US Government Enforcement

A Year in Review: US Agency Antitrust Enforcement

The end of the fiscal year 2009 marks the Obama administration's first full year in office. While campaigning for the presidency, then-Senator Obama criticised the Bush administration for having 'the weakest record of antitrust enforcement of any administration in the last half century's antitrust enforcement record' and promised that his administration would 'reinvigorate antitrust enforcement.'¹Although it is early to try to draw firm conclusions about the Obama administration's antitrust record, a survey of agency enforcement activity over the course of the year does appear to show a modest but measurable increase in enforcement activity in all areas.

Developments in civil antitrust enforcement

Merger enforcement by the numbers

With respect to mergers, then-Senator Obama promised to 'step up review of merger activity and take effective action to stop or restructure those mergers that are likely to harm consumer welfare.'²Merger enforcement statistics for fiscal year 2009 suggest that the agencies may in fact be taking a more aggressive stance when evaluating mergers and acquisitions.

While the number of transactions reported to the agencies pursuant to the Hart-Scott-Rodino Act in the past year was down, the percentage of reportable transactions that were challenged increased at both agencies. In 2009, 713 transactions were reported to the agencies, down from 1,726 transactions reported in 2008 and 2,201 transactions reported in 2007.³The agencies issued second requests with respect to 31 of those transactions (the DOJ issued 16; the FTC issued 15), or 4.3 per cent of notified transactions. By way of comparison, the agencies issued second requests in connection with 2.5 per cent of notified transactions in 2008 (41 second requests).⁴During 2009, the FTC challenged 13 transactions, leading to seven consent orders, five administrative complaints and one withdrawn transaction.⁵Over the same period, the DOJ challenged 12 transactions, leading to seven consent decrees and five abandoned or restructured transactions.⁶This reflects an increase in the percentage of reported transactions being challenged from 2.1 per cent in 2008 to 3.5 per cent in 2009.

It is too early to tell whether these numbers reflect a significantly more aggressive stance at the agencies with respect to merger enforcement. The increase in the number of mergers receiving a second request may simply be due to the fact that with fewer transactions being notified, the agencies have more resources available to review any particular transaction.⁷In addition, although fewer deals were reported in 2009, it is possible that a greater percentage of these deals were 'strategic' deals involving competitors than was the case in prior years.

Ticketmaster/Live Nation

The DOJ required Ticketmaster Entertainment to licence its ticketing software, divest ticketing assets and agree to anti-retaliation provisions before closing its merger with Live Nation Inc in January 2010. At the time of the proposed merger, Ticketmaster was the largest provider of primary ticketing services to concert venues in the United States, with a market share greater than 80 per cent.⁸Live Nation was the country's largest promoter of live concerts and controlled more than 75 concert venues.⁹For a time, Live Nation was Ticketmaster's biggest customer.¹⁰In December 2008, Live Nation threatened Ticketmaster's market share by launching a ticketing service for its own and third-party concert venues.¹¹Almost immediately Live Nation garnered a 16 per cent market share, reducing Ticketmaster's share to 66 per cent.¹²Ticketmaster initially responded to the new competition by offering more attractive contracts for its customers.¹³The DOJ alleged that eventually Ticketmaster resorted to eliminating competition between the two firms through a merger agreement.¹⁴Where the industry had high barriers to new entry and expansion and the merger would eliminate Ticketmaster's only effective competitor, the consent decree preserved competition by creating two new competitors in primary ticketing services.¹⁵Ticketmaster agreed to licence its ticketing service to Anschutz Entertainment Group, Inc, the second-largest concert promoter behind Live Nation, and to divest a subsidiary ticketing service to Comcast-Spectacor, LP, a company already engaged in primary ticketing services.¹⁶Moreover, Ticketmaster was prohibited from retaliating against venues that consider primary ticketing services from Ticketmaster's competitors.¹⁷

