Antitrust
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Antitrust

May 2013

It is only May and it has already been a big year for the antitrust practice area. In January, the Federal Trade Commission dropped its investigation into allegations that Google was rigging search results to promote its own companies. It applied a little known rule that will likely change U.S. monopolization enforcement going forward. The Supreme Court is reviewing various generic drug cases with implications for antitrust law. Our panel of experts in Northern and Southern California discuss what these changes may mean, as well as the future of class action in antitrust cases. They are Maxwell M. Blecher of Blecher Collins Pepperman & Joye; Eric B. Fastiff of Lieff Cabraser Heimann & Bernstein; Marie L. Fiala of Sidley Austin; Gary L. Reback of Carr & Ferrell. The roundtable was moderated by California Lawyer and reported by Krishanna DeRita of Barkley Court Reporters.

Moderator: In your opinion, what is the state of the antitrust practice today?

Reback: A year ago people were generally more optimistic than they are today about the robustness of the antitrust practice and whether antitrust provides a constructive vehicle for change in our economy and society. We are reverting somewhat to the pre-Obama pessimism that antitrust was something that we did in the '50s and it's not what we do now.

Fiala: Pessimism or optimism depends on which side of the courtroom you're sitting. From the defense perspective, I've witnessed a number of cycles where the death of antitrust litigation has been predicted and then proven to be premature. While the practice is more robust now than it was five years ago, there's no question that the federal courts have made a real effort to impose higher barriers before large-scale class action antitrust litigation can be pursued. That is offset to some extent, however, by the increased globalization not just of business, but antitrust competition enforcement. When something happens in the EU or China, it has repercussions for clients here, including at times U.S. enforcement activity and often private litigation. For instance, the current Online Travel/Hotel multidistrict litigation began with an investigation by the U.K.'s Office of Fair Trading. The globalization of the competition enforcement world has increased work for lawyers representing U.S. clients. (In re: On-Line Travel Co. (OTC)/Hotel Booking Antitrust Litig., 12-MD-2405-B (N.D. Tex.).)

Fastiff: My position falls somewhere between you two. There is the international enforcement aspect - Microsoft having recently been heavily punished as a recidivist by the EU. In Britain, the Office of Fair Trading is removing barriers to group actions and contingent representation. There's also the development of antitrust authority in Asian and South American countries, as well as in South Africa, and a strengthening of enforcement in Europe. As U.S. companies are increasingly global, they are subject to enforcement overseas, which affects enforcement in the U.S. You hear repeatedly from the Department of Justice (DOJ) about their concerted efforts to pursue global cartels and their work with overseas counterparts.

Then recently, for example, there was a fight in the LCD litigation with the government subpoenaing documents in this district that went to the Supreme Court, with cert denied. (In re Grand Jury Subpoenas, 627 F.3d 1143 (9th Cir. 2010).) I was one of the recipients of a grand jury subpoena seeking from Toshiba's documents produced to the civil plaintiffs and also in Toshiba's lawyers' possession. The issue was whether the government could use the civil litigation to gain access to overseas documents. So there is a growing international component that belies the death of antitrust.

Under President Obama you see mergers enforcement, perhaps not as robust as people would like, but it's not completely dormant. There's also movement in the Courts of Appeal pushing back against the Supreme Court. We already are seeing that push back against Comcast. We continue to see the push back against Twombly (Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)), for example in the Seventh Circuit's Text Messaging case. (In re Text Messaging Antitrust Litig., 630 F.3d 622 (7th Cir. 2010), cert denied sub nom. Cellco P'ship v. Morris, 131 S. Ct. 2165 (U.S. 2011).) Antitrust remains one of the most important aspects of the law, particularly in this district, frankly.

Blecher: I don't think antitrust is dead, but it doesn't have a whole lot of vitality. It will be limited to cases in which the plaintiff, at least in private cases, is able to demonstrate an actual adverse effect on competition. In those cases, antitrust will survive and flourish, but it's not what it used to be. In the old days, you could infer conspiracy when more than one person raised his umbrella in the rain, and that's just not the way it is anymore.

