Here are some of the developments in antitrust news this past week that we found interesting and are following.

Teva Settles Cephalon Generics Case With F.T.C. for $1.2 Billion.  The Federal Trade Commission has announced that its seven-year lawsuit against Cephalon, now owned by Teva Pharmaceutical Industries, would be settled for $1.2 billion, the largest amount ever secured by the competition watchdog.  The settlement resolves the FTC’s charges that Cephalon bought off generic drug makers selling far cheaper versions of Provigil, Cephalon’s prescription drug for sleep disorders.

Apple loses bid to disqualify antitrust monitor – U.S. court.    The U.S. Court of Appeals has rejected Apple’s bid to disqualify an antitrust compliance monitor appointed after the technology giant was found liable for conspiring with five publishers to raise e-book prices.  Although the appellate court said some of the charges against monitor Michael Bromwich gave it “pause,” the court held that Judge Denise Cote did not abuse her discretion in rejecting Apple’s bid to end his two-year appointment early.

As Facebook Sweeps Across Europe, Regulators Gird for Battle.  In recent months, European regulators have placing Facebook under the microscope.  While one arm of the European Union is looking into whether Facebook and other tech companies unfairly favor their own services over those of rivals, at least five data protection watchdogs across the region are questioning Facebook’s privacy settings.  Plus, in a case that could have broad implications for many tech companies, the European Union’s top court will issue a preliminary decision next month on whether Facebook can continue transferring user data between Europe and the United States.

Reynolds American wins U.S. antitrust approval to buy rival Lorillard.   Reynolds American has won U.S. antitrust approval to buy smaller rival Lorillard in a $27.4 billion deal that would combine the No. 2 and No. 3 U.S. cigarette companies.  The Federal Trade Commission said it would allow the acquisition to go forward on condition that the companies sell four cigarette brands – Winston, Kool, Salem and Maverick, which will be purchased by Imperial Tobacco Group.

Here are some of the developments in antitrust news this past week that we found interesting and are following.

E.U. Commission Opens Antitrust Inquiry Into E-Commerce Sector.  European antitrust officials have opened an investigation into whether large technology companies are impeding competition in online shopping, the latest in a string of inquiries in Europe focused on the web’s biggest players.  According to Margrethe Vestager, Europe’s antitrust chief, the review will focus on how electronics, clothing, shoes and online content are bought and sold online, and whether e-commerce companies have created artificial barriers that prevent Europeans from buying goods across national borders.

Top California court revives Cipro antitrust case.  The California Supreme Court has revived an antitrust class action accusing a drugmaker of paying to keep a generic version of Bayer AG’s antibiotic Cipro off the market.  The unanimous opinion marks the first time an appellate court has tackled so-called “pay for delay” deals since a landmark 2013 decision by the U.S. Supreme Court held that such deals may be illegal.  The plaintiffs in the antitrust class action – a group of non-profits and individuals in California who bought Cipro – claim that Bayer (which settled the claims in 2013) violated California antitrust law by paying Barr Pharmaceuticals, (since bought by Teva Pharmaceutical Industries) $398 million to refrain from marketing a generic version of Cipro until Bayer’s patent on the drug expired.

Sysco Urges Judge to Save US Foods Deal in Antitrust Duel.  Sysco Corp.’s takeover of US Foods Inc. would create an industry “behemoth” in food distribution, eliminating intense head-to-head competition between the companies, a U.S. lawyer argued at the start of a courtroom battle over the merger.  The FTC is asking a federal judge to block the $3.5 billion deal, arguing the merger would give Sysco a dominant share in an industry where it’s the biggest player, and lead to higher prices for restaurants, hotels, school cafeterias and other customers.

SandRidge is target of antitrust grand jury probe: filing.    SandRidge Energy is the target of a federal grand jury investigation into violations of antitrust law related to the leasing of oil and gas properties, according to a regulatory filing by the company.  The Oklahoma-based company said in an SEC filing that the transactions subject to the government’s inquiry date from 2012 and prior years.

By Owen Glist

The U.S. Court of Appeals for the Federal Circuit has upheld summary judgment against SmartMetric, a maker of biometric smart cards, affirming dismissal of its claims that Visa and MasterCard infringed its patent for credit and debit card technology.

