Wednesday, March 30, 2005
Yesterday's Supreme Court's decision that allowed whistleblowers a claim under Title IX made me think about the status of antitrust whistleblowing. Currently, antitrust law does not give a discharged employee a claim for whistleblowing, denying the claim on standing grounds (under the test in Associated General Contractors). To the extent that whistleblowing is protected at all, it is through leniency programs in sentencing and punishment for co-conspirators that inform on a cartel. For those interested in an economic analysis of whistleblowing (and references to the legal and economic literature), this recent working paper provides some fun reading.
From March 21 World Generic Reports:
"Schering-Plough has reported the Federal Court of Appeals for the 11th Circuit, based in Atlanta, Georgia, has ruled that the company did not violate antitrust laws in its patent litigation settlements regarding its controlled-release potassium chloride supplement, K-Dur 20. In reaching the decision, the Appeals Court set aside a December 2003 decision by the Federal Trade Commission, which had reversed a June 2002 initial decision of an FTC administrative law judge.
"The case dated back to 1995, when Upsher-Smith Laboratories and ESI Lederle filed separate ANDAs for generic versions of K-Dur. Schering-Plough brought separate actions against the two firms, alleging patent infringement, but in each case, Schering-Plough settled before the lawsuits reached trial. Under the settlements, licences were agreed, enabling Upsher-Smith to market its version in September 2001, and ESI Lederle's in January 2004. The settlements led to the FTC's Bureau of Competition filing a complaint in March 2001, alleging that the litigation settlements were anti-competitive and violated the Federal Trade Commission Act. It further argued that the agreements acted to delay the entry of generic competition.
"The June 2002 decision had found that Schering-Plough's patent litigation settlements regarding K-Dur had complied with the law, and dismissed all charges filed against the company by the FTC's Bureau of Competition. However, this was overturned in December 2003, in a ruling which has now in turn been reversed. Unsurprisingly, Schering-Plough has always maintained that the patent litigation settlements complied with the law and benefited consumers by allowing generic products to enter the market two to five years before the expiration of the relevant patent."
Monday, March 28, 2005
Thursday, March 24, 2005
Professor Andrew Chin of The University of North Carolina at Chapel Hill has published some interesting pieces on the Microsoft antitrust litigation, with specific discussion of the relationship between antitrust and intellectual property law. The pieces are available from his UNC website.
Tuesday, March 15, 2005
Senator Jim Bunning, a Kentucky Republican and baseball Hall of Famer, suggested that if Major League Baseball ignores the problems of steroid use among players, Congress may re-examine the antitrust exemption for major leage baseball. Senator Bunning expressed deep concern that MLB was brushing off the Congressional investigation into the use of steroids by athletes and called the penalty system enacted by the league "the most pathetic thing I have ever seen compared to the other major league sports."
EU Competition Commission ruled that it lacked jurisdiction to probe into a proposed deal among Microsoft, Time-Warner, and Thomson having to do with the valuable patents to anti-piracy and security software. The Commission has no authority to investigate mergers among three co-equal partners. Link here.
Thursday, March 10, 2005
Eriq Gardner reports in the March 2005 issue of IP Law and Business on an antitrust suit brought against Monsanto by Syngenta, challenging Monsanto's licensing practices with respect to its patent on genetically modified seeds. This case follows on the heels of an antitrust suit brought by farmers also challenging Monsanto's practices.
Syngenta charges that Monsanto structured its contracts with some 300 seed companies so that if they substitute a competitor's genetic traits for any of Monsanto's, the seed companies must forfeit the bulk discounts they receive when they buy additional Monsanto traits.
Syngenta's general counsel, Edward Resler, calls Monsanto "a monopolist. " Monsanto's discount program has multiple purposes, he says. It ensures that seed companies promote seeds with Monsanto traits. And he alleges that the program is a convenient way to get seed companies to license Monsanto's entire product portfolio. How? Monsanto also offers seed companies incentive packages for "stacked traits." A seed company that sells a certain percentage of seed with a Monsanto GM trait, like corn engineered to resist the corn borer insect, for example, also gets a discount off another Monsanto GM trait, like glyphosate-tolerance.
Wednesday, March 9, 2005
Tuesday, March 8, 2005
Professor William Page has published an empirical study of class certification in the private antitrust actions against Microsoft. His study looks at the effects of the indirect purchaser rule on the decisions of courts to certify class actions in the Microsoft litigation. He writes:
"Although the Illinois Brick rule denies indirect purchasers the right to sue under the federal antitrust laws, many states have authorized these suits under state antitrust or consumer protection law. Before the Microsoft cases, however, courts in the Illinois Brick repealer states had refused, more often than not, to certify indirect purchaser suits as class actions on the grounds that issues specific to the individual plaintiffs, particularly the issue of impact, predominated over the issues common to the class. In these courts' skeptical view, the complexities of proving whether and by how much the direct purchasers had passed on the overcharge to the plaintiffs would likely overwhelm any common issues, like questions of liability, and thus make the cases unsuitable for trial as class actions. The courts in the Microsoft indirect purchaser cases, however, have certified them as class actions much more frequently. "
Professor Gal of The University of Haifa Faculty of Law makes an interesting case for identifying the factors leading to successful competition policy in developing countries in a recently posted SSRN article. The paper is a useful contribution to our understanding of competition law in developing economies.
In a recently posted working paper on SSRN, Professor Jim Rossi of Florida State University Law School presents an argumetn based on theories of political bargaining and political failure to explain the relationship between the dormant commerce clause and state action immunity in antitrust law. Professor Rossi concludes that these two doctrines share "the common purpose of deterring the adoption of regulations with adverse spillover effects for those who do not participate in the relevant lawmaking process."
Monday, March 7, 2005