U.S. Supreme Court Unanimously Narrows The FTC’s Enforcement Powers
On April 22, 2021, the U.S. Supreme Court abated the Federal Trade Commission’s (“FTC”) restitution power in a unanimous opinion delivered by Justice Stephen Breyer. AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct. 1341 (2021). Notably, the Court declared that the language of Section 13(b) of the FTC Act does not empower the FTC to obtain court-ordered equitable monetary relief such as restitution or disgorgement. In so doing, the Court resolved a circuit split on the issue and reversed the Ninth Circuit’s decision.
FTC’s Cancer Detection Antitrust Suit Transferred To California Southern District
On April 20, 2021, the United States District Court for the District of Columbia granted defendants’ motion to transfer a motion for preliminary injunction brought by the Federal Trade Commission (“FTC”) alleging that defendants’ plans to enter into a merger agreement violated Section 5 of the FTC Act and Section 7 of the Clayton Act. Federal Trade Commission v. Illumina, et al., No. 21-873 (D.D.C. 2021). The Court found that the U.S. District Court for the Southern District of California was a more appropriate venue for litigation of the case on the basis that it would be easier for most of the witnesses to get to that district, among other factors. Preliminary injunction hearings are currently set for August 24, 2021.
Courts Finds It Lacks Jurisdiction To Entertain Challenge To FTC Civil Investigative Demand
On February 3, 2021, Judge R. David Proctor of the United States District Court for the Northern District of Alabama granted the Federal Trade Commission’s motion to dismiss a complaint filed by the Board of Dental Examiners of Alabama (“Board”) seeking to enjoin a Civil Investigative Demand (“CID”) that the FTC had issued to the Board. Bd. of Dental Exam’rs of Ala. v. Fed. Trade Comm’n, Case No. 2:20-cv-1310-RDP (N.D. Ala. 2021). The court held that it lacked subject-matter jurisdiction to entertain the complaint because the Board failed to meet the final agency action and exhaustion requirements.
Revised Market Definition For Patents Still Fails To State Plausible Claims Against Investment Manager
On January 6, 2020, Judge Edward M. Chen of the United States District Court for the Northern District of California granted defendants’ motion to dismiss. Intel Corp., et al. v. Fortress Investment Group LLC, et al., No. 19-cv-07651-EMC (N. D. Ca. 2021). Plaintiffs alleged that defendants conspired to aggregate and assert essential patents against plaintiffs, which harmed competition in 13 alleged markets for patented technologies. Plaintiffs asserted this conduct violated Sherman Act § 1, Clayton Act § 7, as well as unfair competition law under state and FTC statutes. The Court dismissed plaintiffs’ complaint with prejudice as to the FTC Act claim as well as the other claims as they related to several product markets. It dismissed without prejudice claims as to the other markets to the extent plaintiffs could further amend their claims.
Eastern District Of Pennsylvania Allows Hospital Merger To Proceed
On December 14, 2020, Judge Gerald Pappert of the United States District Court for the Eastern District of Pennsylvania denied the Federal Trade Commission’s (“FTC”) emergency motion for an injunction pending appeal. Federal Trade Commission, et al. v. Thomas Jefferson University, et al., 2:20-cv-01113 (E.D. Pa. Dec. 14, 2020). The decision comes after the district court, on December 8, denied the FTC’s request to enjoin Jefferson Health from acquiring Albert Einstein Healthcare Network. The FTC has appealed the December 8 decision and sought an injunction pending that appeal to prevent the acquisition from going forward on December 15 in accordance with the stipulated terms of a prior temporary restraining order entered in the case. The Court denied the FTC’s motion, explaining that the emergency motion—rather than maintaining the status quo—would alter the parties’ circumstances by imposing an injunction where there was none.
Fifth Circuit Reverses Decision Of Immediate Appealability Of State Action Immunity Defense
On October 2, 2020, the United States Court of Appeals for the Fifth Circuit reversed a district court’s ruling staying an administrative proceeding brought by the Federal Trade Commission (the “FTC”) against the Louisiana Real Estate Appraisers Board (the “Board”). Louisiana Real Estate Appraisers Bd. v. United States Fed. Trade Comm’n, No. 19-30796, 2020 WL 5869072 (5th Cir. Oct. 2, 2020). The Fifth Circuit found that the district court lacked jurisdiction to stay the FTC proceeding because the Commission’s order denying the Board immunity under the state action doctrine did not constitute final agency action under the Administrative Procedure Act, nor did the collateral order doctrine apply. The practical effect of the ruling is the Board will be forced to defend its challenged regulation in the FTC proceeding before taking an appeal.
FTC And State Regulators Bring Enforcement Action In Southern District Of New York Against “Pharma Bro” Martin Shkreli
On Monday, January 27, 2020, the Federal Trade Commission (“FTC” or “the Commission”) and the New York Attorney General filed suit in federal court in the Southern District of New York against Martin Shkreli and Vyera Pharmaceuticals based on allegations of market monopolization. FTC v. Vyera Pharmaceuticals, LLC, No. 1:20-cv-00706 (S.D.N.Y. filed Jan. 27, 2020). The case has been assigned to U.S. District Judge Denise L. Cote. Shkreli, commonly referred to in the media as “pharma bro,” gained notoriety for behavior that led to his federal incarceration for securities fraud in 2017. The Complaint alleges that Shkreli and others engaged in an unlawful scheme to block low-cost generic competition and maintain a monopoly on Daraprim, an essential drug used to treat the potentially fatal parasitic infection toxoplasmosis, in violation of the Sherman Act and New York state law. The case is a notable example of close collaboration between federal antitrust enforcers and a state attorney general’s office.
Federal Trade Commission Orders Otto Bock To Unwind Consummated Merger
On November 6, 2019, the Federal Trade Commission (“FTC” or “Commission”) unanimously upheld an Administrative Law Judge’s decision requiring Otto Bock HealthCare North America, Inc. (“Otto Bock”) to unwind its consummated acquisition of Freedom Innovations (“Freedom”).The Commission concluded that the transaction resulted in anticompetitive harm in the market for microprocessor-equipped prosthetic knees (“MPKs”), which offer certain improvements over conventional, mechanical prosthetic knees.The decision represents the first time that the current slate of Commissioners has ordered the unwinding of a consummated transaction.
District Of Columbia Releases Redacted Opinion Detailing Reasoning Behind Decision To Grant Preliminary Injunction In Tronox-Cristal Acquisition
On September 5, 2018, Judge Trevor N. McFadden of the United States District Court for the District of Columbia granted the Federal Trade Commission’s request for a preliminary injunction preventing Tronox Ltd. (“Tronox”) from completing its proposed $2.4 billion acquisition of National Titanium Dioxide Company Ltd. (“Cristal”) until after a final ruling in the FTC’s administrative proceedings challenging the deal. Federal Trade Commission v. Tronox Ltd., et al., 1:18-cv-01622 (TNM) (D.D.C. Sept. 12, 2018).Tronox intends to appeal and will consider whether to proceed with a divestiture to resolve potential competitive concerns.