After a previous unsuccessful suit against Visa, MasterCard, and American Express over the same patent relating to “contactless” cards (see SmartMetric Inc. v. Am. Express Co., 476 F. App’x 742 (Fed. Cir. Apr. 11, 2012)), SmartMetric again sought damages in excess of $13 billion in this suit over “contact” cards embedded with chips.  The gravamen of SmartMetric’s claim was that the Visa and MasterCard networks infringed a patent for a system to access a database of local network service providers for a given payment card transaction.

The district court granted summary judgment on several alternative grounds, including SmartMetric’s unexcused failure to properly disclose its experts and expert reports and to show sufficient “direct” control by Visa and MasterCard over users of the allegedly infringing system — i.e., banks, merchants, and cardholders.  But the court’s primary ground was that SmartMetric failed to provide any reliable evidence that defendants’ systems actually functioned the way SmartMetric alleged.

click here for more »

Pool Corp., the largest distributor of swimming pool supplies in the U.S., has filed a motion in the U.S. District Court for the Eastern District of Louisiana to dismiss class action antitrust claims, arguing that the complaint fails to state a claim.

Plaintiffs allege that Pool Corp. entered into illegal agreements with three different manufacturers: Pentair Water Pool and Spa, Hayward Industries, and Zodiac Pool Systems. These agreements were allegedly designed to keep new distributors of swimming pool supplies from entering the market.

Pool Corp. is seeking to dismiss the claims of two different purported classes – direct purchasers (such as pool supply stores, golf courses and hotels) and indirect purchasers. The plaintiffs allege that Pool Corp. sought to suppress competition by buying out 13 competitors in five regions of the U.S. over the course of 14 years, and that new pool supply distributors closed at a rate of 40 percent because of Pool Corp.’s dominance.

The motion to dismiss is partially based on the fact that similar complaints of anticompetitive conduct were already investigated and resolved by the Federal Trade Commission in November 2011. Pool Corp. settled the investigation and agreed to FTC recommendations, including training staff members about antitrust laws.

FTC Commissioner J. Thomas Rosch had argued the FTC investigation should have been closed due to a lack of evidence that the Pool Corp.’s actions actually harmed competitors or consumers.

In addition to relying on its settlement of the FTC investigation, Pool Corp. argues that the case should be dismissed because the plaintiffs fail to satisfy the elements of a claim under Section 1 of the Sherman Act. According to Pool Corp., the plaintiffs failed to adequately allege that the agreements with the manufacturers existed or that these agreements were made with the specific goal of restricting trade.

Pool Corp. also asked the Court to consider whether or not “nationwide” is a specific enough geographic market to support a monopolization claim.

The U.S. Court of Appeals for the Third Circuit has  vacated a district court award in excess of $367,000 for e-discovery costs to the winning defendants in Race Tires America Inc. v. Hoosier Racing Tire Corp.

As we reported in an earlier edition of Antitrust Today, Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania ordered the plaintiff, Race Tires America Inc., to pay these costs after granting summary judgment in favor of the defendants.

Race Tires argued that defendants entered into exclusive contracts which allegedly shut it out of the dirt oval track market. Judge McVerry held that Race Tires could not show it sustained an antitrust injury because such contracts are permissible when a sports entity freely decides it wants exclusivity and has precompetitive, good faith or business motives for entering into the agreements.

After the Third Circuit affirmed the ruling in 2010, the district court clerk taxed almost all of the defendants’ e-discovery costs to the plaintiff under 28 U.S.C. § 1920(4). The statute allows recovery of “(f)ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

At issue on appeal was whether section 1920(4) authorizes the taxation of e-discovery vendor charges for data collection, preservation, searching, culling, conversion and production as either “exemplification” or “making copies” of materials where necessary for use in the case.

In a decision by Judge Thomas Vanaskie, the Third Circuit sharply reduced the recovery to $30,000. The court held that none of the vendors’ work qualified as “exemplification” and that the only “copying” that was performed was the scanning of hard copy documents, converting native files to the .tif format, and the transfer of videotapes to DVDs.

The appellate court reasoned that shifting the costs of e-discovery was inconsistent with the “American rule” against shifting the expense of litigation to the losing party and that “[n]either the language of § 1920(4), nor its history, suggests that Congress intended to shift all the expenses of a particular from of discovery – production of ESI – to the losing party.”