Bureau of Competition (2008)
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Bureau of Competition
Antitrust Enforcement Activities
Fiscal Year 2003 - February 29, 2008
PROMOTING
COMPETITION
PROTECTING
CONSUMERS
Federal Trade Commission
ABA ANTITRUST SECTION
SPRING MEETING
Summary of Bureau of Competition Activity
Fiscal Year 2004 Through February 29, 2008
Table of Contents
I.
Mergers ........................................................................................................1
A.
Consent Orders .............................................................................................................. 1
Actavis Group................................................................................................................. 1
American Air Liquide, Inc. ........................................................................................... 2
Allergan, Inc. .................................................................................................................. 2
Aspen Technology, Inc. ................................................................................................. 2
Barr Pharmaceutical, Inc.............................................................................................. 2
Buckeye Partners, L.P. .................................................................................................. 2
Boston Scientific Corp ................................................................................................... 3
Cemex, S.A...................................................................................................................... 3
Cephalon, Inc.................................................................................................................. 3
Chevron Texaco Corporation ....................................................................................... 3
Cytec Industries, Inc...................................................................................................... 3
DaVita Inc....................................................................................................................... 3
DSM N.V......................................................................................................................... 4
Enterprise Products Partners L.P. ............................................................................... 4
Enterprise Products Partners L.P. ............................................................................... 4
Fresenius AG .................................................................................................................. 4
Fresenius AG .................................................................................................................. 4
GenCorp Inc. .................................................................................................................. 5
General Dynamics Corporation.................................................................................... 5
General Electric Company............................................................................................ 5
General Electric Company............................................................................................ 5
Genzyme Corporation ................................................................................................... 5
Great Atlantic & Pacific Tea Company (A&P) .......................................................... 6
Hologic, Inc..................................................................................................................... 6
Hospira, Inc. ................................................................................................................... 6
Itron, Inc. ........................................................................................................................ 6
Jarden Corporation ....................................................................................................... 6
Johnson & Johnson........................................................................................................ 6
Johnson & Johnson........................................................................................................ 7
Kinder Morgan, Inc. ...................................................................................................... 7
Kyphon Inc. .................................................................................................................... 7
Linde, AG........................................................................................................................ 7
Mylan .............................................................................................................................. 8
Magellan Midstream Partners, L.P.............................................................................. 8
Novartis AG.................................................................................................................... 8
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B.
C.
D.
E.
F.
G.
H.
II.
Occidental Chemical Corporation................................................................................ 8
Owens Corning............................................................................................................... 8
Penn National Gaming, Inc........................................................................................... 9
Rite Aid Corporation..................................................................................................... 9
Sanofi-Synthélabo .......................................................................................................... 9
Service Corporation International ............................................................................... 9
Schering-Plough Corp ................................................................................................. 10
Teva Pharmaceutical Industries Ltd.......................................................................... 10
The Procter & Gamble Company .............................................................................. 10
The Boeing Company .................................................................................................. 10
Thermo Electron Corporation.................................................................................... 10
Valero L.P..................................................................................................................... 11
Watson Pharmaceuticals, Inc. .................................................................................... 11
Authorizations to Seek Preliminary Injunctions ...................................................... 11
Aloha Petroleum, Ltd .................................................................................................. 11
Arch Coal, Inc. ............................................................................................................. 11
Equitable Resources, Inc. ............................................................................................ 12
Western Refining ......................................................................................................... 12
Whole Foods ................................................................................................................. 12
Commission Opinions/Initial Decisions ..................................................................... 12
Chicago Bridge & Iron Company .............................................................................. 12
Northwestern Healthcare Corporation...................................................................... 13
Court Decisions ............................................................................................................ 14
Arch Coal, Inc. ............................................................................................................. 14
Order Violations........................................................................................................... 14
RHI AG ......................................................................................................................... 14
Other Commission Orders .......................................................................................... 15
Administrative Complaints ......................................................................................... 15
Equitable Resources, Inc. ............................................................................................ 15
Western Refining ......................................................................................................... 15
Whole Foods ................................................................................................................. 15
Other ............................................................................................................................. 16
Horizontal Merger Investigation Data....................................................................... 16
Conference on the Price Effects of Mergers and Concentration in the United
States Petroleum Industry........................................................................................... 16
Horizontal Merger Investigation Data....................................................................... 16
Merger Enforcement Workshop ................................................................................ 16
Hart-Scott-Rodino Antitrust Improvements Act Enforcement ...........17
A.
B.
C.
D.
Court Decisions ............................................................................................................ 17
James D. Dondero ........................................................................................................ 17
Scott R. Sacane ............................................................................................................. 17
William H. Gates, III ................................................................................................... 17
Consent Orders ............................................................................................................ 17
Complaints - Filed........................................................................................................ 17
Blockbuster, Inc. .......................................................................................................... 17
Complaints - Authorized ............................................................................................. 18
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E.
F.
III.
A.
B.
C.
D.
