The competition list for 2016

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It was another busy year for antitrust news.  Here’s my look back at the top ten FTC-related antitrust developments for the year that was 2016 (in chronological order):

  1. The FTC’s first “no-AG commitment” case, alleging that Endo Pharmaceuticals paid first-filers Impax Laboratories and Watson Laboratories to delay entry of a generic formulation with a promise not to launch authorized generic versions of Endo’s Opana ER and Lidoderm.  In related news, our latest review of agreements between brand-name and generic  manufacturers shows that the number of potentially unlawful reverse-payment settlements is on the decline, as is the number of agreements with no-AG commitments. (March)
  2. In an exclusive dealing case against a first-to-market firm that relied on long-term exclusive contracts to exclude rivals from sales opportunities, the FTC charged Invibio, the maker of implant-grade polyetheretherketone (PEEK), with using an all-or-nothing strategy to obtain exclusive contracts with the world’s largest medical device companies.  This tactic maintained its monopoly and prevented new entrants from developing into fully effective competitors.  Coupled with the Supreme Court’s denial of cert in McWane Inc. v. FTC and last year’s case against Cardinal Health, there is more clarity to the legal standards for unilateral conduct. (April)
  3. The district court opinion in FTC v. Staples, Inc., which blocked the merger and rejected arguments that Amazon Business and a patchwork of local and regional office supply companies would restore competition lost if Staples acquired Office Depot. (May)
  4. Superior Plus Corp. and Canexus Corp. abandon plans after the Commission voted to challenge their proposed merger, charging that it would likely lead to anticompetitive reductions in output and higher prices for sodium chlorate, as well as raise the risk of coordination in an already vulnerable market. (June)
  5. In the FTC’s largest pharmaceutical divestiture order to date, Teva Pharmaceuticals agreed to sell the rights and assets associated with 79 generic drugs to resolve charges that its $40 billion acquisition Allergan would eliminate important current and future competition for a wide range of pharmaceutical products. (July)
  6. The FTC charged 1-800 Contacts with orchestrating a collection of anticompetitive agreements with rival online contact lens sellers to suppress competition in online search advertising auctions and to restrict truthful and non-misleading internet advertising to consumers. This matter is proceeding before an administrative law judge. (August)
  7. In the first invitation to collude case involving a distributor with both a vertical and horizontal relationship to the invitee, the FTC charged Fortiline with illegally soliciting a firm that both supplied it with product and competed with it in distributing the company’s products. Fortiline settled the FTC’s charges by agreeing not to enter or invite any agreement with competitors to raise or fix prices, divide markets, or allocate customers.  (August)
  8. A new HSR form and option to file by DVD, the latest reform to ease the process of premerger notification.  (August)
  9. The Third Circuit’s opinion in FTC v. Penn State Hershey Medical  Center/PinnacleHealth System, which blocked the merger and preserved competition for general acute care services sold to commercial insurers in the Harrisburg, Pennsylvania area. (September)
  10. The Seventh Circuit’s opinion in FTC v. Advocate/NorthShore, which reaffirmed the Commission’s approach to defining local geographic markets for hospital services and sent the matter back to the district court for further proceedings. (October)

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