CSL/Talecris

In June 2009, CSL Ltd abandoned its $3.1 billion acquisition of Talecris Biotherapeutics Holdings Corp, a wholly owned subsidiary of Cerberus-Plasma Holdings, LLC.¹⁸Respectively, CSL and Talecris were the second and third largest suppliers of plasma-derivative protein therapies worldwide.¹⁹The FTC focused its investigation on four overlapping plasma-derivative protein therapies used to treat a number of serious illnesses: Ig, Albumin, Rho(D) and Alpha-1.²⁰The proposed acquisition would have reduced the number of competitors from five to four in the first two product markets and from three to two in the second two product markets, with the top two competitors post-acquisition accounting for 80 per cent of each market.²¹The industry had already experienced major consolidation, shrinking from 13 competitors in 1990 to five competitors in 2009, with two of the five competitors having market shares in the single digits and an unlikely chance of expansion.²²In an industry where new entry and expansion is difficult, the FTC alleged that industry consolidation was used to limit supply and raise prices.²³The CSL /Talecris acquisition would continue to increase the likelihood of coordinated action.²⁴The FTC was particularly concerned by the acquisition because, at the time of the transaction, Talecris was aggressively expanding, and any increase in supply or drop in price that would have resulted from the expansion would have been lost in the acquisition.²⁵

Schering-Plough/Merck and Pfizer/Wyeth

In October 2009, Schering-Plough Corp and Merck & Co, Inc signed a consent decree to divest assets to preserve competition in certain human and animal health-care markets.²⁶Schering-Plough was acquiring Merck in a $41.1 billion transaction.²⁷Both companies were leading suppliers of animal pharmaceuticals and vaccines, with a combined share of 75 per cent in poultry vaccines.²⁸With respect to a certain cattle drug, the transaction would have reduced the number of competitors from three to two.²⁹To preserve competition in poultry and cattle pharmaceuticals, the FTC required Merck to divest its interest in a joint venture focused on animal health care.³⁰In the realm of human health care, the FTC required Schering-Plough to divest a drug that treated side effects associated with chemotherapy.³¹Merck had the only FDA-approved medication to treat nausea and vomiting associated with chemotherapy.³²At the time of the transaction, Schering-Plough was attempting to licence its own chemotherapy-associated nausea medication.³³Fearing elimination of future competition between Merck's and Schering-Plough's anti-nausea treatments, the FTC allowed the transaction on the grounds that Schering-Plough divest its developing anti-nausea treatment.³⁴

Also in October 2009, Pfizer Inc and Wyeth signed a consent decree with the FTC over Pfizer's acquisition of Wyeth.³⁵Pfizer is the largest prescription pharmaceutical company in the United States; at the time of the transaction, Wyeth was the 12th largest prescription pharmaceutical company in the United States.³⁶The FTC's inquiry into the acquisition focused on overlapping products in animal pharmaceuticals and vaccines. The FTC identified 21 relevant products in which the combined firm would have a high market share, in some instances acquiring a monopoly.³⁷The FTC challenged the acquisition on the grounds that it would eliminate substantial competition between the firms, increase the likelihood of unilateral and coordinated action, reduce incentives to innovate, and increase prices for the relevant products.³⁸Because new entry or expansion was unlikely to replace competition lost from the acquisition, the consent decree required Pfizer to preserve competition by divesting a portion of Wyeth's animal health business and its own horse vaccines to Boehringer Ingelheim Vetmedica, Inc.³⁹It also required Pfizer to return its exclusive distribution rights for an equine tapeworm treatment to Virbac SA.⁴⁰

Update on Revisions to the Horizontal Merger Guidelines

The agencies continue to develop revised Horizontal Merger Guidelines ('Guidelines') at the time of publication. In December 2009 and January 2010, the agencies held a series of joint workshops to evaluate whether and how the Guidelines should be amended.⁴¹The agencies issued a draft of the revised Guidelines for public comment on 20 April 2010.⁴²They identified a number of specific differences between the current and proposed new Guidelines, including:

• a focus on a fact-specific merger analysis to determine whether a merger will substantially lessen competition;

• the addition of a new section on Evidence of Adverse Competitive Effects;

• de-emphasis of market definition as the starting point for merger analysis;