Arch Coal, Inc. ............................................................................................................. 18
Rules and Formal Interpretations.............................................................................. 18
Other ............................................................................................................................. 19
Non-Merger Enforcement ........................................................................20
Commission Opinions/Initial Decisions ..................................................................... 20
Kentucky Household Goods Carriers Association, Inc. ........................................... 20
North Texas Specialty Physicians............................................................................... 20
Rambus, Inc.................................................................................................................. 21
South Carolina State Board of Dentistry................................................................... 22
Union Oil of California................................................................................................ 22
Court Decisions ............................................................................................................ 22
PolyGram Holding, Inc. (The Three Tenors)............................................................ 22
Schering-Plough Corporation..................................................................................... 23
Authorizations to Seek Preliminary/Permanent Injunctions .................................. 24
Alpharma, Inc. and Perrigo Company ...................................................................... 24
Cephalon, Inc................................................................................................................ 24
Warner Chilcott ........................................................................................................... 24
Consent Orders ............................................................................................................ 25
Advocate Health Partners ........................................................................................... 25
Alabama Trucking Association, Inc........................................................................... 25
Austin Board of Realtors............................................................................................. 25
California Pacific Medical Group dba Brown and Toland Medical Group........... 25
Clark County, Washington Attorneys ....................................................................... 26
Colegio de Optometras de Puerto Rico...................................................................... 26
Evanston Northwestern Healthcare Corporation..................................................... 26
Health Care Alliance of Laredo, L.C., ....................................................................... 26
Information and Real Estate Services, LLC.............................................................. 26
Memorial Hermann Health Network Providers ....................................................... 27
MiRealSource, Inc........................................................................................................ 27
Missouri Board of Embalmers and Funeral Directors............................................. 27
Monmouth County Association of Realtors .............................................................. 27
Movers Conference of Mississippi, Inc. ..................................................................... 27
Motor Oil Importers of Puerto Rico .......................................................................... 28
Multiple Listing Service, Inc....................................................................................... 28
Negotiated Data Solutions, LLC................................................................................. 28
New Hampshire Motor Transport Association......................................................... 28
New Century Health Quality Alliance, Inc................................................................ 29
New Millennium Orthopaedics................................................................................... 29
Northern New England Real Estate Network, Inc.................................................... 29
Partners Health Network, Inc..................................................................................... 29
Piedmont Health Alliance, Inc. ................................................................................... 29
Preferred Health Services, Inc.................................................................................... 30
Puerto Rico Association of Endodontists, Corp. ....................................................... 30
Realtors Association of Northeast Wisconsin, Inc. ................................................... 30
San Juan IPA................................................................................................................ 30
Southeastern New Mexico Physicians IPA ................................................................ 30
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E.
F.
IV.
V.
VI.
A.
B.
C.
D.
E.
South Georgia Health Partners, L.L.C. ..................................................................... 31
Surgical Specialists of Yakima.................................................................................... 31
Tenet Healthcare Corporation.................................................................................... 31
Union Oil Company of California .............................................................................. 31
Valassis Communications, Inc. ................................................................................... 31
Virginia Board of Funeral Directors and Embalmers.............................................. 32
White Sands Health Care System, L.L.C. ................................................................. 32
Williamsburg Area Association of Realtors, Inc....................................................... 32
Administrative Complaints ......................................................................................... 32
MiRealSource, Inc........................................................................................................ 32
RealComp II Ltd. ......................................................................................................... 32
Other ............................................................................................................................. 33
Public Documents/Policy Statements/Conferences................................................... 33
Commission Studies/Guidelines.................................................................................. 33
Advisory Opinions ....................................................................................................... 35
Advocacy Filings .......................................................................................................... 36
Workshops/Hearings/Conferences ............................................................................. 43
Intellectual Property and Patent Law........................................................................ 45
Other ............................................................................................................................. 45
International Activities .............................................................................46
Competition Speeches ...............................................................................47
Statistics .....................................................................................................58
Fiscal Year 2008 (October 1, 2007 through February 29, 2008) ............................. 58
Fiscal Year 2007 ........................................................................................................... 59
Fiscal Year 2006 ........................................................................................................... 61
Fiscal Year 2005 ........................................................................................................... 62
Fiscal Year 2004 ........................................................................................................... 63
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ABA ANTITRUST SECTION
SPRING MEETING
Bureau of Competition Activity
Fiscal Year 2004 through February 29, 2008
Fiscal
Year
Total
Enforcement
Actions
Consents
Complaints
Merger
Non
Merger
Merger and
Non Merger
Preliminary
and/or
Permanent
Injunctions
Civil Penalty
Cases
Abandoned or
Fix-it-First
Transactions
2004
26
10
7
2
2
2
3
2005
20
9
4
0
1
2
4
2006
22
9
5
0
1
0
7
2007
33
14
9
5*
3*
1
5
9
4
2
0
1
1
1
2008
(Oct-Feb)
* In FY 2007 the Commission authorized both a PI and an Administrative Complaint in matters 0610140 - Equitable Resources/Dominion, 0610259 Giant Industries/ Western refining and 0710114 Whole Foods/Wild Oats. For reporting purposes, however, these matters are only counted once as
enforcement actions do avoid double counting.
I.
Mergers
A.
Consent Orders
Actavis Group
(Final Order May 22, 2007): The Commission prevented a merger-to-monopoly in the sale of
generic isradipine capsules by challenging the proposed $235 million purchase of Abrika
Pharmaceuticals, Inc., by the Actavis Group, an international generic pharmaceuticals company.
To maintain competition in the market for this important generic drug, used to lower blood
pressure and to treat hypertension, ischemia, and depression, the consent order requires the
divestiture of all rights and assets necessary to produce, market, and sell generic isradipine to
Cobalt Laboratories, Inc.
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American Air Liquide, Inc.
(Final Order June 29, 2004): L’Air Liquide was permitted to acquire Messer Griesheim GmbH, a
leading industrial gas producer. Under terms of the order, Air Liquide is required to divest six
air separation units operated by Messer in California, Texas, Louisiana, and Mississippi within
six months. According to the complaint, the transaction as proposed would substantially lessen
competition in the market for liquid argon, liquid oxygen and liquid nitrogen.
