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e-Discovery
A New Filing Expectation - Will “Twombly” Reduce Fishing Expeditions?, by
Mary Mack.
Article discusses potential applicability of the recent Supreme Court decision Bell Atlantic Corp. v. Twombly, on e-discovery. Plaintiffs now must allege some factual basis before making such a claim that could result in significant discovery costs. Previously, a plaintiff could get to the discovery phase with some predictability and then look for facts to support antitrust or parallelism. Now the burden will be on the plaintiff to come in with at least some facts, or face dismissal. There will be many more motions to dismiss in other areas, citing this case.
Federal.
3 pages. Written:
2008. Added:
5-15-2008.
Firm Publication
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Criminal Procedure
Different Rules for Different Suspects, by
Leslie R. Caldwell.
Lawyers practicing whitecollar criminal law may not be aware that the U.S. Department of Justice's policy on publicly identifying individuals suspected but not accused of criminal wrongdoing depends entirely on which part of the department is handling a particular criminal case. There is a serious question whether the department's main justifications for naming uncharged individuals on antitrust carveout lists to motivate corporate cooperation in complex conspiracy cases and to ensure contractual clarity in plea agreements warrant the potentially serious damage to the named individuals' due process rights and reputations.
Non-Specific.
4 pages. Written:
2007. Added:
5-07-2008.
New York Law Journal
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Antitrust
The Criminalization of Consumer Protection— A Brave New World for Defense Counsel, by
Barry J. Cutler.
Legal & ethical questions about advising clients regarding potential criminal exposure & use of Fifth Amendment privilege arise more frequently. This article describes some of these challenging questions and provides some practice tips for dealing with the criminal aspects of consumer protection law practice.
Federal.
6 pages. Written:
2007. Added:
4-02-2008.
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Antitrust
Guidelines For Avoiding Anti-Competitive Bundling, by
G. Michael Halfenger, James T. McKeown and David W. Simon.
Article addresses the important issue of whether a dominant firm's bundled discounts can constitute anti-competitive acts in violation of Section 2 of the Sherman Act. The PeaceHealth decision provides fairly clear guidance for firms that want to offer bundled discounts without running afoul of the antitrust laws.
Federal.
4 pages. Written:
2007. Added:
3-13-2008.
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Antitrust
The Interface of IP Rights and Antitrust Policy in 18 Jurisdictions Worldwide, by
Susan M Hutton.
Article discusses: Under what legislation are intellectual property rights granted? Are there restrictions on how IP rights may be exercised, licensed, or transferred? Do the rights exceed the minimum required by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)?
Federal.
6 pages. Written:
2008. Added:
3-13-2008.
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Health Care
Antitrust Law for Physicians, by
Robert F. Leibenluft.
Survey of issues and cases regarding antitrust law and health care.
Federal.
20 pages. Written:
2005. Added:
11-11-2007.
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Health Care
FTC Finds Evanston Hospital Merger Unlawful, But Refuses To Order Spin-Off, by
Arthur N. Lerner and Michael Paddock.
The FTC in declared that Evanston Northwestern Healthcare Corp. violated antitrust laws by substantially lessened competition in violation of Section 7 of the Clayton Act, but declined to order divestiture of the acquired hospital.
Federal.
4 pages. Written:
2007. Added:
10-16-2007.
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Energy
Developments in Oil and Gas Antitrust, by
Layne Kruse and Anne Rodgers.
This chapter will review recent developments in a variety of competition issues facing the oil & gas industry in the US. In particular, federal courts have recently considered the relationship between joint ventures & price fixing under Sherman Act, role of Federal Energy Regulatory Commission (FERC) & filed rate doctrine, as well as key issues.
Non-Specific.
3 pages. Written:
2005. Added:
4-29-2007.
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Antitrust
Branded Drug Reformulation: The Next Brand vs. Generic Antitrust Battleground, by
Guy V. Amoresano.
A new front is now opening in this ongoing war. This article examines that decision & discusses the question of whether the antitrust laws are the appropriate vehicle for promoting the public policy goals embodied in state drug product selection laws.
Non-Specific.
9 pages. Written:
2007. Added:
4-09-2007.
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Jurisdiction and Venue
Subject Matter Jurisdiction in Antitrust and Business Tort Litigation, by
K. Todd Wallace, Liskow & Lewis.
Discussion of procedural issues commonly encountered in antitrust and business tort litigation. When evaluating choices among federal and state statutory and common law claims potentially available to address marketplace conduct, subject matter jurisdiction often becomes a threshold issue.
Non-Specific.
19 pages. Written:
2006. Added:
3-16-2007.
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Intellectual Property
Intellectual property and competition: Four principles for encouraging innovation, by
Gerald f. Masoudi, U.S. Department of Justice.
Speech discussing interaction between IP and antitrust policies.
Non-Specific.
16 pages. Written:
2006. Added:
3-14-2007.
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Corporate and Securties
2006 M&A Market Review and Outlook, by
Wilmer Hale.
Discusses 2006 M&A activity, including post-closing antitrust challenges.
Non-Specific.
18 pages. Written:
2006. Added:
3-12-2007.
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Antitrust
A Field Guide to Antitrust Issues in Standatd Setting and Patent Pooling, by
Willard K.Tom, Morgan, Lewis & Bockius, LLP.
This article is both a taxonomic guide to the familiar
varieties of issues and a report from the field on some of the latest developments.
Federal.
18 pages. Written:
2005. Added:
3-09-2007.
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Antitrust
Global Investigation & Defense, by
LeBoeuf, Lamb, Greene & MacRae.
The main issues that arise regarding the extraterritorial application of U.S. antitrust laws are (1) the assertion of jurisdiction for conduct that often does not occur in the
United States and (2) comity concerns and cooperation efforts.
Non-Specific.
12 pages. Written:
2006. Added:
3-09-2007.
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Antitrust
Vertical Restraints: Federal and State Enforcement of Vertical Issues, by
Pamela Jones Harbour, Commissioner, Federal Trade Commission.
Discusses differing views of state and federal enforcers regarding vertical restraints. In the Dr. Miles Medical case, the Supreme Court has agreed to review that
minimum resale price maintenance is per se unlawful under the antitrust laws.
Federal.
34 pages. Written:
2007. Added:
3-08-2007.
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Antitrust
Tying: Antitrust Law and Policy, by
Jonathan M. Jacobson.
After Illinois Tool, it is clear that tying soon will be no longer a per se offense – if, indeed, it can be viewed as a per se violation today.
Non-Specific.
11 pages. Written:
2007. Added:
3-08-2007.
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Antitrust
New Challenges Of Proving “Market Power” In Patent Tying Cases, by
Bruce H. Schneider & Matthew W. Siegal.
Some manufacturers of patented goods require customers to purchase related unpatented items. This sometimes may be an illegal tying arrangement. The burden of proof has been clarified in Illinois Tool Works v. Independent Ink, 126 S.Ct. 1281 (2006).
Federal.
11 pages. Written:
2007. Added:
3-07-2007.
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