• an updated explanation of the hypothetical monopolist test for defining relevant antitrust markets;

• an update to the concentration thresholds that indicate when a transaction warrants further scrutiny or challenge;

• a more detailed explanation of how the agencies evaluate unilateral competitive effects, including effects on innovation;

• a revised coordinated effects section that addresses conduct not otherwise within the reach of the antitrust laws;

• a simplified approach to evaluating entry; and

• new sections on power buyers, monopsony, and partial acquisitions.⁴³

The period for public comments on the revised draft of the proposed Guidelines closed on 4 June 2010.⁴⁴The final revised Guidelines are expected to be issued before the end of the year.

Non-merger civil enforcement

In addition to stepping up review of merger activity, the Obama campaign also called for more aggressive civil non-merger enforcement. During the campaign, then-Senator Obama lamented the lack of Section 2 enforcement, noting that 'in seven years, the Bush Justice Department has not brought a single monopolisation case.'⁴⁵Shortly after her appointment as Assistant Attorney General in charge of the Antitrust Division, Christine Varney vowed to step up enforcement: 'The Antitrust Division must step forward and take a leading role in the development of the government's multi-faceted response to the current market conditions. Vigorous antitrust enforcement action under Section 2 of the Sherman Act will be part of the Division's critical contribution to this response.'⁴⁶

Although the tougher rhetoric has not yet translated into a meaningful increase in the number of civil non-merger cases being filed by the DOJ, a significant uptick in enforcement activity is apparent in the statistics relating to new investigations being opened by the agency. During 2009, the DOJ had 57 pending civil non-merger investigations, the highest number within the past decade.⁴⁷As a point of comparison, in the previous year, the DOJ had only 35 pending civil non-merger investigations.⁴⁸

Civil non-merger enforcement remained more active at the FTC than at the DOJ during the Bush years, so one might expect less significant change to the agency's enforcement activities over the past year, but there are signs of a more active enforcement agenda. In 2009, the FTC initiated seven non-merger enforcement actions, three more than in 2008.⁴⁹In the first half of 2010, FTC has already initiated seven new civil conduct cases.⁵⁰

Chairman Leibowitz has made it clear that one of his enforcement priorities will be to test the boundaries of Section 5 of the FTC Act, which prohibits 'unfair methods of competition' and 'unfair or deceptive acts or practices.'⁵¹Both Chairman Liebowitz and Commissioner Rosch have been vocal in asserting that Section 5 prohibits certain conduct that cannot be challenged under Section 2 of the Sherman Act in light of recent Supreme Court decisions widely perceived as limiting the reach of Section 2.⁵²

KeySpan settlement

In February 2010, the DOJ filed a complaint against KeySpan Corp alleging that it had entered into an anti-competitive swap transaction involving electric generation capacity. For the first time, the DOJ sought the disgorgement of profits as an equitable remedy from an alleged Section 1 violation.¹⁷According to the complaint, in January 2006, KeySpan entered into an agreement with Morgan Stanley to obtain a financial interest in the electricity generating capacity of its primary competitor, Astoria Generating Company.⁵⁴The DOJ alleged that because KeySpan received revenues from its competitor's sales, it did not have an incentive to compete for sales of its own electricity generating capacity.⁵⁵Indeed, after the agreement, KeySpan did not bid its electricity generating capacity competitively, bidding the maximum price permitted, and as a result, a significant portion of its capacity was not sold.⁵⁶The DOJ claimed that absent the agreement, KeySpan would have bid its capacity competitively, and the price of installed capacity would have been cheaper in New York City from 2006 to 2008.⁵⁷KeySpan agreed to disgorge the profits it gained from the agreement and surrendered $12 million to the Treasury of the United States.⁵⁸