The overall decline is attributable to two things: A great surge of class actions, in which the Supreme Court found in many cases newly created claims largely for the benefit of the lawyers, and this has resulted in a lot of bad decisions. Plaintiffs lost 14 cases in the Court. They are throwing out the baby with the bathwater in order to kill off these class action claims, and we can see that in Dukes (Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011)) and Comcast and in the Third Circuit (In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008)). The class action does not have a significant future in antitrust and it's more depressing because Hydrogen Peroxide, while not typical, was essentially a price-fixing case, and even there you couldn't certify. Certification has become a mini-trial on the merits and that certainly can't portend good things for the long term.

The second reason is because it has turned into a consumer protection statute. No one cares about competition anymore, and as long as you can demonstrate some short-term benefit to consumers, the long-term effect on competition has been subordinated. Concepcion and Comcast taken together have to tell us that it will be virtually impossible to get certification into any case in which the defendant can frame a serious argument, and the message that the Court is radiating down to the lower courts is, "It's okay with us for you to kill off these class action cases." (AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011)); Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013).)

Moderator: Given Dukes, Concepcion, and the standards for certification, what is the future of the antitrust class action?

Fiala: There's no question that the Court in Dukes, Comcast, and the Concepcion cases has raised the bar for pleading and proceeding with antitrust claims on a class action basis. The standard for ultimate proof hasn't been changed so much as the rigorous assessment has been advanced to an earlier stage of the case. The federal court is now very specifically directed to act as the gatekeeper in screening out unmeritorious claims, and the Court has been very specific about the problem of opening up claims that are-

Blecher: Isn't that quite a revolution from the early days? We didn't have to get to the merits to decide certification. We've come full circle, and when you get to the merits of the certification stage, the plaintiff is invariably going to lose.

Fiala: In Twombly, the Court explicitly acknowledged the enormous burden of antitrust discovery and the in terrorem effect driving settlements once a class is certified. The ultimate day of reckoning when the merits of the claim are tested, which usually requires a trial, are seldom susceptible to summary judgment because of disputed fact issues. Certainly under Comcast and Dukes, the Court has to look more closely at the merits as they relate to the class certification issues. The Court can't defer the determination by saying, "That's merits, we will think about it later." That gatekeeper function is intended to remedy abuses in the class action litigation process where many very large settlements were reached because the parties simply couldn't afford the risk of trial on a class-wide claim that was certified even if the Rule 23 requirements were not strictly met and the underlying merits were not solid.

Fastiff: But defendants will no longer be able to bifurcate discovery. Now it will all be early and out there and the depositions of CEOs will be taken in the case prior to certification. The plaintiffs in their class cert motions will begin their introductions with a list of all the emails going back and forth or the minutes of the conspiratorial meetings. The defendants and the defense bar perhaps should have been a little more careful about their strategy because delaying the day of reckoning may not be in their best interest after all. If you read Comcast, class cert experts will not put in reports that say, "This is how I think I'll be able to calculate damages." Instead, there may be a combined merits-class certification report where the expert will say, "This is how I calculate damages and the damages are X hundreds of millions," and that will dissuade plaintiffs from settling early because they've spent all the money. They've invested the time in the case. They'll survive a Daubert challenge and they will be ready to try the case for treble damages.

Fiala: I agree that expert analysis on the class certification and the merits issues will be more integrated than previously where expert testimony at the class certification stage focused rather superficially on the Rule 23 requirements. The courts' certification analysis will go much more to the merits now, and expert work will be more frontloaded. As to whether wide open discovery before certification will be allowed when the Court has said specifically that's an outcome it wants to safeguard against, I don't believe the courts will be sympathetic to those requests.

Blecher: Assuming either of these decisions will be business as usual, they will have a significant deterrent effect. Comcast must have invested in a huge damage study in discovery in that case, a minimum of several million dollars. The message is, "You guys better take a hard look before you bring it and make the investment because class certification is not likely in the cards any more."

Fastiff: And the flipside is that the plaintiffs will be paying for one expert report instead of two - a combined class cert and merits report. The expense will be in the discovery, and if they win or lose on class certification at the end of discovery, they are ready for trial. If they lose certification, they can still try the case on behalf of their individual clients.