Allergan, Inc.
(Final Order April 21, 2006): The consent order requires that Allergan and Inamed divest the
rights to develop and distribute Reloxin, a potential Botox rival, to settle charges that Allergan’s
$3.2 billion purchase of Inamed would reduce competition and force consumers to pay higher
prices for botulinum toxin type A products. Under the terms of the FTC settlement, the
companies will return the development and distribution rights to Reloxin to Ipsen Ltd., its U.K.based manufacturer.
Aspen Technology, Inc.
(Final Order December 20, 2004) Under terms of a consent order, Aspen agreed to divest
Hypotech’s continuous process and batch process assets and Aspen’s operator training software
and service business to a Commission-approved buyer to settle charges in the complaint and
resolve the administrative proceedings. The Commission issued an administrative complaint on
August 6, 2003 that challenged Aspen’s 2002 acquisition of Hyprotech, Ltd. alleging that the
acquisition eliminated a significant competitor in the provision of process engineering simulation
software for industry. According to the complaint, the acquisition has led to reduced innovation
competition in six specific process engineering simulation software markets.
Barr Pharmaceutical, Inc.
(Final Order December 8, 2006): The consent order settles charges that Barr Pharmaceutical,
Inc.’s proposed acquisition of Pliva d.d for approximately $2.5 billion would have eliminated
current or future competition between Barr and Pliva in certain markets for generic
pharmaceuticals treating depression, high blood pressure and ruptured blood vessels, and in the
market for organ preservation solutions, thereby increasing the likelihood that consumers would
pay more for these vital products. In settling the Commission’s charges, Barr is required to sell
its generic antidepressant trazodone and its generic blood pressure medication
triamterene/HCTZ. Barr also is required to divest either Pliva’s or Barr’s generic nimodipine for
use in treating ruptured blood vessels in the brain. Finally, Barr is required to divest Pliva’s
branded organ preservation solution Custodial.
Buckeye Partners, L.P.
(Final Order December 17, 2004): Buckeye agreed to notify the Commission before acquiring
any interest in the Niles petroleum terminal for a period of ten years under provisions of a
consent order. The consent order settled charges that Buckeye's proposed acquisition of five
refined petroleum products pipelines and 24 petroleum products terminals in the United States
from Shell Oil Company would reduce competition in the market for the terminaling of gasoline,
diesel fuel, and other light petroleum products in the area of Niles, Michigan.
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Boston Scientific Corp
(Final Order July 25, 2006): The consent order settles chargers that the $27 billion acquisition of
Guidant Corporation by Boston Scientific Corporation would harm competition and consumers
in several significant medical device markets. Guidant Corporation by Boston Scientific
Corporation are the largest market shareholders in several coronary medical device markets in
the U.S., together accounting for 90% of the U.S. PTCA balloon catheter market and 85% of the
U.S. coronary guidewire market. The consent order required the divestiture of Guidant’s
vascular business to an FTC-approved buyer.
Cemex, S.A.
(Final Order March 25, 2005): Cemex S.A. agreed to settle concerns stemming from its proposed
$5.8 billion acquisition of RMC Group PLC. The final consent order required Cemex to divest
RMC’s five ready-mix concrete plants in the Tucson, Arizona area, at no minimum price to a
Commission-approved buyer.
Cephalon, Inc.
(Final Order September 20, 2004): The consent order settled charges that Cephalon's proposed
acquisition of Cima Labs, Inc. would allow Cephalon to continue its monopoly in the United
States market for drugs that eliminate or reduce the spikes of severe pain that chronic cancer
patients experience. The consent order required Cephalon to grant Barr Laboratories, Inc. a fully
paid, irrevocable license to make and sell a generic version of Cephalon's breakthrough cancer
pain drug, Actiq, in the United States.
Chevron Texaco Corporation
(Final Order July 27, 2005): Under the terms of the consent orders Chevron and Unocal will
cease enforcing Unocal’s patents covering reformulated gasoline that complies with California
Air resources Board Standard, will not undertake any new enforcement efforts related to the
particular patents, and will cease all attempts to collect damages, royalties, or other payments
related to the use of any of the patents. In addition, the companies will dismiss all pending legal
actions related to alleged infringement of the patents. According to the complaint, the
acquisition of the Unocal patents by Chevron would have facilitated coordinated interaction
among downstream refiners and marketers of CARB gasoline.
Cytec Industries, Inc.
(Final Order April 7, 2005): A final consent order requires Cytec Industries, Inc. to divest UCB’s
Amino Resins Business in Massachusetts and Germany to a Commission-approved buyer.
According to the complaint issued with the agreement, the acquisition as proposed would
eliminate direct competition between the two firms in the market for amino resins used for
industrial liquid coatings and rubber adhesion promotion.
DaVita Inc.
(Final Order November 18, 2005): The consent order resolves the competitive issues raised by
DaVita’s proposed $3.1 billion purchase of rival outpatient dialysis clinic operator Gambro
Healthcare Inc. from Gambro AB. Pursuant to the order, DaVita sold 69 dialysis clinics and end
two management services contracts in 35 markets across the United States within 10 days of
consummating its purchase of Gambro. The Commission has approved Renal Advantage Inc. as
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the buyer of most of the clinics to be divested, and entered into an order to maintain assets with
DaVita.
DSM N.V.