FTC pay-for-delay activities

The FTC continues to be an active voice against 'pay-for-delay' settlements in the pharmaceutical industry. The FTC has issued two recent reports detailing the effects of pay-for-delay settlements.⁵⁹The reports conclude that pay-for-delay settlements cost consumers $3.5 billion per year and in the past six years have delayed generic entry by an average of 48 months.⁶⁰FTC Commissioners and Bureau Director Richard Feinstein have also worked closely with members of Congress to promote HR 1706, a bill entitled Protecting Consumer Access to Generic Drugs Act of 2009, that was designed to legislate the illegality of reverse payment or pay-for-delay settlements.⁶¹The House of Representatives passed the bill as a provision to an appropriations bill on 1 July 2010. ⁶² The measure is expected to go before the Senate this year where it has bipartisan support. ⁶³ Meanwhile, the FTC is likely to continue aggressively pursuing pay-for-delay settlements, alleging that the 'fundamental antitrust concern underlying such settlements is the sharing of monopoly profits that are preserved by an agreement not to compete.' ⁶⁴

In the past year, the FTC has been faithful to its commitment of going after pay-for-delay settlements. In February 2009, the FTC sued Solvay Pharmaceuticals Inc and its generic rivals, Watson Pharmaceuticals Inc and Par Pharmaceutical Companies Inc, for agreeing to delay entry into the market to compete with Solvay's testosterone-replacement drug AndroGel.⁶⁵The FTC's complaint was dismissed a year later,⁶⁶but the FTC will continue its fight in its appeal to the Eleventh Circuit.⁶⁷In March 2010, the FTC scored a small victory when the Eastern District of Pennsylvania refused to dismiss the FTC's complaint against Cephalon, Inc for paying four of its generic rivals more than $200 million to stay out of the market for drugs treating excess sleepiness.⁶⁸In April 2010, the FTC filed an amicus brief in the Ciprofloxacin case.⁶⁹The Second Circuit granted summary judgment for defendants, but recognising the '"exceptional importance" of the antitrust implications of reverse exclusionary payment settlements,' the court invited plaintiffs to petition for rehearing en banc.⁷⁰The FTC credits these outcomes to the growing recognition by the courts that pharmaceutical companies should not be allowed to pay-off generic rivals to stay out of the market.⁷¹

Intel

In December 2009, the FTC sued Intel Corp under Section 5 of the Federal Trade Commission Act, alleging that Intel illegally used its market power to eliminate competition and bolster its monopoly in central processing units ('CPUs').⁷² The FTC alleged that, beginning in 1999, Intel engaged in a pattern of conduct to unfairly block competition and deceive the public to strengthen its monopoly in CPUs by:

• entering into anti-competitive contracts with large computer manufacturers to foreclose the use of competitors' CPUs;

• rewarding computer manufacturers for shutting out competitors' CPUs;

• redesigning key software to adversely affect performance of competitors' CPUs;

• inducing software and hardware suppliers to limit their support of non-Intel CPUs;

• misrepresenting industry benchmark comparisons between its CPUs and those of its competitors; and

• using its market power in CPUs to influence the graphic processing unit ('GPU') market.⁷³

The FTC further alleged that this course of conduct impeded the adoption of non-Intel products and unlawfully allowed Intel to maintain its monopoly in the CPU market and dominance in the GPU market.⁷⁴In an aggressively worded complaint, the FTC emphasised that it was challenging Intel's conduct under Section 5 of the FTC Act, which it contended prohibits conduct that would be permissible under Section 2 of the Sherman Act.⁷⁵The FTC said it would seek to impose significant restrictions on Intel's conduct, including its ability to offer discounted but above cost prices for its products, and to licence competitors to use its intellectual property.

On 4 August 2010, the FTC and Intel announced that they had reached agreement on the terms of a consent order.⁷⁶The consent order prohibits Intel from rewarding computer manufacturers for shutting out Intel's computer chip competitors and from punishing computer manufacturers for doing business with non-Intel suppliers.⁷⁷Additionally, the terms of the consent decree require Intel to:

• maintain a key interface on Intel's mainstream microprocessor platforms that will not limit GPU performance;⁷⁸

• offer to amend the intellectual property agreements with Intel's competitors to allow its competitors to consider mergers and joint ventures without the risk of a patent infringement suit;⁷⁹

