Antitrust Law Source


Episode 25
Consumer data breaches

What happens if your personally identifiable information is stolen, but no harm has come to you…yet? Do the eyes of the court feel that simply the fear of harm warrants relief? Jay and Ryan Graham discuss the differing decisions to date and how things may evolve in the future.

Episode 24
Representative evidence – Good, bad? The Supreme Court speaks

As we’ve reported previously, Tyson was challenging the certification of a class of employees who sued for unpaid time related to donning and doffing protective gear. Jay discusses the implications of the Supreme Court’s allowance of representative evidence to prove classwide liability and how the Court’s ruling may (or may not) impact future class actions.

Episode 23
Are data breaches covered under insurance policies?

In defending against a class action case where patient information was found online for months without being secured, the insurance company was found to have a duty to defend the defendant, who held an insurance policy that covered the publication of patient information. The case, Travelers Indemnity vs. Portal Healthcare, is important because it’s one of the first decisions to rule on whether data breach litigation is covered under commercial insurance policies.


DOJ challenges healthcare system’s use of anti-steering clauses

In its continuing fight against rising healthcare costs, the Justice Department (DOJ) has sued Charlotte, North Carolina’s largest healthcare system for using a common healthcare contracting tool, the anti-steering clause. U.S. and the State of North Carolina v. The Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Healthcare System (CHS), Case No. 3:16-cv-00311, filed on June 9, 2016.

A few years ago, the DOJ attacked another healthcare contracting tool, the most-favored-nation clause, which insurers employed to guarantee they would receive the lowest rates on any given service. According to the DOJ, those clauses, when utilized by dominant healthcare systems, stifle competition and contribute to rising healthcare costs because providers cannot offer lower rates to other insurers without violating the most-favored-nation clause. The DOJ’s work had an effect too, as legislation banning the clauses has passed in a number of states. Now, the DOJ and the state of North Carolina have placed anti-steering clauses in their crosshairs. Continue Reading

New FDA food safety rule spans stakeholders from farm to fork

My colleagues Brian Augustine and Phil Calabrese recently authored an informative piece on a new FDA rule which impacts stakeholders in the food, transportation and hospitality industries. As many in the agribusiness will find this of interest, I wanted to take a moment to share the article with you.

From “FDA New Food Safety Rule Spans Stakeholders From Farm to Fork:”

“The rule imposes a broad array of new regulatory requirements that apply to shippers, receivers, loaders, and carriers by motor vehicle and rail engaged in the transportation of food, whether or not the food is offered for or enters interstate commerce. The core provisions impose new requirements relating to vehicles and equipment, formalized quality assurance operations, required training programs for employees and a host of new record-keeping and reporting requirements.”

Read the full publication here.

You win some, you lose some – the story of the FTC’s week

Last week was an exciting week in the world of merger challenges. Decisions were issued by federal courts regarding the Federal Trade Commission’s (FTC) efforts to preliminarily block two different mergers – one involving office supply retailers, the other, hospitals. The FTC was able to convince one judge that its case had merit, but not the other. And while we won’t know Judge Sullivan’s reasons for granting the preliminary injunction blocking the Staples/Office Depot merger (FTC v. Staples, No. 1:15-cv-02115 (D.D.C. May 10, 2016)) until later this month (the opinion is currently under seal), an apparent contradiction in the federal government’s policy towards healthcare consolidation may have tilted the scales against the FTC for Judge Jones in FTC v. Penn State Hershey Medical Center, No. 1:15-cv-02362 (M.D. Pa. May 9, 2016). Continue Reading

ABA Section of Antitrust Law Spring Meeting 2016: Clarifying liability in hub-and-spoke conspiracies

Last in our series on the ABA Antitrust Section’s 2016 Spring Meeting, but certainly not least, we bring you Jetta’s summary of the panel discussion on hub-and-spoke conspiracies. These conspiracies seem to be in vogue now, with the Apple (e-book) case prominent among them. Not surprisingly, the government and the defense bar sees these cases very differently.

Kudos to our associates for preparing these summaries. We hope you have enjoyed them. Stay tuned for future articles and podcasts.

-Jay Levine

The concept of “hub-and-spoke” conspiracies can be found in cases dating back to at least 1939, most notably, the Supreme Court’s decision in Interstate Circuit v. United States. Such conspiracies involve both horizontal agreements, meaning agreements among competitors, and vertical agreements, which are agreements among parties at different levels of the distribution chain. In hub-and-spoke conspiracies, there has to be at least one vertical participant, which is referred to as the “hub.” The agreements between the hub and the competitor participants are the “spokes,” and the agreement among the competitors forms the “rim.” Continue Reading