The MoginRubin blog offers informative analysis and insightful commentary on timely issues related to competition and antitrust actions, mergers, acquisitions and associated regulatory and legislative activity.
Healthcare insurance companies, like other insurers, have enjoyed an exemption from U.S. antitrust laws since March 1945 when President Roosevelt signed the McCarran-Ferguson Act, one of his last major acts before his death one month later. On Jan. 13, 2021, President Trump signed a bill repealing this immunity for health insurers. Titled the Competitive Health Insurance Reform Act of 2020 (CHIRA), the measure was passed by the House of Representatives on Sept. 21, 2020, and by the Senate on Dec. 22. The exemption remains in place for other ...
In its 56-page Feb. 13 report, the GAO listed three issues that should be considered: Which agency or agencies should oversee Internet privacy. What authorities an agency or agencies should have to oversee Internet privacy, including notice-and-comment rulemaking authority and first-time violation civil penalty authority. How to balance consumers’ need for Internet privacy with industry’s ability to provide services and innovate. The Federal Trade Commission, the lead agency when it comes to Internet privacy, has not issued privacy regulations ...
On October 7, 2020, the European Commission accepted commitments offered by Broadcom Inc., ending its investigation into the chipmaker. Although a step in the right direction, the commitments address only a subset of Broadcom’s anticompetitive conduct in just a few discrete chip markets. Stated differently, the commitments do not alter the anticompetitive status quo in most product markets in which Broadcom operates. This is particularly true for companies operating in the U.S. because the commitments offer fewer protections outside of the ...
Dan Mogin, Timothy LaComb, Steven Benzand Jayme Weber
November 11, 2020Suit says company improperly uses market power to achieve exclusivity. The U.S. Department of Justice and 11 states have sued Google LLC in federal court in Washington, D.C. for unlawfully maintaining its position as “monopoly gatekeeper for the internet” by blocking competitors in Internet search and search advertising markets. “For many years, Google has used anticompetitive tactics to maintain and extend its monopolies in the markets for general search services, search advertising, and general search text advertising -- the cornerstone of ...
By Jonathan Rubin The case involves questions "on the frontier edges" of U.S. antitrust law, according to the judge overseeing it. It is a legal battle between a $4 billion company (Epic Games, Inc.) and a $260 billion company (Apple, Inc.) in a market that's valued at $160 billion globally. At the center of the legal battle is the distribution of a digital one: a mobile application played by hundreds of millions of gamers on billions of devices around the world. It's no small matter, and Apple has scored a temporary victory in the suit, which ...
At a conference earlier this year on the Committee on Foreign Investment in the United States, or CFIUS, Assistant Treasury Secretary Thomas P. Feddo spoke with pride of the Committee’s increased funding, jurisdiction, expenditures, and more aggressive review activities. Feddo began the speech by detailing how CFIUS has implemented the 2018 Foreign Investment Risk Review Modernization Act, or FIRMMA, which expanded its jurisdiction and increased its funding. The Committee has invested in new IT infrastructure and personnel, and since May of ...
Dan Mogin, Jonathan Rubin, Jennifer M. Oliver, and Timothy Z. LaComb
October 15, 2020Why and how your organization's purchasing, legal, and finance professionals can form a formidable defense against profit-killing price-fixing, bid-rigging, monopoly and other anticompetitive schemes that could be costing your company millions. The chief executive started her day like any other. Hot coffee and a scan through the day’s business news. Then came a sinking feeling. A question popped into her head that she could not answer. More questions followed. She had just read an article about how several suppliers in the food industry had ...
'Apple wanted us out of the App Store.' In January 2018 Apple investors complained publicly about the lack of parental controls on their popular devices. At one point even CEO Tim Cook expressed concern about the addictive nature of social media. Vancouver-based app entrepreneur Justin Payeur saw this as validation for the Boomerang Parental Control app he was developing. What is really needed, apparently, is an app to move apps through the Apple Store app approval process. Reasons for rejecting and requiring changes to the app were numerous, ...
At the end of the beloved 1939 film The Wizard of Oz, Dorothy famously says to her Auntie Em, "There's no place like home!" It's one of the best known quotes from one of the happiest of happy endings to ever come to movie theaters. But there was much more going on behind the scenes than just Munchkinland. The year before the film was released movie studios and the government clashed when the government enjoined certain of the studios' most lucrative distribution and licensing practices. Alleging a breach of antitrust law, the government ...
