Distribution, Competition, and Antitrust / IP Law

Antitrust Analysis of Joint Ventures

I’ve begun a new blog series on the antitrust analysis of joint ventures on the Orrick AntitrustWatch blog.  Here’s a link to the first article.  As I wrote there:

Joint ventures (“JVs”) can require navigation of a potential minefield of antitrust issues, which we’ll explore in a series of six blog posts beginning with this introductory post. Not all of the law in this area is entirely settled, and there remain ongoing debates about some aspects of the antitrust treatment of JVs. Indeed, arriving at a coherent and unified view of JV law is like putting together a jigsaw puzzle with missing and damaged pieces.

The series is intended to explore how and why antitrust law applies to JVs, and how to structure JVs to avoid issues.  Keep in mind that the term “JV” is flexible and reaches many types of activity that you might not otherwise think of as a JV. The term of course reaches traditional formal business collaborations between or among companies to produce or buy products or services. But the antitrust analysis of joint ventures also reaches, or can reach, trade associations, standard-setting bodies, patent pools, agreements to jointly market products, and even professional and amateur sports leagues.

Tenth Circuit Rules That Invocation of IP Rights Is Presumptively Valid Defense to Antitrust Refusal to Deal Claims

Embed from Getty Images In SOLIDFX, LLC v. Jeppesen Sanderson, Inc., Case Nos. 15-1079 and 15-1097 (opinion available here), the Tenth Circuit aligned itself with the First and Federal Circuits to hold that the invocation of intellectual … [Continue reading]

Getty Images Complains About Google’s Image “Scraping”

Getty Images and a group of professional photographers sent a letter this week to the Senate Judiciary’s antitrust subcommittee complaining about Google’s image “scraping.”  In a nutshell, Getty alleges that high-resolution images in Google’s image … [Continue reading]

Court’s Denial of Summary Judgment on Price Discrimination Claims Reminds Suppliers to Properly Structure Discount Programs

In a recent decision, the Northern District of California denied Chrysler’s motion for summary judgment to defeat a Robinson-Patman Act price discrimination claim.  Mathew Enterprise, Inc. v. Chrysler Group LLC, 2016 U.S. Dist. LEXIS 108693 (N.D. … [Continue reading]

You Can’t Use the Sherman Act to Wrangle an Invitation to a Political Debate

So held the District Court for the District of Columbia in Johnson v. Commission on Presidential Debates, No. 15-1580 (RMC) (D.D.C. August 5, 2016).  There, the Libertarian and Green Parties challenged decisions of the Commission on Presidential … [Continue reading]

If You Discount It, And They Don’t Come . . . .

Researchers at my alma mater (including Steven Levitt of Freakonomics fame) recently reported the results of an interesting study: discounts offered on virtual goods (i.e., in-app purchases in connection with online video games) did not stimulate … [Continue reading]

Supreme Court lets Fourth Circuit’s Articulation of Standard for Pleading a Sherman Act Conspiracy Stand – for Now

On Monday, the U.S. Supreme Court refused to review the Fourth Circuit’s decision in SD3, LLC v. Black & Decker (U.S.) Inc., et al., 801 F.3d 412 (4th Cir. 2015), allowing the decision – and, arguably, a circuit split on the pleading standard for … [Continue reading]

Third Circuit Rejects Single-Product Bundling Claim – But Holds Its Fire on What Test to Apply

In Eisai, Inc. v. Sanofi Aventis U.S., LLC, No. 14-2017 (3d Cir. May 4, 2016), the Third Circuit addressed a mix of allegedly exclusionary conduct, including the defendant’s discounting of its anti-coagulant drug Lovenox, and held that the … [Continue reading]

Speaking About Discounted Pricing Clauses

I'm happy to be speaking on "Discounted Pricing Clauses: Drafting Enforceable and Compliant Provisions After Collins."  We'll be addressing potential pitfalls in drafting discounted pricing clauses in commercial contracts, particularly in light of … [Continue reading]

Sixth Circuit Opens a Pandora’s Box of Joint Venture Challenges

Say you’re a group of hospitals that get together under a Joint Operating Agreement.   You agree to form an integrated health system. You agree to total your net incomes into a single “network net income” that is allocated to the parties based on … [Continue reading]

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