(Final Order January 6, 2004): A consent order permitted DSM N.V. to acquire the Vitamins and
Fine Chemicals Division of Roche Holding AG but requires DSM to divest its phytase business
to BASF AG within 10 days after the transaction is completed. Phytase is an enzyme added to
certain animal feed to promote the digestion of nutrients necessary for livestock production.
Enterprise Products Partners L.P.
(Final Order November 23, 2004): Enterprise Products Partners L.P. settled charges that its $13
billion merger with GulfTerra Energy/Partners L.P. would eliminate competition in two markets:
the pipeline transportation of natural gas from the West Central Deepwater region of the Gulf of
Mexico; and propane storage and terminaling services in Hattisburg, Mississippi. The consent
order requires the divestiture of an interest in a pipeline transportation system and an interest in a
propane facility that serves the Dixie Pipeline.
Enterprise Products Partners L.P.
(Final Order November 3, 2006): Enterprise Products Partners L.P. settled charges that its $1.1
billion acquisition of TEPPCO Partners’ NGLs salt dome storage businesses would likely result
in higher prices and service degradations by reducing the number of commercial salt dome NGL
storage providers in Mont Belvieu, Texas, from four to three. The FTC’s order required
TEPPCO to divest its interests in the world’s largest NGL storage facility in Mont Belvieu,
Texas, to an FTC-approved buyer.
Fresenius AG
(Final Order July 6, 2006): Fresenius AG settled charges that its purchase of rival dialysis
provider Renal Care Group, Inc. would likely have resulted in higher prices for dialysis services.
The consent order requires that Fresenius AG will sell 91 outpatient kidney dialysis clinics and
financial interests in 12 more.
Fresenius AG
(Final Order October 23, 2007): The Commission settled charges stemming from American
Renal Associates’ (ARA) proposed acquisition of assets from Fresenius AG, which would have
made ARA the only operator of dialysis clinics in the Warwick/Cranston area of Rhode Island.
The purchase agreement called for the sale of five Fresenius clinics to ARA, including two in the
Warwick/Cranston area, and the closure of an additional three Fresenuis clinics in Rhode Island
and Massachusetts. The parties terminated their purchase agreement after FTC staff raised
antitrust concerns, but the Commission challenged the closure of the three clinics as a naked
agreement to pay a competitor to exit the market, and also alleged a Section 7 violation in the
Warwick/ Cranston market for dialysis services. The Commission’s order bars the parties from
entering into any agreement to close dialysis clinics, and requires ARA to notify the Commission
if it intends to acquire any dialysis centers in the Warwick/Cranston area for a period of 10 years.
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GenCorp Inc.
(Final Order December 19, 2003): A consent order allowed GenCorp Inc. to acquire Atlantic
Research Corporation while requiring the divestiture of Atlantic’s in-space liquid propulsion
business within six months of consummating the transaction. According to the complaint issued
with the consent order, the transaction as originally planned would have lessened competition in
the United States in four different types of in-space propulsion engines: monopropellant
thrusters; bipropellant apogee thrusters; dual mode apogee thrusters; and biopropellant attitude
control thrusters.
General Dynamics Corporation
(Final Order February 9, 2007): The consent order settled charges that General Dynamics’
proposed $275 million acquisition of SNC Technologies, Inc. and SNC Technologies, Corp.
(collectively, SNC) would likely undermine competition by bringing together two of only three
competitors providing the U.S. military with melt-pour load, assemble, and pack (LAP) services
used during the manufacture of ammunition for mortars and artillery. Absent relief, the proposed
acquisition would likely force the U.S. military to pay higher prices for these munitions. General
Dynamics is required to sell its interest in American Ordnance to an FTC-approved buyer within
four months of acquiring SNC.
General Electric Company
(Final Order January 28, 2004): A final consent order settled antitrust concerns stemming from
General Electric Company’s proposed acquisition of Agfa-Gevaert N.V.’s nondestructive testing
business. According to the complaint issued with the consent order, the transaction as proposed
would have eliminated competition in the United States markets for portable flaw detectors,
corrosion thickness gages, and precision thickness gages - equipment used to inspect the
tolerance of materials without damaging them or impairing their future usefulness. The consent
order requires General Electric to divest its worldwide Panametrics Ultrasonic NDT business to
R/D Tech, Inc. within 20 days after the transaction is completed.
General Electric Company
(Final Order October 25, 2004): General Electric was permitted to acquire InVision
Technologies, Inc. with conditions that it divest InVision's YXLON x-ray nondestructive testing
and inspection equipment to a Commission approved acquirer. According to the complaint
issued with the consent order, the two firms are direct competitors in a highly concentrated
market. The consent order protects competition in the United States market for specialized x-ray
testing and inspection including standard x-ray cabinets; x-ray systems equipped with automated
defect recognition software; and high-energy x-ray generators.
Genzyme Corporation
(Final Order January 31, 2005): A consent order allowed Genzyme’s acquisition of ILEX
Oncology, Inc., but requires the companies to divest certain assets in the market for solid organ
transplant acute therapy drugs. Specifically, Genzyme is required to divest all contractual rights
related to ILEX’s Campath®, an immunosuppressant antibody used in solid organ transplants to
Schering AG.
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Great Atlantic & Pacific Tea Company (A&P)
(Final Order January 4, 2008): The Commission intervened in the proposed $1.3 billion
acquisition of Pathmark Stores by Great Atlantic & Pacific Tea (A&P), alleging the transaction
would have reduced competition among grocery stores in the highly concentrated markets of
Staten Island and Shirley, Long Island, New York. A&P operates stores under the A&P, A&P
Super Foodmart, Food Basics, Food Emporium, Super Fresh, and Waldbaum’s banners. The
Commission’s consent order required A&P to divest five supermarkets in Staten Island, and one
supermarket in Shirley.