Altria must show it was failing in the e-cig business for deal to survive. Altria Group, Inc. and JUUL Labs, Inc. fired back at the FTC’s April complaint alleging Altria’s acquisition of 35% of JUUL and the corresponding agreements violated the Sherman Antitrust Act and the Clayton Act. The Commission argued the deal unlawfully reduced competition and consolidated the e-cigarette market, and would allow the companies to split the resulting monopoly profits. In their answers, the companies argued the FTC’s conclusions were clouded by a ...
While rare, this use of CFIUS powers may be a harbinger. Making good on his threats and citing national security risks, President Donald J. Trump signed an executive order on Friday, Aug. 14, 2020, demanding the unwinding of a Chinese company's acquisition of what would become TikTok, the short-form video-sharing-app sensation. This begins the unspooling of Beijing-based ByteDance Ltd.'s $1 billion acquisition of Shanghai-based Musical.ly in 2017, the predecessor to TikTok. ByteDance, which is incorporated in British territory in the Cayman ...
When should 'marketplace platforms' be treated as markets controlled by operators? It poses a new brand of antitrust problem: private parties controlling platforms that work like marketplaces. This week, Epic Games, maker of mobile app juggernaut "Fortnite," filed suit in federal court against Apple, and then Google, for banning the app from their stores. "Epic Games has defied the App Store Monopoly," the company announced via social media. "In retaliation, Apple is blocking Fortnite from a billion devices." Epic drew fire from the platforms ...
The Antitrust Division of the U.S. Department of Justice is taking a close look at the announced $7.1 billion acquisition of market disruptor Credit Karma by Intuit Inc. According to an internal Intuit memo obtained by ProPublica, the DOJ is looking at “the influence that Intuit’s purchase of Credit Karma will have on consumer tax preparation platforms and [the] software market.” And, for the reasons discussed below, there is a good chance the DOJ will ultimately conclude the merger violates the Clayton Act and file suit to challenge it. Photo ...
The sky is not falling. Opinion limited to 'at will' contracts. When a third party craters a contract, you and the other contracting party almost certainly will suffer demonstrable financial ramifications. But if your contract can, by its own terms, be terminated at-will, the California Supreme Court has now commented, any financial rewards and expenses associated with the agreement fall more into the "prospective" category. Therefore, the court determined, if a third party, a competitor for example, interferes with your at-will agreement they ...
The CEOs of Amazon, Apple, Facebook, and Google are scheduled to appear before the U.S. House of Representatives’ Judiciary Antitrust Subcommittee on Monday, July 27, 2020 in a hearing titled, “Online Platforms and Market Power, Part 6: Examining the Dominance of Amazon, Apple, Facebook, and Google.” Modified House rules currently permit witnesses to attend virtually. According to the Subcommittee’s press release, it has been scrutinizing the companies’ domineering presence in their respective markets and the corresponding “adequacy of ...
One of U.S. Attorney General Bill Barr's team has come to his defense against allegations that he has mismanaged the Department of Justice. Assistant Attorney General for the Antitrust Division Makan Delrahim sent a letter to ranking House Judiciary Committee members on July 1, 2020, rebuking the testimony given by DOJ trial attorney John Elias a week earlier that the AG used DOJ resources for political and personal reasons. Elias testified after receiving a subpoena from House Judiciary Committee Chairman Jerrold Nadler in a hearing titled ...
California Attorney General Xavier Becerra says the COVID-19 virus has “shone a light” on the impact consolidation in the healthcare market has had on Californians’ access to “affordable, quality healthcare.” A bill that would give the AG more power to oversee healthcare industry consolidation, monitor anticompetitive conduct, and enforce corresponding laws is getting closer to becoming law. A wave of scrutiny over the healthcare, pharmaceutical, and medical device industries is taking place at the national level as well, but industry ...
On May 5, 2020, U.S. Judge Nina Gershon of New York granted certification to a class of end-payor plaintiffs (EPPs) who purchased the successful dry-eye treatment Restasis, created and manufactured by Allergan, Inc. in In re: Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litigation, 1:18-md-02819-NG-LB (E.D.N.Y 2018). The certified class includes individuals with and without health insurance, and third-party payors like union benefit funds that pay or provide reimbursement for drug costs for people they insure. The EPPs alleged that ...
