By Jeffrey I. Shinder and Ankur Kapoor

As antitrust law evolves to address new problems posed by ever-shifting dynamics in industries both old and new, two schools of thought are vying for control of challenges to reverse-payment settlement agreements that resolve patent infringement litigation brought by pharmaceutical manufacturers against potential generic competition.

One school favors the establishment of bright-line rules to give firms and courts predictability in the law.  The Supreme Court’s still controversial Illinois Brick decision, which generally limits damages recoverable under federal antitrust law to direct purchasers, is one example of this approach.  (Expressing the contrary view on whether indirect purchasers should have standing to recover their damages are the many state antitrust laws allowing indirect-purchaser recovery and the Supreme Court of Canada’s rejection of the Illinois Brick doctrine.)

Another school of thought emphasizes that, in antitrust law, substance and economic reality should trump form because rigid, bright-line rules inevitably encounter cases in which application of a rigid rule leads to undesirable results, or, worse, give firms with market power a roadmap on how to exclude competition without fear of antitrust scrutiny.  This school of thought is grounded in the recognition that, because restraints often arise in factual and legal contexts as complex as the industries in which they arise, they cannot properly be evaluated without assessing and balancing their anticompetitive and procompetitive effects.   While this inquiry can sometimes be taxing, it is often necessary to reach a result that promotes unrestrained competition and markets – which generally are valued by all schools of thought.  The Supreme Court reaffirmed this principle in 2010 with its decision in American Needle v. NFL, which held that the National Football League could be considered a “combination” or “conspiracy” subject to Section 1 of the Sherman Act, depending on the specific factual and economic circumstances of the NFL’s member football teams’ conduct at issue.

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By David Scupp

The antitrust battle between the NCAA and its former players over the use of their names and likenesses might finally be coming to a head.

Last Friday, Judge Claudia Wilken of the U.S. District Court for the Northern District of California ordered the NCAA to engage in settlement talks in the class action case of In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, with the class representatives, who claim that the NCAA and its member schools illegally conspired to prevent players from earning compensation from the licensing of their name and likeness rights.

This order comes on the heels of a summary judgment hearing on February 20, 2014, when Judge Wilken stated in no uncertain terms that “[t]he whole case is not going away on summary judgment.”  That means that, barring successful settlement negotiations, the case is very likely to go to trial.  A trial date has been set for June 9, 2014, in Oakland, and is slated to last 19 days.

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By Aymeric Dumas-Eymard

Visa has just closed a chapter of its antitrust woes in the European Union.

On February 26, 2014, the European Commission announced that it had rendered legally binding the commitments offered by Visa Europe to cap its yearly weighted average Multilateral Interchange Fees (MIFs) for consumer credit card transactions at a level of 0.3% of the value of the transaction.  The cap will apply with immediate effect to cross-border credit transactions within the EEA (i.e., where the issuer and the acquirer are in different EEA countries) and with a two-year delay to domestic credit card transactions in certain EEA countries.

Visa offered these commitments to resolve proceedings opened by the European Commission in 2008 with respect to both debit and credit card cards.  In 2010, the Commission accepted Visa’s commitment to cap its debit card MIFs at 0.20% of transaction value.  However the investigation continued with respect to credit card transactions.  The Commission issued a supplementary Statement of Objections in July 2012, setting forth its continuing concerns with Visa’s practices in the credit card space and, in particular, the level of its interchange fees.

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