax Laboratories, Inc. v. Federal Trade Commission, No. 19-60394 (5th Cir. 2021). The Court upheld the FTC administrative court’s finding that the settlement agreement was anticompetitive because it “replaced the ‘possibility of competition with the certainty of none.’” -
Reversing Prior Order, Utah District Court Holds Per Se Rule Applies To Customer Allocation Agreement
03/05/2019
On February 21, 2019, Judge David Sam of the U.S. District Court for the District of Utah reversed course and found that a per se standard applies to a market allocation agreement among competitors in the heir location services market. Judge Sam initially found that the more lenient rule of reason standard should apply. However, following a recent Tenth Circuit ruling, Judge Sam held it is the form of the agreement—not the type of industry—that compels the appropriate standard of review. United States of America, v. Kemp & Associates, Inc. and Daniel J. Mannix, No. 2:16CR403 DS, 2019 WL 763796 (D. Utah Feb. 21, 2019). -
United States Supreme Court Upholds Rejection Of The Government’s Antitrust Challenge To American Express’s Merchant Contracts
07/03/2018
On June 25, 2018, the U.S. Supreme Court, in a 5-4 decision by Justice Thomas, held that provisions in American Express Company’s (“American Express” or “Amex”) and its operating subsidiary’s contracts with merchants that restricted the ability of these merchants to steer customers to other credit or charge cards did not violate the Sherman Act. Ohio v. Am. Express Co., 585 U.S. __, slip op. at 1 (2018). The Court held that plaintiffs—the United States Department of Justice and the Attorneys General of several states—failed to satisfy their burden of proving anticompetitive effects in the relevant market under the rule of reason. Id. at 10. The ruling has important implications for antitrust analysis, not only for the credit card industry, but for other industries that operate in two-sided markets where firms must compete simultaneously for different groups of customers whose demands are distinct but deeply interrelated. -
United States District Court For The District Of Columbia Rejects DOJ Challenge To AT&T-Time Warner Merger
06/19/2018On June 12, 2018, following a six-week-long bench trial, Judge Richard J. Leon of the United States District Court for the District of Columbia ruled that AT&T’s proposed acquisition of Time Warner does not violate the antitrust laws, rejecting the United States Department of Justice’s (DOJ) challenge to the merger. United States v. AT&T Inc., Civil Case No. 17-2511 (RJL) (D.D.C. June 12, 2018). This case—the first vertical merger challenge tried by the Justice Department since 1977—demonstrates the difficulty in challenging mergers where a competitor is not eliminated by the transaction.
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Utah District Court Denies Defendants’ Motion To Dismiss Complaint Alleging Restraint Of Trade In Online Lens Retail Market
06/05/2018
On May 17, 2018, Judge Tena Campbell of the United States District Court for the District of Utah denied three leading contact lens retailer defendants’ motion to dismiss a putative class action complaint alleging violations of Section 1 of the Sherman Act. J. Thompson, et al. v. 1-800 Contacts, et al., Case No. 2:16-CV-1183-TC (D. Utah May 17, 2018). Plaintiffs, who purchased contact lenses online from defendants, alleged that they paid artificially-inflated prices for those contact lenses due to defendants’ anticompetitive trademark litigation settlement agreements. Defendants moved to dismiss the claims because the plaintiffs lacked antitrust standing, failed to properly plead a relevant product market, did not allege a single overarching conspiracy, and with respect to damages claims prior to 2012, failed to file a lawsuit within the Clayton Act’s four-year statute of limitations.
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United States Federal Trade Commission Administrative Law Judge Dismisses Complaint Challenging Reverse Payment Settlement Between Pharmaceutical Manufacturers
05/30/2018
On May 11, 2018, U.S. Federal Trade Commission (“FTC”) Administrative Law Judge D. Michael Chappell issued an initial decision ruling that a reverse payment settlement by Endo Pharmaceuticals (“Endo”) with Impax Laboratories (“Impax”) did not violate Section 5 of the FTC Act, and dismissing the FTC’s complaint. In the Matter of Impax Labs., Inc., Docket No. 9373 (Initial Decision, May 11, 2018). Judge Chappell concluded that despite the reverse payment Endo made to Impax, the anticompetitive harm arising from the settlement was “largely theoretical,” and that the settlement’s procompetitive benefits outweighed any anticompetitive effect from the agreement. The initial decision is the first administrative ruling on a reverse payment trial since the U.S. Supreme Court’s 2013 Actavis decision. The decision has been noticed for appeal to the Commission.
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European Union General Court Upholds Cartel Liability Of Facilitators, But Attempts To Rein In Commission’s Approach In Settlements
12/12/2017
On November 10, 2017, the European Union General Court (GC) handed down its judgment in Icap v Commission. Judgment of the General Court in Case T-180/15 Icap and others v Commission, 10 November 2017. This note examine three aspects of the decision: (1) the imposition of liability for cartel infringement on a “facilitator” who was not a primary participant in the cartel; (2) the Commission’s procedural obligations with regard to settlement procedures in hybrid cases; and (3) the standard for a “by object” infringement of Article 101(1) Treaty on the Functioning of the European Union (TFEU).
Read moreCategory: Government Enforcement