The National Collegiate Athletic Association’s rules limiting education-related benefits for student-athletes are impermissible restraints on trade that violate Section 1 of the Sherman Antitrust Act according to a unanimous decision by the Ninth Circuit U.S. Court of Appeals. The decision enables student-athletes to receive a variety of education-related, non-cash benefits above the “cost of attendance,” which previously functioned as the cap on compensation they could receive. But it also maintained the narrative that demand for college ...
On Feb. 24, 2020, the Seventh Circuit U.S. Court of Appeals revived refusal-to-deal and tying claims brought against Comcast Corp. by Viamedia Inc. The case drew significant attention from antitrust practitioners given its potential impact on the viability of refusal-to-deal claims brought under Section 2 of the Sherman Act, which has long been the source of debate among antitrust practitioners. Comcast recently said it will ask the Supreme Court to review the Seventh Circuit’s decision. Photo by Cupcake Media on Unsplash Background Cable ...
Jonathan Rubin, Timothy Z. LaComb
June 16, 2020When researching the state of play between antitrust enforcers and Google, where does one start? Ah yes, Google “Google antitrust.” (Yes, the platform is so ubiquitous it’s a verb, joining the likes of Xerox, FedEx, and Photoshop.) On June 8, 2020, that search returned 14 million hits in less than half a second, demonstrating both the remarkable search capability we’ve all become accustomed to (and a remarkable product can be a sign of a “natural” monopoly) as well as the momentum building against the company for how it achieved and now ...
Driven by competitive pressure and pandemic-related losses, Uber Technologies Inc. has expressed its intention to acquire competitor Grubhub Inc. to improve its position in the digital food-delivery market, where its Uber Eats service lost ground in 2019. A group of Democratic lawmakers says this is a “troubling,” opportunistic, and anti-consumer move that U.S. antitrust law enforcers should watch closely. Photo by Kai Pilger on Unsplash Sen. Amy Klobuchar of Minnesota, former presidential candidate and senior member of the Senate Antitrust ...
[Editor's Note: An earlier version of this post inaccurately described the work of the Federal Trade Commission. The authors wish to thank Bruce Hoffman, Director of the Bureau of Competition at the FTC from August 2017 to December 2019, who kindly provided useful commentary. Changes made June 11, 2020.] In 2001, Time Magazine editor Michael Elliott asked legendary General Electric CEO Jack Welch to reflect on the termination of his dream acquisition of Honeywell International, not at the hands of U.S. antitrust agencies but by the European ...
Jonathan Rubin, Timothy Z. LaComb
May 19, 2020Antitrust law doesn't take a back seat to bankruptcy. While bankruptcy is no one's idea of a dream, the beauty of the U.S. Bankruptcy Code is that it makes a business failure less of a nightmare for debtors and creditors alike. Litigation is stayed. Debts are put on hold. Assets of the estate may be purchased -- once certain conditions are met -- "free and clear."But, like anything, especially when it comes to law, details are a tricky thing. That applies especially to the nuanced practice of antitrust law. Are court-ordered asset sales under ...
Live Nation Threatens Anyone Who Doesn’t Play Along, Plaintiffs Allege Concert-goers tired of paying “supracompetitive fees” on ticket purchases from Ticketmaster LLC filed a class action against the company and its parent, promoter Live Nation Entertainment, Inc., in U.S. District Court for the Central District of California on April 28 for abusing its more than 70% share of the primary ticketing market (i.e. where tickets are initially sold) for major concerts. The merged companies are also aggressively deploying anticompetitive tactics in ...
In an interview with Politico’s Leah Nylen and Betsy Woodruff Swan, Rep. David Cicilline (D-R.I.) explained that he wants the next coronavirus relief package to include a moratorium on mergers while the U.S. economy struggles to face the pandemic. According to the report, the Rhode Island Congressman’s proposal would allow deals “only if a company is already in a bankruptcy or is otherwise about to fail.” Any other deals would be on hold at least until the national pandemic declaration is lifted. Photo by Jakob Owens on Unsplash In prepared ...
Insurance coverage works when risk is spread across a large number of policyholders. But for the insurance market to function properly losses must be somewhat predictable and experienced by only small percentage of insureds. Claims models for accidents everyone knows will happen – auto collisions and trees falling on houses – are acceptably accurate. In this relatively predictable world, that means an accident happens, a claim is filed, and, usually, the insurer pays. Photo by tam wai on Unsplash But when claims fly off the actuarial charts – ...
