ICYMI: Top Ten for ‘15

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It’s been a busy year for antitrust news. And in case you missed any particular event, here’s my list of the top ten FTC-related antitrust developments for 2015:

  1. The Supreme Court’s decision in NC State Bd. Dental Examiners v. FTC, which established that the state action defense does not apply to the actions of a state board on which a controlling number of decisionmakers are active market participants unless the conduct is actively supervised by the state. (Later in the year, FTC staff issued guidance for state officials on when and how a state may provide active supervision for a regulatory board.) (February)
  1. The DC Circuit’s opinion in FTC v. Boehringer Ingelheim, setting forth the boundary between highly protected opinion work product and fact work product in the context of an FTC investigation of reverse payment settlements. (February)
  1. The Eleventh Circuit’s decision affirming the Commission decision in McWane, Inc. that the company unlawfully maintained its monopoly by imposing an illegal exclusive dealing policy on its distributors. (April)
  1. Obtaining $1.2 billion in disgorgement and meaningful injunctive relief from Cephalon, arising from claims that Cephalon entered anticompetitive reverse payment settlements with four potential generic competitors. (May)
  1. The Sharing Economy workshop, where industry stakeholders and experts discussed the competitive dynamics of emerging peer-to-peer platforms, which use technology to establish online marketplaces that match buyers and sellers of all sorts of products and services. (June)
  1. The Third Circuit decision in Lamictal Direct Purchaser Litigation, which adopted the FTC’s position, urged in our amicus brief, that a no-AG commitment may be a reverse payment under FTC v. Actavis. (June)
  1. The district court opinion in FTC v. Sysco, which relies on old-school antitrust principles along with modern economic tools to analyze every element of a merger case. (June)
  1. The Commission’s decision and order in Dollar Tree/Family Dollar, requiring the divestiture of 330 stores to preserve competition in local markets. The analysis relied in part on GUPPI analysis, as explained in the Commission’s statement accompanying the order. (July)
  1. The Commission’s Section 5 Statement, setting out the principles that guide the Commission when deciding to use its standalone authority under Section 5 of the FTC Act to combat unfair methods of competition. (August)
  1. Third Point/Yahoo!, an HSR violation based on investor conduct that fell outside the ‘investment only’ exemption. (August)

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