Hologic, Inc.
(Final Order August 9, 2006): The Commission approved a final consent order to ensure the
maintenance of competition in the market for prone stereotactic breast biopsy systems (SBBSs).
The Commission had challenged this merger which was consummated in 2005. The order
required the divestiture of all prone SBBS assets to Siemens, a company well-positioned to
become a competitor in this market.
Hospira, Inc.
(Final Order March 23 18, 2007): The consent order settles charges that Hospira Inc.’s proposed
$2 billion acquisition of rival drug manufacturer Mayne Pharma Ltd. Would likely reduce
competition and harm consumers. In settling the Commission’s charges, the companies have
agreed to divest to Barr Pharmaceuticals, Inc. (Barr), within 10 days of the acquisition, Mayne’s
rights and assets related to the following products: hydromorphone hydrochloride
(hydromorphone), nalbuphine hydrochloride (nalbuphine), morphine sulfate (morphine),
preservative-free morphine, and deferoxamine mesylate (deferoxamine).
Itron, Inc.
(Final Order August 5, 2004): The consent order, designed to preserve competition in the market
for the manufacture and sale of mobile radio frequency automatic meter reading technologies for
electric utilities in the United States, permitted Itron's $255 million acquisition of Schlumberger
Electricity, Inc. The consent order requires Itron to grant a royalty-free, perpetual, and
irrevocable license to Hunt Technologies, Inc., creating an effective competitor in this market
that allows utility companies and others to gather electric consumption data automatically and
remotely from electricity meters.
Jarden Corporation
(Final Order September 21, 2007): The Commission charged that the acquisition of K2, Inc, a
sporting goods manufacturer, by Jarden Corporation would likely harm competition. The
proposed $1.2 billion transaction would have joined two of the nation’s leading producers of
monofilament fishing line, the most common type of line used in the United States. The consent
order settling the charges requires Jarden to sell all assets related to the manufacture and sale of
four varieties of monofilament fishing line to sporting goods company W.C. Bradley/Zebco.
Johnson & Johnson
(Final Order December 12, 2005): The consent order protects competition in three medical
device product markets affected by Johnson & Johnson’s proposed $25.4 billion acquisition of
Guidant Corporation. Under the terms of the order, J&J is required to 1) grant to a third party a
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fully paid-up, non-exclusive, irrevocable license, enabling that third party to make and sell drug
eluting stents with the Rapid Exchange delivery system, 2) divest to a third party J&J’s
endoscopic vessel harvesting product line, and 3) end its agreement to distribute Novare Surgical
System, Inc.’s proximal anastomotic assist device. On May 31st, 2006 the Commission granted
a petition filed by Johnson and Johnson Corporation, requesting that the FTC reopen and set
aside the entire decision and order concerning the proposed acquisition of Guidant Corporation.
Johnson & Johnson
(Final Order January 19, 2007): The consent order settles charges that Johnson & Johnson’s
(J&J) proposed $16.6 billion acquisition of Pfizer Inc.’s (Pfizer) Consumer Healthcare business
would likely reduce competition in the U.S. markets for over-the-counter (OTC) H-2 blockers
used to prevent and relieve heartburn, OTC hydrocortisone anti-itch products, OTC night-time
sleep aids, and OTC diaper rash treatments. In settling the Commission’s charges, the
companies have agreed to sell Pfizer’s Zantac H-2 blocker business to Boehringer Ingelheim
Pharmaceuticals Inc. (Boehringer), and Pfizer’s Cortizone hydrocortisone anti-itch business,
Pfizer’s Unisom night-time sleep aid business, and J&J’s Balmex diaper rash treatment business
to Chattem, Inc.
Kinder Morgan, Inc.
(Final Order March 16, 2007): The order settles charges that the proposed $22 billion deal
whereby energy transportation, storage, and distribution firm Kinder Morgan, Inc. (KMI) would
be taken private by KMI management and a group of investment firms, including private equity
funds managed and controlled by The Carlyle Group (Carlyle) and Riverstone Holdings LLC
(Riverstone) would threaten competition between KMI and Magellan in eleven metropolitan
areas in the Southeast, likely resulting in higher prices for gasoline and other light petroleum
products. The order requires that Carlyle’s and Riverstone’s interest in Magellan become a
passive investment, by requiring them to: (1) removing all of their representatives from the
Magellan Board of Managers and its boards of directors, (2) ceding control of Magellan to its
other principal investor, Madison Dearborn Partners, and (3) not influencing or attempting to
influence the management or operation of Magellan.
Kyphon Inc.
(Final Order December 7, 2007): The Commission challenged Kyphon Inc.’s $220 million
proposed acquisition of the spinal assets of Disc-O-Tech Medical Technologies, Ltd. and
Discotech Orthopedic Technologies (collectively Disc-O-Tech) as anticompetitive in the market
for minimally invasive vertebral compression fracture treatment products in the U.S. Disc-OTech’s Confidence products promised real benefits to patients in treating these painful fractures
in a minimally invasive way, and threatened Kyphon’s near-monopoly on treatment options.
The Commission’s consent order required that Kyphon divest all assets, intellectual property and
development rights related to the Confidence brand to an FTC-approved buyer.