Living by the adage “if you can’t beat them, join them,” tobacco giant Altria Group, Inc. acquired a 35% stake in e-cigarette market leader Juul Labs, Inc. in December 2018. As part of the deal, Altria agreed to not compete with Juul in the e-cigarette market for six years and use its marketing and financial resources to help Juul further cement its dominance. Photo by Spencer Davis on Unsplash This deal was always going to face significant antitrust headwinds from regulators. Not only is the transaction an agreement by competitors to ...
Reuters has reported that Gray Television Inc. has withdrawn its $8.5 billion offer to buy Tegna Inc. due to the potential impact of the COVID-19 outbreak on regional TV stations like those operated by Tegna. The news agency also reported that Volkswagen’s CFO cited the “curveball” the outbreak has thrown at its liquidity in stating that, while the automaker remains interested in buying U.S. truck-maker Navistar, it must first “conserve cash as it shuts down plants and throttles back production.” The New York Times, meanwhile, has reported ...
On March 10, 2020, the U.K.’s Competition and Markets Authority gave Cengage and McGraw-Hill an ultimatum – provide remedies that cure the competition problems caused by the merger or face a Phase II inquiry. Then, on March 24, 2020, the CMA rejected the merging parties’ proposed remedies and said it will proceed to a Phase II investigation. The CMA is required to complete the Phase II probe and issue a decision on the proposed merger by Sept. 7, 2020. The CMA joins several other nations that have raised concerns about the merger, including ...
STANLEY SPORKIN (1932-2020) A personal note from Dan Mogin I read today that Stanley Sporkin recently passed away. The American legal community has lost a giant and all law-related flags should be at half-mast in his honor. His obituaries in the New York Times and the Washington Post do an excellent job of summing up his magnificent career as head of SEC enforcement, General Counsel to the CIA and as a federal district court Judge in D.C. I didn’t know Judge Sporkin personally, but he was a big influence from afar on my career; an aspirational ...
On March 10th, the U.K. Competition and Markets Authority (CMA) gave Cengage Learning and McGraw-Hill an ultimatum: address competition concerns or face a Phase II review. After finishing its Phase I investigation, the CMA concluded the proposed merger “gives rise to a realistic prospect of a [substantial lessening of competition] as a result of horizontal unilateral effects in relation to the supply of [higher education] titles for 51 [higher education] courses in the U.K.” The CMA believes the loss of competition could lead to higher prices ...
Timothy Z. LaComb, Jennifer M. Oliver
March 24, 2020For believers in free markets it is important that they operate free of “shenanigans,” Food & Drug Administration (FDA) Commissioner Stephen Hahn said during a joint workshop with the Federal Trade Commission (FTC) on March 9, 2020. The event set in motion the agencies’ joint effort to address the difficulties in biosimilar uptake – a market rife with anticompetitive practices - and to restrict dissemination of false and misleading information on biosimilar efficacy or safety. “Shenanigans” and “whack-a-mole” became catch phrases during ...
Live Nation Entertainment, Inc., owner of some of the world’s biggest music venues, events and festivals, is currently operating under what the Department of Justice’s Antitrust Division calls “the most significant enforcement action” of an existing antitrust consent decree in its history, one that has secured stricter and longer lasting terms designed to rein in the event conglomerate’s anticompetitive behavior. Photo by Yvette de Wit on Unsplash The DOJ action began more than a decade ago after the company acquired Ticketmaster ...
Big Tech mergers make big headlines, but there is much more to a deal than how much money changes hands. More important questions need to be answered, such as how much future innovation might be lost, how much healthy competition will be eliminated, and what volumes of consumer data will suddenly be controlled by one or only a handful of companies. Some lower-cost acquisitions fly under the radar of antitrust law enforcement agencies. But should they? Criticized for ignoring “killer acquisitions” and going too easy on Big Tech – approving more ...
The Federal Trade Commission (FTC) announced on Jan. 28, 2020, that the “size-of transaction threshold” for reporting proposed mergers and acquisitions for 2020 under Section 7A of the Clayton Act will adjust from $90 million to $94 million (see page 2). The FTC revises these figures each year based on changes in the nation’s gross national product. The 2020 thresholds under Section 8 of the Clayton Act that trigger prohibitions on certain interlocking memberships on corporate boards of directors are $38,204,000 for Section 8(a)(l ) and ...
