By Ankur Kapoor

Antitrust enforcers returned to their offices after Labor Day, refreshed and ready to tackle what they view to be anticompetitive practices by pharmaceutical companies to delay entry of lower-priced generic drugs.

In addition to recent enforcement efforts by antitrust regulators, two federal courts have issued opinions supporting the theory underlying the enforcers’ new efforts to police so-called “reverse payments.”

On September 8, 2014, the Federal Trade Commission (FTC) filed an antitrust complaint in the U.S. District Court for the Eastern District of Pennsylvania against AbbVie Inc. (a spinoff of Abbott Laboratories’ portfolio of proprietary pharmaceutical and biologic drugs) and generic giant Teva Pharmaceuticals. FTC v. AbbVie Inc. is the FTC’s first action against “reverse-payment” or “pay-for-delay” agreements between patent-holders and generic competitors since the FTC’s 2013 Supreme Court victory in FTC v. Actavis, Inc., which held that such agreements could run afoul of the antitrust laws under certain circumstances.

click here for more »

A View from Constantine Cannon’s London Office

By Irene Fraile

The European Commission has imposed fines totaling 138 million euros on smart card chips producers Infineon, Philips and Samsung for breaching European Union antitrust laws that prohibit cartels.

According to the Commission, from September 2003 to September 2005, the companies engaged in a cartel to restrain competition relating to the smart card chips used in mobile telephone SIM cards, bank cards, identity cards, passports, pay TV cards, and various other applications.  The cartel used a network of bilateral contacts in order to coordinate responses to customers’ requests to lower prices and, ultimately, keep prices up.  The companies discussed and exchanged sensitive commercial information on pricing, customers, contract negotiations and production capacity, thereby damaging competition by reducing uncertainty concerning future behavior in the market.

Although some of the cartelists took measures to conceal the collusion, one of them – Renesas (a joint venture between Hitachi and Mitsubishi) – finally blew the whistle and revealed the existence of the cartel to the antitrust authorities under the Commission’s Leniency Programme.  As a result, Renesas received full immunity and avoided a fine of more than 51 million euros.  Samsung, which also cooperated with the investigation, received a 30 percent reduction in the level of its fine in return for its cooperation.

click here for more »

By Allison F. Sheedy

The biggest regulatory review of the year—the Federal Communications Commission’s examination of Comcast Corp.’s proposed acquisition of Time Warner, Inc.—has taken an interesting foray into analyzing competitive tactics, with the FCC’s invitation to media companies to confidentially raise concerns about Comcast’s use of most favored nation (“MFN”) provisions in its contracts to purchase content.

The Wall Street Journal reported yesterday that the FCC has invited companies, including Discovery Communications, to offer feedback about Comcast’s MFNs to aid its evaluation of the proposed take-over.  The FCC also publicly released a request for information to Comcast that included (among many other items) details about each agreement in which Comcast has used an MFN.

In a typical form, an MFN is a contractual promise obtained by a buyer from a seller that the seller will not give a better price to any other purchaser.  A buyer usually seeks an MFN clause as a form of protection to ensure that its competitors do not get cost or other advantages.

click here for more »

Why you should take notice if you do business in China

By Aymeric Dumas-Eymard

Almost six years to the day after China began enforcing its Antimonopoly Law (“AML”), China’s antitrust authorities are marking the anniversary with a bang as they followed up last week’s raids of U.S. software giant Microsoft with a second round of raids today.

China’s antitrust regulator the State Administration for Industry and Commerce (“SAIC”) announced on its website today that it was following up last week’s raids of Microsoft’s offices in China with new raids of the software giant and its partner in China, Accenture PLC.  SAIC stated that it raided Microsoft offices in Beijing, Liaoning, Fujian and Hubei.  The SAIC also raided the Dalian offices of Accenture, which performs financial work for Microsoft.

Today’s raids follow up on SAIC’s raids of July 28, 2014, in which more than 100 law enforcement officers raided Microsoft offices in Beijing, Shanghai, Guangzhou and Chengdu.  The antitrust enforcers reportedly questioned Microsoft executives and seized documents, electronic data (including emails) and computers.

click here for more »

A View from Constantine Cannon’s London Office

By Irene Fraile

The General Court of the European Union has dismissed Intel’s appeal of the European Commission´s decision fining the computer chip manufacturer a record 1.06 billion euros for breaching EU competition law.

The European Commission imposed the fine on Intel in May 2009, after finding that Intel abused its dominant position in the x86 CPU microprocessors market by attempting to foreclose Advanced Micro Devices (AMD), its main rival, between 2002 and 2007.

According to the Commission’s complaint, which was filed in 2000, Intel (a) had conditioned rebates to strategically important customers on their agreeing to source all, or almost all, of their supplies from Intel, and (b) had paid certain customers (HP, Acer, Lenovo) to halt, delay or limit the launch of specific products incorporating chips from AMD. The Commission also concluded that Intel had attempted to conceal these anticompetitive practices, which formed part of a long-term strategy to squeeze AMD out of the market.

click here for more »