Blecher: In cases like Twombly and Trinko (Verizon Comms, Inc. v. Law Offices of Curtis V. Trinko, 540 U.S. 398 (2004)) you do have to scratch your head and say, "This is something they invented without any likely significant benefit for the class," and the Court is rebelling against it. If you add Twombly and Trinko to the list of unsuccessful class actions, they did it on the merits there and it makes bad antitrust law. You took a case like Aspen and the Supreme Court effectively emasculated it. Why? Because some guy thought, "Gee, I can make $42 million if I win this class action," these companies are not even competing with each other. So the court system is saying, "We are not going permit that anymore." (Aspen Skiing Co. v Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).)

Reback: There is a difference though. Trinko is a merits antitrust holding that is in many respects confusing and difficult. It's led to a lot of confusion in the lower courts. These latest cases, particularly Comcast, really do focus on the class action aspect of antitrust, and I agree with you a bit more than with Eric [Fastiff] in terms of the general effect. But taking a broader view, and if the suggestion is that class actions aren't really in the public interest in terms of antitrust policy, you would then ask whether there is some government entity that will take up the slack? Who will make certain that these global cartels or domestic cartels are prosecuted? There have been changes in damage recoveries such that the government can get more in fines than ever before, and it certainly has had some significant successes, particularly in the previously mentioned LCD case, but there's still an underlying worry that if you cut out the entire class action aspect of the practice, or at least impose significant impediments, we will not get the robust antitrust enforcement against cartels that we really need. It's not as though cartels are going away.

Moderator: How has Twombly impacted antitrust actions brought in state courts?

Fiala: Despite the fact that the state courts aren't bound to follow Twombly, we are clearly seeing an impact. Roughly ten jurisdictions have expressly applied Twombly, some in antitrust claims and others in similar contexts such as consumer protection claims. At least two appellate decisions in California, Clayworth and Zumbowicz, have applied the Twombly federal standard on the question of whether showing parallel conduct is enough to create an inference of collusion. (Clayworth v. Pfizer, Inc., 2012 WL 3596452 (Cal. App. 1 Dist.) and (Zumbowicz v. Hospital Ass'n of Southern California, 2010 WL 4614697 (Cal. App. 2 Dist.).)

Four or five states have said, "This is really a procedural issue and any changes ought to be by legislation." Unlike the federal courts, a number of states have more rigorous fact-based pleading standards, so Twombly actually brings the federal jurisprudence more in line with the state practice. Defendant lawyers will continue to argue Twombly in state court antitrust cases every time, and why wouldn't they? A number of states have not spoken, so it's too early to say whether some oases will be left where Twombly is not the approach the courts use, but so far the momentum is in that direction.

Fastiff: The Courts of Appeal are split on whether Twombly applies to answers to complaints and whether there's a good faith basis for a lot of the denials and affirmative defenses. In California state court, we have a more robust system where you can demurrer to an answer under Code of Civil Procedure section 430.40(b) and related sections, and I would like to see that become more prevalent in federal court as well. I'm tired of defendants moving to dismiss when they've pled guilty or are the amnesty applicant, under indictment, or having plea negotiations.

Blecher: Except for a handful of states that seem to have adopted Twombly, I don't think it's made an enormous impact in the state system. Frankly, it's dissipating even at the federal court level, and eventually the Court will take a case, treat it where they made a decision that nobody followed, and eventually make a decision not to overrule it necessarily, but to explain it and restrict it as the Courts of Appeal are now doing.

If you look at the two recent Second Circuit decisions, Starr v. Sony, the Anderson News case, they properly explain Twombly to be a unique fact situation that warranted the kind of analysis they did, but in normal commercial cases it's not going to fly. Judge Janice Brown wrote a decision excoriating in the Court of Appeals of District of Columbia, and Judge Posner in the Seventh Circuit dumped on it in the text messaging class action case. So people of all ilk are weighing in. If you look at the Second Circuit, which is a leader in commercial litigation, and at Posner and the District of Columbia, I'm seeing Twombly could be markedly restricted. (Starr v. Sony BMG Music Entmt., 592 F.3d 314 (2d Cir. 2010); (Anderson News, L.L.C. v. American Media, Inc., 680 F. 3d 162 (2d Cir. 2012).)

Moderator: What is the significance of the developments in the Google antitrust investigations over the past year for tech companies and consumers in California?