“If that procedure sounds unfair, that’s because it is.” That’s how Axon Enterprise, Inc. describes the inner workings of the Federal Trade Commission, calling it a “constitutional anomaly” that has the near absolute power, free of political accountability, to both prosecute and pass final judgment on the appropriateness of corporate mergers and acquisitions. Axon designs and manufactures non-lethal police equipment, such as body cameras and digital evidence management systems. In 2018 it acquired Vievu LLC, which Axon says was a failing ...
Jonathan Rubin, Jennifer M. Oliver
January 13, 2020Copy equipment giant HP Inc. turned down the much smaller Xerox Holdings Corp.’s acquisition overtures twice in one week as the exchange of statements between corporate leadership grows increasingly hostile. From an anticompetition perspective, the case raises the interesting question of how the “failing firm” defense could come into play. A deal would bring together the world’s second largest copier company, HP, a company whose leadership position was once so strong that its very brand name, derived from the word “xerographic” in 1938, became ...
DNA sequencing giant Illumina, Inc.’s proposed $1.2 billion acquisition of Pacific Biosciences of California Inc. has drawn opposition in the U.K. and the attention of the U.S. Federal Trade Commission (FTC). The invaluable systems these and other companies provide are used to study genetics in order to develop crucial medicines and medical treatments. The serious headwinds greeting this merger make it clear that the life sciences industry has matured to the point where antitrust considerations are significant. The evolving technological ...
Moderator & Speaker: Daniel J. Mogin | Managing Partner, MoginRubin LLP Speakers: Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor: Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions. Highly publicized ...
Now it’s the direct purchasers of one of the nation’s most delicious and protein-rich commodities -- beef. The purchasers claim in a new class action complaint that the country’s largest meatpackers conspired to reduce the capacity of their slaughter and packing plants in order to pay less on one end of the supply chain so they could raise prices on the other. Some of the Big Beef defendants are also defendants in on-going price fixing and supply manipulation cases pending against Big Chicken and Big Pork. Perhaps Big Meat views supply ...
California Governor Gavin Newsom has signed several amendments to the California Consumer Privacy Act of 2018. Issues range from the timing of employer disclosure requirements to data gathered and used in consumer identity verification, vehicle recalls and warranties, consumer credit checks, and business due diligence work. You can read MoginRubin Partner Jennifer M. Oliver's take on the changes in her Oct. 10 post, titled CCPA Changes Sent to Governor’s Desk as January Effective Date Draws Closer and Compliance Costs Loom Large. Going into ...
California Gov. Gavin Newsom has signed AB 824, known as the “Pay-for-Delay" bill, blocking pharmaceutical companies from paying generic drug makers to not develop and bring lower-cost medicines to market. The law makes these so-called “reverse payment” settlements of patent disputes – which the Federal Trade Commission says cost consumers $3.5 billion a year – “presumptively anticompetitive.” The new law provides that an agreement resolving a patent infringement claim is anticompetitive if the generic drug or biosimilar drug makers receive ...
Jennifer M. Oliver, Timothy Z. LaComb
October 17, 2019The government has sued to block Novelis Inc.’s proposed acquisition of Aleris Corp., each makers of an essential lightweight product for the American auto industry, saying the deal would violate the Clayton Act. With only four North American producers of flat-rolled aluminum auto-body sheet, the merger of two of them would lock up 60 percent of the market, harming car buyers and hampering innovation, the Antitrust Division says. Novelis is a $12.3 billion Canadian company headquartered in Atlanta, and is wholly owned by Hindalco Industries ...
Several amendments to the California Consumer Privacy Act of 2018 are headed to Gov. Gavin Newsom’s desk. Issues range from the timing of employer disclosure requirements to data gathered and used in consumer identity verification, vehicle recalls and warranties, consumer credit checks, and business due diligence work. One bill, which attempted to address the non-discriminatory provisions of the CCPA and its potential impact on sellers’ popular customer rewards programs, didn’t make it out of the Senate. Going into effect in January and still ...
September 30, 2019, was a big day for college athletics. Alongside Lakers’ star LeBron James (who ironically skipped college), California Governor Gavin Newsom signed the Fair Pay to Play Act (FPTPA), which permits collegiate athletes in California to profit from the use of their names, images and likenesses (NILs) beginning in 2023. The governor said “colleges and universities reap billions from these student athletes’ sacrifices and success but block them from earning a single dollar. That’s a bankrupt model — one that puts institutions ...