• offer to extend a patent licence to Via, a microprocessor competitor, for five additional years;⁸⁰

• refrain from making unjustifiable engineering or design changes to any relevant product that limits the performance of a competitor's relevant product;⁸¹

• make accurate and non-misleading statements when disclosing information about strategic future plans for mainstream microprocessors;⁸² and

• disclose to its customers that Intel compilers discriminate between Intel's and its competitors' chips and reimburse customers who detrimentally relied on Intel's representations about its compiler's functionality.⁸³

Criminal enforcement of the US antitrust laws

Criminal enforcement by the numbers

Criminal antitrust investigations and prosecutions remain a priority for the Obama administration, and 2009 was a particularly active year for the DOJ. Over the course of the year, the DOJ prosecuted more criminal cases than it has in any single fiscal year going back to 1993.⁸⁴It filed 72 cases against 65 individuals and 22 corporations.⁸⁵The DOJ collected over $1 billion in fines in 2009 - the second highest amount of fines collected in a single year in the Antitrust Division's history.⁸⁶With over 144 grand jury investigations pending at the close of 2009, the DOJ's cartel enforcement activities appear unlikely to slow down in 2010.⁸⁷

Recent indictments and pleas in LCD and Air Cargo investigations

The DOJ's near-record collection of fines in 2009 was due in large part to its thin-film transistor-liquid crystal display (TFT-LCD) and air cargo industry investigations. In the TFT-LCD case, the DOJ investigated a number of manufacturers of TFT-LCD panels used in computer monitors, televisions, mobile phones and other electronics.⁸⁸It alleged that the manufacturers were involved in a price-fixing conspiracy from autumn 2001 until the end of 2006.⁸⁹At the end of the conspiracy, the worldwide market for TFT-LCD panels was valued at $70 billion.⁹⁰To date, seven companies and 17 individuals have been indicted as a result of the investigation.⁹¹The companies charged in the conspiracy have agreed to pay criminal fines amounting to more than $890 million.⁹²

In the air cargo case, the DOJ investigated the air transportation industry for claims of price-fixing rates for international air shipments from September 2001 until February 2006.⁹³In the past year, the DOJ indicted an additional six airlines and two individuals in the ongoing investigation.⁹⁴The following companies were charged in the last year: the Luxembourg-based Cargolux Airlines International SA agreed to pay a $119 million fine; Chile-based LAN Cargo and its subsidiary Aerolinhas Brasileiras SA agreed to pay a $109 million fine; Korean Asiana Airlines Inc agreed to pay a $50 million fine; Nippon Cargo Airlines Co Ltd, a Japanese company, agreed to pay a $45 million fine; and EL AL, an Israeli company, agreed to pay a $15.7 million fine. To date, DOJ has collected $1.6 billion in fines from its air cargo price-fixing investigation.⁹⁵

Notes

1

. Senator Barack Obama, Statement for the American Antitrust Institute, 27 September 2007, available at http://www.antitrustinstitute.org/archives/files/aai-%20Presidential%20campaign%20-%20Obama%209-07_092720071759.pdf.

2

. Id.

3

. Dates refer to the agencies' fiscal years. US Department of Justice, Antitrust Division Workload Statistics FY 2000-2009 at 2, available at http://www.justice.gov/atr/public/workstats.pdf (hereinafter DOJ Workload Statistics); US Department of Justice, Antitrust Division, Spring 2010 Update, available at http://www.justice.gov/atr/public/update/2010/criminal-program.html (hereinafter DOJ Spring 2010 Update).

4

. DOJ Workload Statistics, supra note 3 at 3; Performance and Accountability Report Fiscal Year 2009, Fed. Trade Comm'n 36, 17 November 2009, available at http://www.ftc.gov/opp/gpra/2009parreport.pdf (hereinafter FTC Performance and Accountability Report).

5

. FTC Performance and Accountability Report, supra note 4 at 56-57.

6

. DOJ Workload Statistics, supra note 3 at 3-4, 7.