Reback: In January, the Federal Trade Commission (FTC) shut down its investigation of Google's alleged search bias - the company's manipulation of search results to favor its own properties such as comparison shopping and travel. The FTC took no action but big, ongoing investigations continue in the European Union and by a number of the state attorneys general, headed by Texas. The FTC inaction produced a firestorm of criticism in the popular and business press, including recriminations among commissioners and charges of political influence. Most assuredly, the FTC decision dramatically set back monopolization enforcement. But amid all the finger pointing, there is a serious legal issue that has long-term ramifications, particularly for the industries in California. What the FTC refused to do was apply the Microsoft decision's legal standard to Google's behavior, and instead they adopted a rule first suggested in a relatively obscure 2010 Ninth Circuit case called Allied Orthopedics v. Tyco. (U.S. v. Microsoft Corp., 84 F.Supp.2d 9 (D.D.C. 1999) (findings of fact); 87 F.Supp.2d 30 (D.D.C. 2000) (conclusions of law); 97 F.Supp.2d 59 (D.D.C. 2000) (remedial order); direct appeal denied, 530 U.S. 1301 (2000); aff'd in part and reversed in part, 253 F.3d 34 (D.C.Cir. 2001) (per curiam)) (Allied Orthopedic Appliances Inc. v. Tyco Healthcare Group LP, 592 F.3d 991 (9th Cir. 2010).).

In the Microsoft case, the decision held that courts should apply a normal rule of reason test to changes a monopolist makes in its product and ask whether the benefits to consumers from these changes outweigh the damage to competition. For example, assume that a monopolist just changes external plugs and sockets, meaning that complementary products of competitors will no longer work with the monopoly platform. Well, under Microsoft, that would be a violation of the rule of reason. It would be an antitrust violation. But the Ninth Circuit's Tyco decision said that all product improvements made by monopolists are off limits to antitrust scrutiny. So if a monopolist does something that improves its product even marginally, but the changes destroy competition in the market, that's still okay under the Tyco decision.

Now, the Tyco decision was widely criticized when it was first announced in 2010, and one of the best articles criticizing the decision was written by a group of California lawyers published in the Loyola Consumer Law Review ("Predatory Innovation: An Analysis of Allied Orthopedic Group v. Tyco in the Context of Section 2 Jurisprudence," 23 Loy.Consumer L. Review 1 (2010).). Notwithstanding the criticism and comments, the FTC adopted the Tyco standard, and so for information technology, medical devices, and pharmaceuticals - many of the things we really care about in California - it's going to be a lot harder, particularly in the Ninth Circuit, to bring monopolization cases, unless Tyco is ultimately rejected. The Tyco approach will damage Silicon Valley in particular. It's going to affect investment and innovation and ultimately consumers will, in fact, pay the penalty because many of their choices will simply be eliminated or won't have existed in the first place.

Fastiff: It's a concern that a government agency charged with enforcing the competition laws may in this case have fallen down on its responsibility. It's also of concern in the pharmaceutical area where patent holders and drug companies reformulate their drugs, or change the dosage or packaging, and are able to extend the life of their patent. There's a continual manipulation of the laws and regulations by patent holders and monopolists to extend that monopoly to the detriment of consumers and their competitors.

Fiala: Gary [Reback], to what do you attribute what you call the Commission's "shocking failure" to pursue the search bias case?

Reback: The FTC took advantage of this Ninth Circuit decision, but the issue is why? That case really didn't have any economic testimony in contrast to the Microsoft decision, which was a unanimous en banc decision of the DC Circuit. Microsoft was clearly intended to be an agreement among liberals and conservatives, plaintiffs and defendants - these were to be the rules for the technology sector and they worked pretty well. The Tyco case was a medical device case and the judge went out of his way to say that he wasn't going to apply the Microsoft standard.

Some would say that government enforcement agencies don't want to take the big case to extend the law, particularly in an area where political conservatives have been critical of the benefits of antitrust. But when you ask hard questions, and particularly about the ramifications for other FTC monopolization cases and for the DOJ in the technology sector, some would suggest that we will have to wait for the answers until after the Obama administration. The people at Google were very close to the administration before the time that there even was one.

