Antitrust Law Source

Antitrust law in a COVID-19 world: Do we care? Should we care?

Let’s face it, antitrust concerns probably do not top your list of legal concerns at this time. So, it is fair to ask whether companies should worry much about antitrust right now.

The short answer is, yes. The rules have not changed, and those who do not heed them now may pay dearly later. At the same time, we realize you probably have better things to do than read another alert that recites a long list of antitrust dos and don’ts. So, we will briefly summarize what has happened to date and provide some guidance for these times. This blog is part one in a three-part series dealing with antitrust and price gouging. We will also offer podcasts on these topics.

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Made in the USA? It better be

The Federal Trade Commission remains vigilant about protecting the integrity of “Made in USA” claims. This is evidenced by its recent settlement with Williams-Sonoma Inc. The FTC claimed that that the well-known home products and kitchen wares company deceptively represented that certain of its products were made in the U.S. when, in fact, they were wholly imported, or contained significant imported materials or components. Those products included its Goldtouch Bakeware products, Rejuvenation-branded products, and Pottery Barn Teen and Pottery Barn Kids-branded upholstered furniture products. Williams-Sonoma had claimed that all or virtually all of the products were made in the U.S.

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Federal Trade Commission’s interlocking directorate thresholds announced

On Jan. 28, 2020, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), as well as certain other values under the HSR rules. These new thresholds will become effective Feb. 27, 2020.

As background, the HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceeds a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s values, which are adjusted annually based on changes in the GNP, take effect in a few weeks. The FTC also adjusted the safe harbor thresholds that govern interlocking directorates in competing companies.

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Putative class counsel in generic drug antitrust MDL can’t get a slice of the opt-out pie . . . At least not yet

Before even moving for certification of the putative classes they seek to represent, Interim Class Counsel (ICC) in the In re Generic Pharmaceuticals Pricing Antitrust Litigation sought to insure they would get not only their own piece of the pie, but also a sizable sliver of everyone else’s. Claiming they are prosecuting potentially “the largest cartel case in the history of the United States,” the ICC petitioned the court for preemptive orders that would have placed in escrow 10 percent of any judgment or settlement entered into by parties who have opted out and brought their own suit directly (the Direct Action Plaintiffs). Subject to additional court approval, this common fund would then have been distributed among the ICC, ostensibly compensating them for their work, albeit with funds from cases involving plaintiffs they do not represent. Not surprisingly, the briefing between the various plaintiff groups on the issue was quite acrimonious. After nearly six months, Judge Cynthia Rufe, who presides over the sprawling MDL in the Eastern District of Pennsylvania, entered a two-page order denying the ICC’s request . . . at least for now. Continue Reading

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