7

. The percentage of transactions receiving a second request that ultimately resulted in a challenge actually decreased in 2009 to 80.6 per cent compared to 90.2 per cent in 2008, suggesting that the agencies spent more time looking closely at some transactions that ultimately did not raise competitive concerns.

8

. Complaint, United States v Ticketmaster Entertainment, Inc, Case No. 1:10-cv-00139, at 5 (DDC 25 January 2010), available at http://www.justice.gov/atr/cases/f254500/254552.pdf.

9

. Id.

10

. Id.

11

. Id.

12

. Id. at 14.

13

. Competitive Impact Statement, United States v Ticketmaster Entertainment, Inc, Case No. 1:10-cv-00139, at 11 (DDC 25 January 2010), available at http://www.justice.gov/atr/cases/f254500/254544.pdf.

14

. Id.

15

. Id. at 9-10.

16

. Final Judgment, United States v Ticketmaster Entertainment, Inc, Case No. 1:10-cv-00139 (DDC 29 June 2010), available at http://www.justice.gov/atr/cases/f260100/260171.pdf.

17

. Id.

18

. Joint Motion to Dismiss Complaint, In re CSL Ltd, Docket No. 9337 (FTC 15 June 2009), available at http://ftc.gov/os/adjpro/d9337/090615jointmodismisscmplt.pdf.

19

. Complaint, In re CSL Ltd, Docket No. 9337, at 3-4 (FTC 27 May 2009), available at http://ftc.gov/os/adjpro/d9337/090527cslcmpt.pdf.

20

. Id. at 8.

21

. Id. at 2.

22

. Id. at 2, 5.

23

. Id. at 6.

24

. Id. at 8.

25

. Id. at 2.

26

. FTC Press Release, FTC Order Restores Competition Lost through Schering-Plough's Acquisition of Merck, 29 October 2009, available at http://www.ftc.gov/opa/2009/10/merck.shtm.

27

. Complaint, In re Schering-Plough Corp, Docket No. C-4268, at 2 (FTC 29 October 2009), available at http://www.ftc.gov/os/caselist/0910075/091029merckscheringcmpt.pdf.

28

. Id. at 3.

29

. Id.

30

. Decision and Order, In re Schering-Plough Corp, Docket No. C-4268, at 21 (FTC 29 October 2009), available at http://www.ftc.gov/os/caselist/0910075/091029merckscheringdo.pdf.

31

. Id.

32

. See supra note 26.

33

. Complaint, In re Schering-Plough Corp, at 3.

34

. Decision and order, In Re Schering-Plough Corp, at 25.

35

. Agreement Containing Consent Orders, In re Pfizer Inc, File No. 091-0053 (FTC 14 October 2009), available at http://www.ftc.gov/os/caselist/0910053/091014pwyethagree.pdf.

36

. Statement of the Federal Trade Commission Concerning Pfizer/Wyeth, 14 October 2009, available at http://www.ftc.gov/os/caselist/0910053/091014pwyethstmt.pdf.

37

. Complaint, In Pfizer Inc, Docket No. C-4867, at 2-3 (FTC 14 October 2009), available at http://www.ftc.gov/os/caselist/0910053/091014pwyethcmpt.pdf.

38

. Id. at 7-8.

39

. Decision and Order, In re Pfizer Inc, Docket No. C-4867, at 35-46 (FTC 14 October 2009), available at http://www.ftc.gov/os/caselist/0910053/091014pwyethdo.pdf.

40

. Id. at 46-52.

41

. FTC Web Site, Horizontal Merger Guidelines Review Project, available at http://www.ftc.gov/bc/workshops/hmg/index.shtml.

42

. Horizontal Merger Guidelines for Public Comment, 20 April 2010, available at http://www.ftc.gov/os/2010/04/100420hmg.pdf.

43

. FTC Press Release, Federal Trade Commission Seeks Views on Proposed Update of the Horizontal Merger Guidelines, 20 April 2010, available at http://www.ftc.gov/opa/2010/04/hmg.shtm.

44

. Public comments filed in response to the agencies' revised draft of the proposed Guidelines are available at http://www.ftc.gov/os/comments/hmgrevisedguides/index.shtm.

