USA Tipline

Pharma state: The Tipline for 11 June 2020

GCR USA - 11 June 2020

A group of 51 US states and territories have filed a third price-fixing lawsuit against generic drugmakers. By all accounts, the investigation has been a massive team effort from representatives of nearly every corner of the US. The same cannot be said of the alleged conspiracy. The latest lawsuit accuses 26 generic pharmaceutical companies and 10 individuals of conspiring to manipulate prices for generic topical skin treatments. Fifteen of those companies and five of those individuals reside in New Jersey. Bruce Springsteen and Jon Bon Jovi may be challenged to work nystatin triamcinolone ointment into their next songs.

Anticompetitive-ception: The Tipline for 10 June 2020

GCR USA - 10 June 2020

Shoutout to the UK's Competition and Markets Authority for giving US antitrust wonks something substantive to talk about with these probes into digital platforms. Little is known about the US agencies’ investigations outside what is leaked to the Wall Street Journal, but the UK enforcer’s interim look at digital advertising markets offers an excellent primer of what might follow. Also in Tipline, a peek at the Fifth Circuit’s reaction as it heard Impax’s appeal of an FTC finding that the drugmaker entered into an anticompetitive pay-for-delay settlement. One judge expressed concerns that the deal involved anticompetitive conduct to justify more anticompetitive conduct.

Kodak moment: The Tipline for 9 June 2020

GCR USA - 09 June 2020

On this date in 1992, Kodak had its antitrust moment. The Supreme Court ruled six-to-three in favour of reinstating the claims of repair companies alleging Eastman Kodak had illegally monopolised the sale of service and parts for its photocopier machines. A California jury would later find the company liable for $72 million in treble damages. GCR USA has more antitrust news related to outdated technology today, as a federal appellate court upholds a $438.5 million damages award against Quanta Storage related to its participation in a conspiracy to fix prices for optical disk drives.

Musk v Bezos: The Tipline for 8 June 2020

GCR USA - 08 June 2020

Silicon Valley entrepreneur Elon Musk appears to have caught the antimonopoly bug just in time to see the Department of Justice bring its expected first major monopolisation case in two decades. The Tesla and SpaceX owner criticised Amazon chief executive Jeff Bezos last Thursday over his company refusing to host a self-published book criticising coronavirus lockdowns. “Time to break up Amazon. Monopolies are wrong!” Musk wrote. He later deleted the Tweet. In today’s Tipline, we have Congressional criticism of AT&T for favouring its new HBO Max service, plus updates on antitrust litigation against generic drugmakers and 1800-Contacts.

Double trial: The Tipline for 5 June 2020

GCR USA - 05 June 2020

When securing the conviction of the former head of Bumble Bee Foods in December, the Department of Justice only needed to show that a conspiracy existed. Now, the government’s prosecutors and Christopher Lischewski’s defence counsel are debating the volume of commerce that the cartel impacted – with significant prison time potentially on the line. During a sentencing hearing this week, the presiding judge said the defence’s proposed burden of proof would require an additional trial with the kind of complex economic analysis you see in civil litigation. But not to alarm any of you with PhDs, the court did not appear inclined to open criminal proceedings to full-fledged antitrust economics.

Fowl play: The Tipline for 4 June 2020

GCR USA - 04 June 2020

Stock prices for Pilgrim’s Pride sank over 12% yesterday after a federal grand jury indicted the company’s chief executive and a former vice president on one count of conspiring to fix prices and rig bids for chicken products. What is it about protein and price-fixing? Chicken, tuna, pork, beef... Is there simply a lot of raw conduct going on, or is the government just very keen that enforcement be well done?

It’s a marathon: The Tipline for 3 June 2020

GCR USA - 03 June 2020

The state of Kentucky is known for horse racing sprints like the annual derby at Churchill Downs. That probably should have been a bad omen when its attorney general tried to take on Marathon Petroleum. The state’s price-fixing claims didn’t make it very far out of the gate, falling on summary judgment. Like horse racing, antitrust enforcement can be a rather cruel sport.

Phase I: The Tipline for 2 June 2020

GCR USA - 02 June 2020

The nation’s capital returned to lockdown last night after scattered looting and vandalism on Sunday night. Monday’s curfew – lasting from 7pm to 6am – came only days after businesses began to reopen during “Phase I” of the city’s return from coronavirus restrictions. Restaurants are now open for patio and rooftop seating, with tables six feet apart. Athletic fields, dog parks and tennis courts are also open. In today’s Tipline, we have a merger of economics consultancies and look at how “political content” has escaped antitrust enforcement.

Common goal: The Tipline for 1 June 2020

GCR USA - 01 June 2020

Questions of inequality play little role in modern competition case law, but civil rights law and antitrust have not always been mutually exclusive. In 1982, the US Supreme Court unanimously reversed the Mississippi Supreme Court’s finding that 130 black residents of Claiborne County, Mississippi, had violated state antitrust law by boycotting the businesses of white merchants in the area. “History teaches that special dangers are associated with conspiratorial activity,” Justice John Paul Stevens wrote for the majority. “And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”

Tweetstorm: The Tipline for 29 May 2020

GCR USA - 29 May 2020

President Donald Trump took aim at section 230 of the Communications Decency Act on Thursday, signing an executive order that directs the Federal Communications Commission to make rules limiting liability protection for platform operators that remove or edit content. Senator Joshua Hawley, a frequent critic of technology companies, connected the controversy to concerns about online advertising dominance. Google’s digital advertising business is reportedly a focus of the Department of Justice’s antitrust probe of the company. “Gotta remember that the key to #BigTech dominance/monopoly is advertising,” Hawley wrote on Twitter. We also have an update on the DOJ’s intervention in a satellite communications deal and a response from the arbitrator accused of ruling in Uber’s favour out of fear.

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