Probably all those things contribute in some measure. But when there is damage to competition, and particularly in Silicon Valley, real people lose their jobs, not because they failed to perform, but because somebody else broke the law, and the victims might have kids who want to go to college and they have mortgages and so forth. The vehicle for protecting consumers in the Microsoft case in particular, which is the closest thing we have to a landmark decision in the monopolization area in the last 20 years, was protecting the innovative process of competitors. Without competitors, you can't protect consumers.

Blecher: So can we get the Supreme Court to take away the shibboleth that competition is not the same as competitors?

Reback: It's a fair question, but any time I have the opportunity to argue before a court, I have to go out of my way to say, "We all understand the law protects competition and not competitors." The problem is, as in the Google situation, the conduct wiped out an entire market. So how do you distinguish between competitors and competition and that situation?

Blecher: We have to ask Justice Scalia sometime to explain how you can have competition without competitors.

Reback: Your earlier comment on Trinko was telling. It was a set of facts that in effect cried out for a bad result, and the Supreme Court didn't disappoint us. They gave us a bad result in the decision in the case. So the combination of Trinko and the unilateral guidelines that were adopted by the DOJ, but rejected by the FTC, all of those things have put the monopolization side of antitrust under tremendous duress. It's difficult to see how we get to where we need to be unless Europe helps us.

Fastiff: What's your response to the government's actions in the H&R Block case and the AB InBev-Modelo merger? Are those isolated instances? (See U.S. v. H&R Block, Inc., No. 11-CV, 948, (D.D.C. filed May 23, 2011); U.S. v. Anheuser-Busch InBev SA/NV, No. 13-127 (D.D.C. filed Jan. 31, 2013).)

Reback: No, they are instances of targets who have less political clout. Honestly, when I'm speaking in Washington or to in-house lawyers, I tell them, "Don't spend money on an antitrust lawyer. Spend money on a lobbyist." And it's a terrible thing for someone like me, who's been an antitrust lawyer since 1974, to say.

Fiala: What's your theory on why, in the absence of action by the FTC, we haven't seen any significant private litigation if, as you say, competitors are being hurt and are losing jobs? Certainly there's a lot of activity in the EU. The European Commission investigated the search dominance issue, which has just been settled, for more than three years. And this is an area with plaintiffs who have the resources to bring individual claims and so aren't limited by the class action obstacles.

Reback: That's part of it, but there is the corollary part of the case involving search ads, and Google of course has a larger share of the search ads market. More generally, people in Washington have asked me this question many times, and the answer goes to the heart of Silicon Valley - entrepreneurs there do not want to spend the next ten years on a case against Google. They want to make a product and get their next venture funded, and if there's not a pathway in search technology, they'll go work on to diet pills or something else. That's the mentality, and we lawyers forget that.

Fiala: There was ample private litigation against Microsoft, and Silicon Valley didn't sit on the sidelines. Why not against Google?

Reback: Microsoft only got sued by the private sector - and there were plenty of suits - after the government actions, and frankly the most prominent lawsuits came from outside the country. Microsoft was sued in Europe and fined $3 billion euros, and sued all over the world by trade associations. None of that will happen though in an area like this unless the government takes the lead.

Blecher: The law on product improvement or incompatibility is a mixed bag. Microsoft provides a balancing test, but other cases adopted the view of the Ninth Circuit about product improvement, and in the Allied case there was no dispute that the product was not only an improvement, but it actually facilitated generic competition and lower pricing. So there's a very bad factual case and those are the kinds of cases that make bad antitrust law, but I don't think we've seen the last word on this subject whether you do a balancing test or whether once you decide it's a product improvement.

Moderator: What are your thoughts about the generic drug cases facing the U.S. Supreme Court?

Fastiff: In the generic drug cases, the FTC and the DOJ have been aggressive and acting on behalf of consumers in this area under the Obama administration. The cases have been up for review by the Supreme Court for the past several years, and they finally took one this year. They took the case to reverse it or at least find some middle ground and will reject Tamoxifen as the standard (In re Tamoxifen Citrate Antitrust Litig., 429 F.3d 370 (2d Cir. 2005)). A settlement on its face will require some scrutiny under the rule of reason, at the very least, and that some of these cases, for example, the California Cipro case, should proceed to trial. The California Supreme Court has stayed its review of the Cipro case pending the outcome at the Supreme Court in Watson. (In re Cipro Cases I and II, Supreme Court of the State of California, No. S198616), FTC v. Watson Pharm. Inc., 677 F.3d 1298 (11th Cir.), cert granted 133 S. Ct. 787 (2012).)