Linde, AG
(Final Order September 5, 2006): In August 2006, the FTC approved a final consent order
relating to the proposed $14.4 billion acquisition of the BOC Group by Linde requiring Linde to
divest Air Separation Units (ASUs), bulk refined helium assets, and other assets in eight
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localities across the United States. The consent order aims to maintain competition in the
markets for liquid oxygen, liquid helium, and bulk refined helium in several U.S. markets.
Mylan
(Final Order November 6, 2007) The Commission ordered divestitures to resolve competitive
concerns in the U.S. market for five generic drugs stemming from Mylan Laboratories’ proposed
acquisition of the generic arm of Merck Pharmaceuticals, a transaction valued at approximately
$6.6 billion. Under a September 2007 consent order with the Commission, Mylan and Merck
must divest all assets relating to flecainide acetate tablets, acebutolol hydrochloride capsules,
guanfacine hydrochloride tablets, nicardipine hydrochloride capsules, and sotalol hydrochloride.
The generic drugs at issue are used for the treatment of many conditions, including hypertension
and heart arrhythmia. The order requires the divestiture of all assets related to the relevant
products to Amneal Pharmaceuticals, a generic drug manufacturer.
Magellan Midstream Partners, L.P.
(Final Order November 23, 2004): Under terms of a consent order, Magellan completed its
acquisition of pipelines and terminals in the Midwestern United States and a refined petroleum
products terminal in Oklahoma City that supplies light petroleum products such as gasoline and
diesel fuel from the Shell Oil Company. The consent order required Magellan to divest the
Shell Oklahoma City terminal to a Commission-approved buyer within six months after the
transaction is consummated.
Novartis AG
(Final Order September, 21 2005): To resolve overlaps for three generic pharmaceuticals that
arose from Novartis AG’s acquisition of Eon Labs, Inc., under the terms of a consent order,
Novartis is required to divest all the assets necessary to manufacture and market generic
desipramine hydrochloride tablets, orphenadrine citrate extended release (ER) tablets, and
rifampin oral capsules in the United States to Amide within 10 days of Novartis’s acquisition of
Eon. Further, Novartis, through its Sandoz generic pharmaceuticals division, will supply Amide
with orphenadrine citrate ER and desipramide hydrochloride tablets until Amide obtains Food
and Drug Administration (FDA) approval to manufacture the products itself, and will assist
Amide in obtaining all necessary FDA approvals.
Occidental Chemical Corporation
(Final Order July 13, 2005): A consent order allows Occidental Chemical Company’s purchase
of the chemical assets of Vulcan Materials Company, provided Occidental divests Vulcan’s Port
Edwards, Wisconsin, chemical facility and related assets. The consent order alleviates the
alleged anticompetitive impact of the acquisition in the markets for potassium hydroxide,
anhydrous potassium carbonate (APC), and potassium carbonate, which includes APC and liquid
potassium carbonate. The Port Edwards facility will be divested to ERCO Worldwide or to
another Commission-approved buyer within six months if a problem is encountered with ERCO
sale.
Owens Corning
(Final Order December 7, 2007): The Commission remedied competitive problems raised by
Owens Corning’s proposed acquisition of glass fiber reinforcements and composite fabric assets
8
from Compagnie de Saint Gobain. The investigation involved cooperation among staff of the
FTC, the European Commission, and Mexico’s Federal Competition Commission. After staff
from the competition agencies raised antitrust concerns, the parties modified their agreement to
exclude Saint Gobain’s glass fiber reinforcement assets in the U.S. and certain assets in Europe.
The Commission’s consent order addressed additional competitive problems in the highly
concentrated North American market for continuous filament mat, which is used in the
production of non-electrical laminate, marine parts and accessories, and other products. The
order requires Owens Corning to divest sufficient U.S. continuous filament mat facilities, assets,
and intellectual property to enable the buyer effectively to produce and sell the products in
competition with the new Owens Corning/Saint Gobain joint venture.
Penn National Gaming, Inc.
(Final Order September 15, 2005): A consent order permitted Penn National Gaming, Inc.’s
acquisition of Argosy Gaming Company, provided Penn sells Argosy’s Baton Rouge casino to
Columbia Sussex Corporation within four months of the order becoming final.
Rite Aid Corporation
(Final Order September 21, 2007): The Commission charged that Rite Aid Corporation’s $3.5
billion acquisition of competitors Brooks and Eckerd Pharmacies from the Canadian drug store
operator Jean Coutu Group, Inc. was anticompetitive and required the sale of retail pharmacies
located in 23 cities along the East Coast. According to the Commission’s complaint, the merger
would have substantially reduced competition in the sale of pharmacy services to customers in
those areas, where customers view stores operated by the two companies as their two best
options. The consent order requires Rite Aid to divest pharmacies in those cities to buyers preapproved by the Commission. The investigation, which included cooperation from the state
attorneys general of Maryland, New Jersey, New York, Pennsylvania, Vermont, Virginia, and
Maine, was handled by the agency’s Northeast Regional Office.
Sanofi-Synthélabo
(Final Order September 20, 2004): The consent order settled antitrust concerns that Sanofi's
proposed $64 billion acquisition of Aventis would create significant overlaps in several markets
for pharmaceutical products while creating the world's third largest pharmaceutical company.
Under terms of the consent order, Sanofi must: 1) divest its Arixtra factor Xa inhibitor to
GlaxoSmithKline, plc; 2) divest its key clinical studies for the Campto® cytotoxic colorectal
cancer treatment to Pfizer, Inc. and 3) divest Aventis' contractual rights to the Estorra insomnia
drug either to Sepracor, Inc. or to another Commission-approved buyer.