Timothy Z. LaComb, Jennifer M. Oliver
October 05, 2019Even in the year 2019, $5 billion is a lot of cash. The Federal Trade Commission’s penalty against Facebook in that amount for enabling Cambridge Analytica’s infamous waggery – resulting in the release of 50 million users’ personal data for political purposes – is the largest ever imposed on any company for violating consumer privacy. It’s 20 times bigger than any imposed anywhere in the world, the FTC boasted. But when you’re making $56 billion a year, some would say, you cut the check then buy yourself another island. While Facebook’s ...
The world’s leading talent agencies claim the two Writers Guild of America (WGA) unions violated antitrust laws by executing what they call an illegal boycott that prevents talent agents from collecting talent-packaging fees – fees they receive for pulling together creative teams such as directors, actors and writers for film and television and pitching the “package” of talent to a studio. William Morris Endeavor Entertainment Inc. (WME), United Talent Agency, and Creative Artists Agency say the alleged conspiracy restricts competition, noting ...
Assistant Attorney General Makan Delrahim announced on July 11, 2019, the Antitrust Division’s new policy for incentivizing antitrust compliance, saying the government “will consider compliance at the charging stage in criminal antitrust investigations,” credit that was explicitly not considered previously. The Division announced revisions to its Justice Manual and published a document to guide prosecutors’ evaluation of corporate compliance programs at the charging and sentencing stages. “The Antitrust Division is committed to rewarding ...
Commercial U.S. buyers of Farmed Atlantic Salmon have sued many of the leaders of what they maintain is a global cartel that has colluded to fix and drive up prices. The European Commission is investigating them as well, kicking off its probe with simultaneous raids of plants operated by Norwegian companies. In Re Farm-Raised Salmon and Salmon Products Litigation is the combination of several lawsuits brought by salmon purchasers. According to one of those complaints, filed by Beacon Fisheries on May 15, 2019, the salmon producers “must ...
Five companies filed separate lawsuits earlier this year in the Western District of New York against the nation’s leading manufacturers of caustic soda, a chemical commodity widely used in manufacture and processing of everything from paper to pharmaceuticals. The defendants control at least 90% of the domestic caustic soda supply and have used their market power to charge artificially inflated prices, plaintiffs allege. The plaintiffs are Miami Products & Chemical Co., Amrex Chemical Co., Perry's Ice Cream Company Inc., Midwest Renewable ...
The committee has been playing a bigger role on the global M&A stage, figuring prominently in the U.S.-China trade war and putting the breaks on some giant acquisitions. The Committee on Foreign Investment in the United States (CFIUS) is authorized to review -- and block, if necessary -- transactions involving foreign investment to determine whether they threaten national security. The committee operates pursuant to Section 721 of the Defense Production Act of 1950, authorizing the president to suspend or prohibit transactions. The ...
The Supreme Court held today that iPhone users are “direct purchasers” of apps from Apple’s wildly popular multi-billion-dollar App Store and have standing to sue, despite Apple’s arguments to the contrary. In Apple v. Pepper, the court held in a 5-4 decision that the users meet the definition of “direct purchasers” as required by Supreme Court precedent (Apple Inc. v. Pepper, et al., Sup. Ct., No 17-204). Apple’s store is the only legal place iPhone users can purchase iPhone apps, most of which are created by independent contractors. These ...
In an Initial Decision announced May 7, Chief Administrative Law Judge D. Michael Chappell upheld a Federal Trade Commission complaint challenging the consummated merger of two prosthetics manufacturers that are top sellers of prosthetic knees equipped with microprocessors. According to the FTC’s December 2017 administrative complaint, microprocessor prosthetic knees or MPKs, which use microprocessors to adjust the stiffness and positioning of the joint in response to variations in walking rhythm and ground conditions, provide a stable ...
The German competition regulatory authority has decided to bar Facebook from combining user data with data it scrapes from non-Facebook sources -- a major spring of information used by the company -- unless the user expressly gives permission. The agency says Facebook has used its restrictive user agreement to dominate the German market. Facebook, which is appealing the decision, says competition there is “fierce.” Facebook’s terms and conditions require users to allow such data gathering as a precondition to participating in the social ...
Bipartisan legislation to improve the cybersecurity of Internet-connected devices was introduced March 11 in both the Senate and the House of Representatives. The legislation -- The Internet of Things (IoT) Cybersecurity Improvement Act of 2019 -- would require that devices purchased by the U.S. government meet minimum security requirements. The legislation was introduced in the Senate by U.S. Sens. Mark R. Warner (D-VA) and Cory Gardner (R-CO), co-chairs of the Senate Cybersecurity Caucus, along with Sens. Maggie Hassan (D-NH) and Steve ...
