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4.03.26
Court Denies Plaintiffs Leave to Amend in Replacement Tires Antitrust MDL, Dismissing Alleged Price-Fixing Cases with Prejudice
A Wilson Sonsini team recently obtained a full dismissal with prejudice on behalf of Continental Aktiengesellschaft and Continental Tire the Americas, LLC of alleged price-fixing claims on replacement tires.
Alerts
7.05.23
Jury Finds Gilead and Teva Did Not Engage in an Anticompetitive Pay-for-Delay Scheme for HIV Drugs
On June 30, 2023, a jury in the Northern District of California found Gilead and Teva not liable in a trial accusing the companies of engaging in an illegal reverse payment to delay generic versions of two HIV drugs, Truvada (emtricitabine/tenofovir) and Atripla (efavirenz-/-emtricitabine-/-tenofovir). Following a five-week trial and two days of deliberations, the jury found that the plaintiffs failed to show that: 1) Gilead had market power within a market that included Truvada and/or Atripla, and 2) Gilead made a reverse payment to Teva to delay the entry of generic competition.1 This case marks the third jury verdict in favor of defendants in reverse-payment cases since the 2013 FTC v. Actavis decision—there have been no verdicts for plaintiffs.2
Alerts
12.14.22
DOJ Antitrust, OIG Announce Collaboration to Protect Healthcare Markets
On December 9, 2022, the Department of Justice Antitrust Division (DOJ) and the Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS) announced they are joining forces to protect healthcare markets.1 The two agencies signed a memorandum of understanding (MOU) detailing how they will work together to protect healthcare consumers and workers from collusion, ensure compliance with applicable laws, and promote competition in healthcare markets. This effort signals the agencies' increased focus on policing violations in healthcare markets.
Alerts
4.18.22
First DOJ Criminal Wage-Fixing and No-Poach Trials End in Acquittals
In 2016, the U.S. Department of Justice Antitrust Division (DOJ) announced that it would criminally prosecute no-poach and wage-fixing agreements for the first time. Indeed, the DOJ has backed this up by bringing a number of criminal prosecutions of such agreements since late 2020.1 Late last week, the DOJ lost the first two of its cases to reach a verdict (with the other cases still pending). In both cases, the juries separately acquitted all of the defendants for the alleged conduct around hiring. While the DOJ has reaffirmed its commitment to investigate and prosecute such conduct going forward, these two losses must cause the DOJ to reconsider whether or at least how it prosecutes such cases going forward.
Alerts
7.08.21
Federal Trade Commission Limits Broadcom’s Exclusivity Agreements, Volume Discounting
On July 2, 2021, Broadcom agreed to settle the Federal Trade Commission's (FTC's) charges that Broadcom illegally monopolized markets for semiconductor chips through exclusive-dealing and volume-discounting practices. The consent agreement follows Broadcom's October 2020 agreement with the European Commission resolving similar antitrust allegations. Under the FTC's consent order, Broadcom must stop requiring customers to buy more than 50 percent of their chip requirements from Broadcom, and must stop conditioning discounts or rebates on a customer buying more than 50 percent of its chip requirements from Broadcom.
Alerts
5.05.21
The Anthem-Cigna Merger Litigation Saga: Key Insights for Future Deals
On May 3, 2021, Anthem, Inc. secured its win over Cigna Corp.'s pursuit of a $1.85 billion breakup fee following the collapse of their proposed $54 billion merger. In a brief order, Justice Karen L. Valihura, writing for the full five-member Delaware Supreme Court, rejected Cigna's appeal and affirmed "on the basis of and for the reasons assigned by" Vice Chancellor J. Travis Laster in his sprawling 306-page decision issued in August 2020.1 The deal thus ultimately ends in a draw, with neither side receiving any compensation or damages after years of litigation. However, the decision now clears the way for the pending shareholder suits against Anthem and Cigna to proceed.
Bylined Articles
10.23.20
Risk Allocation in Merger Agreements in an Era of Increased Enforcement
Our antitrust practice is pleased to present a new report addressing the prevalence of risk-shifting provisions in merger agreements. As antitrust agencies continue to galvanize enforcement efforts, such provisions have emerged as a critical counterbalance to increased regulatory scrutiny. The firm, working with NERA Economic Consulting, examined over 700 merger agreements from 2004-2019 to construct an empirical analysis of the prevalence of efforts clauses, divestiture and litigation requirements, break-up and reverse break-up fees, and termination date provisions. This analysis serves as a benchmark that can help inform optimal transaction-specific negotiating strategies and protect against aggressive counterparties.