Antitrust Update: Sherman Act Section 2 Hearings

This fall issue of the Antitrust Update reflects the broad reach of the federal antitrust laws and covers developments in both government enforcement actions and private antitrust litigation. On the enforcement side, we address an important, and long-awaited, standard-setting decision from the Federal Trade Commission. The decision, In the Matter of Rambus, Inc., has several valuable lessons for patent owners who participate in standard-setting organizations (SSOs). On the private litigation side, we discuss the Twombly case, which is now on appeal to the U.S. Supreme Court. At stake in Twombly is an issue that arises repeatedly in antitrust litigation – the standard for alleging an antirust conspiracy.  The result of this Supreme Court appeal is likely to affect the course of many future antitrust cases at the pleading stage.

We also discuss criminal aspects of antitrust regulation. Currently the subject of a petition for certiorari before the Supreme Court and, simultaneously, a federal criminal proceeding in Philadelphia is the now infamous Stolt-Neilsen matter. The criminal defendant in this matter, a confessed member of an antitrust conspiracy in the parcel-tanker shipping industry, is now fighting on both those fronts to preserve its immunity deal with the Department of Justice.

With a view toward the future of antitrust enforcement, we include in this issue reports on initiatives to repeal or modify the McCarran-Ferguson Act, which currently provides a limited antitrust immunity to the insurance industry, and joint hearings by the DOJ and the FTC on Section 2 of the Sherman Act, governing monopolization and attempted monopolization.

We begin with a discussion of a topic that has generated significant interest in the antitrust and pharmaceutical communities and is the subject of an upcoming FTC investigation – authorized generic drugs.