Service Corporation International
(Final Order January 5, 2007): The consent order settled charges that Service Corporation
International’s (SCI) proposed acquisition of Alderwoods Group Inc. would likely lessen
competition in 47 markets for funeral or cemetery services, leaving consumers with fewer
choices and the prospect of higher prices or reduced levels of service. Under the settlement, SCI
must sell funeral homes in 29 markets and cemeteries in 12 markets across the United States. In
six other markets, SCI must sell certain funeral homes that it plans to acquire or end its licensing
agreements with third-party funeral homes affiliated with SCI.
9
Schering-Plough Corp
(Final Order January 4, 2008): The Commission charged that Schering-Plough’s proposed $14.4
billion acquisition of Organon Biosciences N.V. threatened to substantially reduce competition
in the U.S. market for three popular vaccines used to treat poultry, a staple in American food
markets. The November 2007 order settling the charges required the sale of assets required to
develop, manufacture, and market these vaccines to Wyeth. In addition, Schering-Plough was
required to sign a supply and transition services agreement with Wyeth, under which Schering
will provide the vaccines for a period of two years, allowing time for the necessary FDA
approvals.
Teva Pharmaceutical Industries Ltd
(Final Order March 7, 2006): The consent order allowed Teva to acquire IVAX Corporation,
provided the companies sell the rights and assets needed to manufacture and market 15 generic
pharmaceutical products. Among the drugs sold were several forms of generic amoxicillin and
amoxicillin clavulanate potassium that are widely used in the United States.
The Procter & Gamble Company
(Final Order December 16, 2005): The consent order permitted The Procter & Gamble
Company’s acquisition of rival consumer products manufacturer The Gillette Company,
provided the companies divest: 1) Gillette’s Rembrandt at-home teeth whitening business; 2)
P&G’s Crest SpinBrush battery-powered and rechargeable toothbrush business; and 3) Gillette’s
Right Guard men’s antiperspirant deodorant business. In addition, P&G must amend its joint
venture agreement with Philips Oral Health Care, Inc. regarding the Crest Sonicare IntelliClean
System rechargeable toothbrush to allow Philips to independently market and sell rechargeable
toothbrushes.
The Boeing Company
(Final Order May 8, 2007): The Commission intervened in the formation of United Launch
Alliance (ULA), a proposed joint venture between the Boeing Corp. and Lockheed Martin Corp.
The FTC’s complaint alleged that the formation of ULA as originally structured would have
reduced competition in the markets for U.S. government medium to heavy launch services and
space vehicles. In settling the Commissions’ charges, the parties agreed to take certain actions
(such as nondiscrimination requirements and firewalls) to address ancillary competitive harms
not inextricably tied to the national security benefits of ULA.
Thermo Electron Corporation
(Final Order December 5, 2006): The consent order settled charges that charged that Thermo
Electron Corporation’s proposed $12.8 billion acquisition of Fisher Scientific International, Inc.
would harm competition in the U.S. market for high-performance centrifugal vacuum
evaporators (CVEs) in violation of the antitrust laws. Thermo and Fisher are the only two
significant suppliers of high-performance CVEs in the United States and the proposed
transaction would eliminate the direct price, service, and innovation competition that exists
between them. To settle the Commission’s charges, Thermo is required to divest Fisher’s
Genevac division, which includes Fisher’s entire CVE business, within five months of the date
the consent agreement was signed.
10
Valero L.P.
(Final Order July 27, 2005): The consent order permitted Valero L.P. to acquire Kaneb Services
LLC and Kaneb Pipe Line Partners subject to the divestitures of assets that will preserve existing
competition for petroleum transportation and terminaling in Northern California, Pennsylvania,
and Colorado, and avoid a potential increase in bulk gasoline and diesel prices. The order also
requires Valero to develop an information firewall and maintain open, non-discriminatory access
to two retained Northern California terminals, in order to ensure access to ethanol terminaling in
Northern California.
Watson Pharmaceuticals, Inc.
(Final Order December 12, 2006): A consent order settled charges that Watson Pharmaceuticals,
Inc.’s proposed $1.9 billion acquisition of Andrx Corporation, would have likely led to
competitive problems in the markets for 13 generic drug products. Watson was required to end
its marketing agreements with Interpham Holdings, divest Andrx’s right to develop, make, and
market generic extended release tablets that correct the effects of type 2 diabetes, and divest
Andrx’s rights and assets related to the developing and marketing of 11 generic oral
contraceptives.
B.
Authorizations to Seek Preliminary Injunctions
Aloha Petroleum, Ltd
(July 26, 2005): The Commission authorized staff, in conjunction with the Hawaii Attorney
General, to seek a preliminary injunction to block Aloha Petroleum’s proposed acquisition of
Trustreet Properties. Aloha sought to acquire Trustreet’s half interest in the Barber Point
petroleum importing terminal, when Aloha already owned the other half interest. The proposed
acquisition would have reduced the number of marketers with ownership or access to a refinery
or importing terminal from five to four, and the number of suppliers selling to unintegrated
retailers from three to two. After Aloha subsequently announced a long-term agreement with a
third party, Mid-Pac Petroleum that would enable Mid-Pac to replace Trustreet as a bulk gasoline
supplier, the Commission sought to dismiss its federal court complaint on the ground of changed
circumstances.
Arch Coal, Inc.
