Category Archives: Antitrust – Competition law

Antitrust and Competition Law news articles, reiews, notes and blog examples.

Hell or High Water for Nidec

The phrase “come hell or high water” is said to have originated in the late 1800s in reference to the conditions cattle herders encountered when they trekked from Texas to the Midwest across large prairies in the summer heat and through deep rivers. In the merger context, a hell or high water (HOHW) clause requires a buyer to take all action necessary, including divestitures, to secure approval from competition authorities. On March 8, 2019 Whirlpool Corp. sued Nidec Corp. in the Southern District of New York alleging that Nidec breached its obligations under their Share Purchase Agreement (SPA) to take all actions required to secure antitrust approvals. The case highlights the importance of antitrust risk sharing provisions in merger agreements and how courts interpret HOHW provisions. The Whirlpool Complaint On April 24, 2018 Nidec and Whirlpool entered into the SPA for Nidec’s $1.1 billion purchase of Whirlpool’s Embraco compressor business unit.….. To continue reading this legal news please click Read full information...

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More Affordable and Innovative Medicines and Treatments in Europe – Has the Competition Enforcement Met the 2009 Objective?

A decade ago, the European Commission conducted a thorough sectoral inquiry into the European pharmaceutical sector that identified antitrust shortcomings impeding access to more affordable and innovative medicines and treatments. Concluding this inquiry by setting priority actions for the years to come, former Competition Commissioner Kroes called for “… more competition and less red tape …” (sic). Since this statement, there has been intense enforcement activity in the sector not only by the European Commission itself, but also by the European Union Member States’ antitrust authorities. In its report on “Competition enforcement in the pharmaceutical sector” issued on January 28, 2019, the European Commission takes stock of their actions in this space. The past enforcement record (2009-2017): intense activity, hard stance towards pharmaceutical companies with the use of novel or less known theories of harm Between 2009 and 2017, no….. To continue reading this legal news please click Read full information...

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Judge Noreika Denies Defendant’s Motion for Finding of Spoliation and for Sanctions Against Plaintiff that Failed to Preserve ESI

By Memorandum Opinion entered by the Honorable Maryellen Noreika in Cignex Datamatics, Inc. v. Lam Research Corp., Civil Action No. 17-320-MN (D.Del. March 11, 2019), the Court denied the motion of defendant Lam Research Corporation seeking a finding of spoliation and entry of sanctions against plaintiff Cignex Datamatics, Inc. for failure to preserve the emails of certain employees of plaintiff that worked on the software development project that was the subject of the breach of contract litigation between plaintiff and defendant. Upon evaluation of the motion, the Court found that, since the issue of spoliation turned on plaintiff’s loss of ESI, Federal Rule of Civil Procedure 37(e) governed the analysis. Id. at*7. The Court did find that plaintiff should have preserved at least some of the email accounts identified by defendant but failed to take reasonable steps to do so after litigation was reasonably anticipated. Id. As to the third threshold issue of Rule….. To continue reading this legal news please click Read full information...

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Consumer Surplus-enhancing Collusions, Patent Pools, and R&D

Linfeng Chen, Changzhou Institute of Technology theorizes about Consumer Surplus-enhancing Collusions, Patent Pools, and R&D. Abstract: This study reveals two different rationales for consumer surplus-enhancing collusion. The first model considers two competitive firms in the final product market, each with….. To continue reading this legal news please click Read full information...

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Use and abuse of bargaining models in antitrust: AT&T/Time-Warner and FTC v. Qualcomm

[TOTM: The following is the second in a series of posts by TOTM guests and authors on the FTC v. Qualcomm case, currently awaiting decision by Judge Lucy Koh in the Northern District of California. The first post, by Luke Froeb, Michael Doane & Mikhael Shor is here. This post is authored by Douglas H. Ginsburg, Professor of Law, Antonin Scalia Law School at George Mason University; Senior Judge, United States Court of Appeals for the District of Columbia Circuit; and former Assistant Attorney General in charge of the Antitrust Division of the U.S. Department of Justice; and Joshua D. Wright, University Professor, Antonin Scalia Law School at George Mason University; Executive Director, Global Antitrust Institute; former U.S. Federal Trade Commissioner from 2013-15; and one of the founding bloggers at Truth on the Market.] [Ginsburg & Wright: Professor Wright is recused from participation in the FTC litigation against Qualcomm, but has provided counseling advice to….. To continue reading this legal news please click Read full information...

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