Fiala: Justice Scalia expressed skepticism during oral argument that the reverse payments could be deemed presumptively anticompetitive. The quick-look type of analysis applied by the Third Circuit begs the question of whether the patent is valid or invalid because under that test the FTC doesn't have to show patent invalidity in order to find this particular type of arrangement to be unlawful. The Third Circuit's test in effect makes the patent itself presumptively invalid. That can't be right.

Fastiff: Those are the K-Dur case, which is also pending review by the Supreme Court (In re K-Dur Antitrust Litig., 686 F.3d 197 (3d Cir. 2012), certiorari pending as No. 12-25)). The Court will likely find a position between Tamoxifen and K-Dur, which will require more judicial analysis of the strength of the patent, but it's not going to find these agreements presumptively legal. It's possible that the Federal Circuit will now be hearing all these cases, and there's been a battle among the circuit courts over which reviews them.

Reback: If you were trying to prognosticate from the oral argument, that's probably what you would guess. I'm just grateful the Supreme Court took the case. We thought California would have to operate as its own country, make a decision, and maybe the rest of the country would follow. Hopefully we'll have a national policy on some of this stuff, which would be good, but the Supreme Court tends to take a middle position and then it has to get worked out in the lower courts, which will take a decade for something this complex.

Fiala: The plaintiff challenging the form of the settlement may end up having to engage in a full-fledged battle on the validity of the patent itself. Is that where you foresee the courts ending up?

Fastiff: There will be a step back from plaintiffs having to relitigate the validity of the patent. It may be easier for the courts to take a quick look at the invalidity of the patent and some of the facts from the underlying patent litigation and say, "Clearly this was a weak patent," and therefore that settlement agreement won't stand or it's subject to attack. In a case where the patent invalidity was less clear, there the courts will have a tougher time deciding what to do.

Fiala: But the underlying patent invalidity claim may not have been litigated at all before the settlement was reached so there would be no basis for saying, "This is a weak patent" when assessing the settlement. It's quite a challenge to think about patent validity being litigated in a context that involves different parties since the generic manufacturer is no longer a party in the case that contests the settlement.

Fastiff: Right. Hatch-Waxman causes some of these and it's a long process to go through. Whether the evidence continues to exist is a question that's going to be case by case.

Reback: Although I started off on a pessimistic note, here is an antitrust matter that affects just about everyone in the world. But because of the complexity, I don't think lay people understand what's at stake.

Fiala: Judge Posner has not always been a fan of patent protection, but here he draws a distinction based on the very long lifecycle, investment in R&D, testing, and regulatory processes needed to bring a pharmaceutical product to market, and how easy it is for a generic manufacturer who doesn't make that investment to copy the drug. He's concerned about chilling the processes by which new drugs and medical technologies are developed. There are already complaints about the lack of innovation around new drugs targeted at conditions affecting limited numbers of patients.

Fastiff: There are pharmaceutical companies that receive funding from the government where the NIH does the research and makes the results available to a company, which patents and sells the product. Companies that don't actually take as much of a risk as those privately researching drugs are in the minority, but it's a concern.

Blecher: This whole subject extends from an overextension of Noerr immunity, which frames the settlement "incident" to the litigation when in fact the settlement should not be viewed as incident to the litigation. It should be as the government has suggested - a completely separate inquiry under Masonite (U.S. v. Masonite, Corp., 316 U.S. 265 (1942)) and Ethyl (Ethyl Gasoline Corp. v. U.S., 309 U.S. 436 (1940)). Why isn't the settlement a private contract that's subject to the antitrust laws wholly apart from the Noerr-Pennington doctrine, which protects petitioning? What does the settlement have to do with petitioning? The approach to this is in hopefully reviewing what the term "incidental" means as it extends more protection to the settlement and whether or not the settlement includes an agreement not to compete, in which case it would be stricken down, or whether it has some pro-competitive justifications so that it would be allowed to stand.

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