45

. See supra note 1.

46

. Christine A Varney, Vigorous Antitrust Enforcement in This Challenging Era, Remarks before the Center for American Progress, 11 May 2009, at 5, available at http://www.justice.gov/atr/public/speeches/245711.pdf.

47

. See DOJ Workload Statistics, supra note 3 at 3.

48

. Id.

49

. FTC Competition Enforcement Database, available at http://www.ftc.gov/bc/caselist/nonmerger/index.shtml.

50

. Id.

51

. 15 USC § 45.

52

. See, eg, Statement of Chairman Leibowitz and Commissioner Rosch, In re Intel Corp, Docket No. 9341, 16 December 2009, available at http://www.ftc.gov/os/adjpro/d9341/091216intelchairstatement.pdf (noting that it is 'more important than ever that the Commission actively consider whether it may be appropriate to exercise its full Congressional authority under Section 5,' given courts' 'concern over class actions, treble damage awards, and costly jury trials'); Concurring and Dissenting Statement of Commissioner Rosch, In re Intel Corp, Docket No. 9341, 16 December 2009, available at http://www.ftc.gov/os/adjpro/d9341/091216intelstatement.pdf (advocating the use of only Section 5 to cover Section 2 claims where the Supreme Court has limited the realm of the Sherman Act).

53

. Stipulation and Proposed Final Judgment, United States v KeySpan Corp, Case No. 1:10-cv-01415 (SDNY 22 February 2010), available at http://www.justice.gov/atr/cases/f255500/255511.pdf and http://www.justice.gov/atr/cases/f255500/255509.pdf.

54

. Complaint, United States v KeySpan Corp, Case No. 1:10-cv-01415, at 2 (SDNY 22 February 2010), available at http://www.justice.gov/atr/cases/f255500/255507.pdf.

55

. Id. at 3.

56

. Id. at 8-9.

57

. Id. at 9.

58

. Competitive Impact Statement, United States v KeySpan Corp, Case No. 1:10-CV-01415, at 8 (SDNY 23 February 2010), available at http://www.justice.gov/atr/cases/f255500/255578.pdf.

59

. See FTC Staff Study, Pay-For-Delay: How Drug Company Pay-Offs Cost Consumers Billions, January 2010, available at http://ftc.gov/os/2010/01/100112payfordelayrpt.pdf (hereinafter FTC January 2010 Pay-For-Delay Report); FTC Report, Emerging Health Care Issues: Follow-On Biologic Drug Competition, June 2009, available at http://ftc.gov/os/2009/06/P083901biologicsreport.pdf.

60

. FTC Web Site, Reporter Resources: Pay-For-Delay in the Pharmaceutical Industry, available at http://www.ftc.gov/opa/reporter/payfordelay.shtm.

61

. See FTC Press Release, FTC Chairman, Members of Congress Call for Legislation to End Sweetheart 'Pay-For-Delay' Deals that Keep Generic Drugs Off the Market, 13 January 2010, available at http://www.ftc.gov/opa/2010/01/payfordelay.shtm; FTC Press Release, Statement by FTC Chairman Jon Leibowitz on Adoption of the Pay for Delay Amendment to the America's Affordable Health Choices Act of 2009 by the House Energy and Commerce Committee, 31 July 2009, available at http://www.ftc.gov/opa/2009/07/pay4delay.shtm; Prepared Statement of the Federal Trade Commission Before the Subcommittee on Courts and Competition Policy, Committee on the Judiciary, United States House of Representatives on Anti-competitive Pay-For-Delay Settlements in the Pharmaceutical Industry: Why Consumers and the Federal Government Are Paying Too Much for Prescription Drugs, 3 June 2009, available at http://www.ftc.gov/os/2009/06/P859910payfordelay.pdf; Prepared Statement of the Federal Trade Commission Before the Subcommittee on Commerce, Trade, and Consumer Protection, Committee on Energy and Commerce, United States House of Representatives on How Pay-For-Delay Settlements Make Consumers and the Federal Government Pay More for Much Needed Drugs, 31 March 2009, available at http://www.ftc.gov/os/2009/03/P859910payfordelay.pdf.

