Blog o’ Blogs September

September 2016, Volume 8, Number 8

Back from an interesting summer break, we find a few high-level decisions in both Europe and the USA stirring up the waters and causing quite a few waves. Drugmakers again are under fire for pricing decisions, with tech companies not far behind on the controversy list. Join us this month as we look at what happened during a not-so-restful Summer Break.

Why have Mylan launched a generic EpiPen?
Farasat Bokhari(Competition Policy Blog)
In a new development surrounding the controversy of price hikes of Mylan’s lifesaving drug EpiPen, the manufacturer announced that it will introduce a generic version, and sell the new drug at half the price of its branded version…

Refusal to Sell Bulk-Size Packs, Without More, Is Not Price Discrimination – “Size is Not a Service”
Don T. Hibner Jr. (Antitrust Law Blog)
Clorox Sales Company and Clorox Company produce a range of consumer goods. Clorox sold goods to Plaintiff Woodman’s Food Market, a local grocery store with locations in Wisconsin and Illinois. Clorox also sold to discount warehouses such as Costco and Sam’s Club.

You Can’t Use the Sherman Act to Wrangle an Invitation to a Political Debate
Howard Ullman (My Distribution Law)
So held the District Court for the District of Columbia in Johnson v. Commission on Presidential Debates, No. 15-1580 (RMC) (D.D.C. August 5, 2016). There, the Libertarian and Green Parties challenged decisions of the Commission on Presidential Debates to allow only the Democratic and Republican candidates for president to participate.

Argentine Antitrust Commission Opens Consultation Process for Draft Bill
Julián Peña (Kluwer Competition)
On August 30, 2016, the Argentine Antitrust Commission (“CNDC”) has opened a public consultation process for its draft bill reforming its competition law. The main characteristics of the draft bill include: Institutional framework, The creation of an independent agency, the National Competition Authority (the “ANC”), as a decentralized and independent agency…

M&A activity predicted in the marijuana industry
Jacob Cawker(Deal Law Wire)
The marijuana industry has been high on analysts’ lists ever since Justin Trudeau and the Liberal Party were elected in late 2015. Some analysts predict the legalized pot industry to be a $5 billion market in Canada alone. Thus, it is clear that a new and lucrative market is burgeoning…

On the Apple State aid decision
Alfonso Lamadrid (Chilling Competition)
The Commission’s decision in the Apple case is responsible for putting EU State aid law under the world’s spotlight (even if some of the issues that are being re-discovered are pretty settled or had already been raised by the previous decisions on tax rulings).

Sun Sets on Solar Panel Manufacturer’s Predatory Pricing Claim as Sixth Circuit Affirms Dismissal
Ellen Caro and Howard Ullman (Orrick Antitrust)
Proving once again that antitrust law protects competition, not competitors, on August 18, 2016 the Sixth Circuit affirmed a decision from the Eastern District of Michigan dismissing a plaintiff’s Sherman Act § 1 predatory pricing complaint for failure to state a claim…

Galp Energía España: The General Court’s failed attempt at enlarging its unlimited jurisdiction
Ivan Pico (Kluwer Competition)
A recent judgment in the Spanish bitumen cartel, Galp Energía España,1 has shed some light on the intensity of the EU Courts’ legality review under Article 263 of the Treaty on the Functioning of the European Union (“TFEU“) in competition cases…

Antitrust Division Announces Three More Corporate Capacitor Pleas
Robert Connolly (Cartel Capers)
The Antitrust Division has announced that three more companies have agreed to plead guilty in the electrolytic capacitor investigation. According to a DOJ press release of August 22, Rubycon Corp, Elna Co, and Holy Stone Holdings Co, have agreed to plead guilty to fixing the prices of electrolytic capacitors sold in the United States and elsewhere.

Competition law developments in East Asia – August 2016
(Norton Rose Fulbright)
Competition law enforcement in the region concerning distribution practices adopted by parties without market power has commonly focused on resale price restrictions; and the imposition of heavy fines for resale price maintenance practices can be observed in several jurisdictions, including China, Indonesia, Japan, Korea and Taiwan.

Germany Plans to Introduce New Merger Notification Test
Till Steinvorth (Orrick Antitrust)
The German government has recently published a bill that would significantly amend the criteria for determining whether an M&A transaction is subject to German merger control…

The Latest Front in the Patent Wars: Attacking Innovation in Universities
Kristian Stout (Truth on the Market)
It’s not quite so simple to spur innovation. Just ask the EU as it resorts to levying punitive retroactive taxes on productive American companies in order to ostensibly level the playing field (among other things) for struggling European startups. Thus it’s truly confusing when groups go on a wholesale offensive against patent rights — one of the cornerstones of American law that has contributed a great deal toward our unparalleled success as an innovative economy.

FTC and DOJ Antitrust Division Request Comments on Proposed Revisions to Antitrust Guidelines for Licensing IP
David Goldstein, Jay Jurata, Emily Luken and Alex Okuliar(Orrick Antitrust)
After several turbulent years of litigation and policy wrangling, many have asked whether the federal antitrust agencies should rewrite their two-decade oldAntitrust Guidelines for the Licensing of Intellectual Property (“Guidelines”).