Democrats and Republicans in both chambers of Congress have come out against drug industry practices such as paying generic drug companies to delay the release of lower-priced versions of their products. The tactic drew criticism as anticompetitive at least and immoral at worst. Rep. David N. Cicilline (D-RI), for example, said the average hospital stay for a child with cancer is $40,000; organ transplants often cost more than $1 million; and drug costs have increased 200% in 10 years. Ten years is also the time it took for the FTC to settle ...
“Today’s big tech companies have too much power — too much power over our economy, our society, and our democracy. They’ve bulldozed competition, used our private information for profit, and tilted the playing field against everyone else. And in the process, they have hurt small businesses and stifled innovation.” –Sen. Elizabeth Warren, March 8, 2019 In her statement, released via the insight and commentary website Medium.com, Warren said she wants everyone to play by the rules no matter how powerful they are. She wants tech companies of the ...
In a move that could redefine how 2.6 billion people use Facebook Messenger and Facebook’s acquired WhatsApp and Instagram apps, The New York Times reported on Jan. 25 that Facebook CEO Mark Zuckerberg plans to integrate the platforms. The announcement turned up the volume on antitrust and privacy warnings directed at the social media giant. The Times cited unnamed sources involved in the project who said the apps will continue as stand-alone services, but their “underlying technical infrastructure will be unified” so people can chat across ...
The Federal Trade Commission’s Bureau of Competition has set its sights on the U.S. technology sector. On Feb. 28 it launched a task force that will monitor the industry, investigate potential anticompetitive conduct, and taking enforcement action as necessary. In announcing the new team, FTC Chairman Joe Simons said "it makes sense for us to closely examine technology markets to ensure consumers benefit from free and fair competition. Our ongoing Hearings on Competition and Consumer Protection in the 21st Century are a crucial step to deepen ...
Half of all merger and acquisition deals are subjected to post-closing price adjustment claims. Traditionally, these disputes were resolved through working capital adjustments, earn-outs or indemnification payouts — solutions that frequently cause unwelcome delay and increased contentiousness. Attorneys often found their requests for more diligence at odds with the clients’ desire to close the deal quickly. Representations and warranties insurance policies were developed to address the dealmaker's need to leave no stone unturned while ...
Jennifer M. Oliver, Counsel, MoginRubin
February 28, 2019Trial started this week in Delaware Chancery Court in a colossal dispute that followed the thunderous collapse of what would have been a $48.9 billion merger of health insurance titans Anthem Inc. and Cigna Corp. Each insurer accuses the other of tanking the deal. As with many legal disputes, the case rests largely on the definition of a single phrase. In this instance it is three words: "reasonable best efforts." And, as with many legal questions, the answer is "it depends." Cigna claims Anthem was required under the merger agreement to lead ...
"Let’s face it: getting out the door can be hectic sometimes." That's one of the problems Google Assistant is supposed to address. But when announcing that "The Google Assistant is Coming to Nest Secure" earlier this month, Google may have pushed the enhancement out the door a little too quickly. According to a consumer privacy group, the tech giant should first have mentioned the device’s “hidden microphone” to regulators at the time of a major acquisition designed to catapult Google’s offerings in the smart home space. In a letter dated Feb. ...
Subjects like immigration, health care, criminal justice reform, taxes, international trade, and Russia dominate political news coverage. But one new Democratic candidate determined to challenge President Trump in 2020 wants to see to it that antitrust gets a great deal more attention. In fact, she has already begun. On Feb. 1, 2019, U.S. Senator Amy Klobuchar (D-MN) – nine days before announcing her bid for the presidency on a snowy Sunday in Minnesota -- introduced two bills designed to "modernize antitrust enforcement and promote ...
Antitrust concerns by regulators led to the demise of 29 mergers around the globe in 2018, which was a record year for the number of merger notifications. In its Global Trends in Merger Control Enforcement Report, the UK-based Allen & Overy law firm put the monetary impact of these would-be deals at $52.3 billion, with the industry and manufacturing, energy, and transportation sectors getting the most attention. The digital, tech, media and telecom sectors appear to be enjoying less attention than others. "This fits with the concerns ...
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