62

. Stephanie Kirchgaessner, 'Move to End Drug Deals with Generic Rivals', Financial Times, 2 July 2010, available at http://www.ft.com/cms/s/0/81793ecc-8601-11df-bc22-00144feabdc0.html.

63

. Id.

64

. See FTC January 2010 Pay-For-Delay Report, supra note 59 at 20.

65

. Complaint, FTC v Watson Pharm., Inc, Case No. 09-00598 (CD Cal 27 January 2009), available at http://www.ftc.gov/os/caselist/0710060/090202androgelcmpt.pdf.

66

. In re AndroGel Antitrust Litig. (No. II), 1:09-md-02084, slip op. (ND Ga 22 February 2010).

67

. Notice of Appeal, FTC v Watson Pharm., Case No. 09-cv-00955 (ND Ga 22 February 2010), available at http://www.ftc.gov/os/caselist/0710060/100610watsonpharmnotice.pdf.

68

. Memorandum Opinion, FTC v Cephalon, Inc, Civ. Action No. 2:08-cv-2141 (ED Pa 29 March 2010), available at http://www.ftc.gov/os/caselist/0610182/100329cephalondecision.pdf.

69

. Brief Amicus Curiae of FTC in Support of Rehearing En Banc, Ark. Carpenters Health & Welfare Fund v Bayer AG, Case Nos. 05-2851 & 05-2852 (2d Cir. 20 May 2010), available at http://www.ftc.gov/os/2010/05/amicus.pdf.

70

. Opinion, Ark. Carpenters Health & Welfare Fund v Bayer AG, Case Nos. 05-2851 & 05-2852 (2d Cir. 29 April 2010) (per curiam), available at http://www.ftc.gov/os/2010/04/100429ciprostatement.pdf.

71

. FTC Press Release, Statement by FTC Chairman Jon Leibowitz Regarding Today's District Court Decision Denying a Motion to Dismiss the Commission's Pay-For-Delay Case Against Cephalon Inc, 29 March 2010, available at http://ftc.gov/opa/2010/03/cephalon.shtm.

72

. Complaint, In re Intel Corp, Docket No. 9341, at 1-5 (FTC 16 December 2009), available at http://ftc.gov/os/adjpro/d9341/091216intelcmpt.pdf.

73

. Id. at 2-3.

74

. Id. at 3.

75

. Id. at 1.

76

. See Decision and Order, In re Intel Corp, Docket No. 9341 (FTC 4 August 2010), available at http://ftc.gov/os/adjpro/d9341/100804inteldo.pdf; Agreement Containing Consent Decree, In re Intel Corp, Docket No. 9341 (FTC 4 August 2010), available at http://ftc.gov/os/adjpro/d9341/100804intelagree.pdf.

77

. Decision and Order, In re Intel Corp, at 9-13.

78

. Id. at 6.

79

. Id. at 6-8.

80

. Id. at 8-9.

81

. Id. at 13.

82

. Id. at 13-14.

83

. Id. at 16.

84

. DOJ Spring 2010 Update, supra note 3.

85

. See DOJ Workload Statistics, supra note 3.

86

. See DOJ Spring 2010 Update, supra note 3.

87

. See DOJ Workload Statistics, supra note 3.

88

. US Department of Justice Press Release, Taiwan LCD Producer Agrees to Plead Guilty and Pay $30 Million Fine for Participating in LCD Price-Fixing Conspiracy, 29 June 2010, available at http://www.justice.gov/atr/public/press_releases/2010/260175.pdf.

89

. Id.

90

. Id.

91

. Id.

92

. Id.

93

. US Department of Justice Press Release, Three International Airline Companies Agree to Plead Guilty to Price Fixing on Air Cargo Shipments, 9 April 2009, available at http://www.justice.gov/atr/public/press_releases/2009/244630.htm.

94

. See DOJ Spring 2010 Update, supra note 3.

95

. Id.