(March 30, 2004): The Commission authorized staff to file a complaint to block Arch Coal,
Inc.’s proposed acquisition of Triton Coal Company, L.L.C. from New Vulcan Holdings, L.L.C.
on grounds that the acquisition would increase concentration and tend to create a monopoly in
the market for coal mined from the Southern Powder River Basin and in the production of 8800
British Thermal Unit coal. On April 1, 2004, the complaint was filed in the U.S. District Court
for the District of Columbia. On June 13, 2005 the Commission announced that it was closing
its investigation, saying that it will not continue with administrative litigation challenging the
deal.
11
Equitable Resources, Inc.
(April 13, 2007): The Commission filed a federal court injunction action to block Equitable
Resources’ proposed acquisition of The Peoples Natural Gas Company, a subsidiary of
Dominion Resources; previously, on March 15, 2007, the Commission had filed an
administrative complaint. The Commission challenged the merger-to-monopoly in natural gas
distribution as detrimental to nonresidential customers in certain areas of Allegheny County,
Pennsylvania, which includes Pittsburgh. In May 2007, the federal district court in Pittsburgh
denied the FTC’s motion for a preliminary injunction and dismissed the complaint, ruling that
because the Pennsylvania Utility Commission has the power to approve the merger, the
Commission is barred from taking action under the state action doctrine. In June 2007, the U.S.
Court of Appeals for the Third Circuit granted the Commission’s motion for an injunction
pending appeal. The parties abandoned the transaction in January 2008, and in February 2008
the Commission dismissed the administrative complaint. Subsequently, on March 3, 2008, the
US Court of Appeals for the Third Ciruit vacated the disctrict court opinion.
Western Refining
(April 10, 2007): The Commission issued an administrative complaint and initiated federal court
action to block Western Refining, Inc.’s $1.4 billion proposed acquisition of rival energy
company Giant Industries, Inc. to preserve competition in the supply of bulk light petroleum
products, including motor gasoline, diesel fuels, and jet fuels, in northern New Mexico. After a
week-long trial, the federal district court denied the Commission’s motion for a preliminary
injunction, rejecting arguments that Giant had unique opportunities to increase supply and lower
fuel prices in northern New Mexico. In October, the Commission dismissed its administrative
complaint, concluding that further prosecution would not be in the public interest.
Whole Foods
(June 7, 2007): The Commission sought a federal court temporary restraining order (TRO) and
preliminary injunction, and issued an administrative complaint, against Whole Food Market,
Inc.’s proposed acquisition of its chief rival, Wild Oats Markets, Inc. According to the
complaint, the approximately $670 million deal raised competition problems in 21 local markets
where Whole Foods and Wild Oats both operated stores and were each other’s closest
competitors among premium national and organic supermarkets. The district court granted the
TRO, but subsequently denied the preliminary injunction after an abbreviated hearing,
concluding that the merger’s likely effect would not be substantially to reduce competition in
violation of Section 7 of the Clayton Act. The Commission has appealed the district court’s
ruling on grounds that the lower court failed to apply the proper legal standard that governs
preliminary injunction applications by the Commission in Section 7 cases. Oral arguments in the
Court of Appeals for the District of Columbia are set for April 23, 2008.
C.
Commission Opinions/Initial Decisions
Chicago Bridge & Iron Company
(January 25, 2008): The U.S. Court of Appeals for the Fifth Circuit upheld a Commission order
requiring Chicago Bridge & Iron Co., N.V. and its United States subsidiary (“CB&I”) to divest
assets acquired from Pitt-Des Moines, Inc. used in the business of designing, engineering and
building field-erected cryogenic storage tanks. In its 2005 order, the Commission had ruled that
12
CB&I’s acquisition of these assets in 2001, during a pending FTC investigation, would likely
result in a substantial lessening of competition or tend to create a monopoly in four markets for
industrial storage tanks in the Untied States, in violation of Section 7 of the Clayton Act and
Section 5 of the FTC Act. The court endorsed the Commission’s findings, based on an extensive
review of many years of bidding data, that the merged firms controlled over 70 percent of the
market, and that new entry was unlikely given the high entry barriers based on the incumbents’
reputation and control of skilled crews
On January 7, 2005 the Commission upheld in part the ruling of an administrative law
judge that Chicago Bridge & Iron’s acquisition of the Water Division and the Engineered
Construction Division of Pitt-Des Moines, Inc. created a near-monopoly in four separate markets
involving the design and construction of various types of field-erected specialty industrial
storage tanks in the United States. In an effort to restore competition as it existed prior to the
merger, the Commission ordered Chicago Bridge to reorganize the relevant product business into
two separate, stand-alone, viable entities capable of competing in the markets described in the
complaint and to divest one of those entities within six months.
On June 27, 2004, an administrative law judge upheld the complaint and ordered the
divestiture all of the assets acquired in the acquisition. In December 2004, the Commission
approved an interim consent order prohibiting Chicago Bridge & Iron from altering the assets
acquired from Pitt-Des Moines, Inc. except “in the ordinary course of business.” These assets
included but were not limited to real property; personal property; equipment; inventories; and
intellectual property.
In an administrative complaint issued on October 25, 2001, the Commission challenged
the February 2001 purchase of the Water Division and Engineered Construction Division of PittDes Moines, Inc. alleging that the acquisition significantly reduced competition in four separate
markets involving the design and construction of various types of field-erected specialty
industrial storage tanks in the United States. The initial decision filed June 27, 2003 upheld the
complaint.
Northwestern Healthcare Corporation
(August 2007), the Commission ruled that Evanston Northwestern Healthcare Corp.’s 2000
acquisition of Highland Park Hospital was anticompetitive and resulted in higher prices for acute
care inpatient hospital services in parts of Chicago’s northern suburbs. The Commission
concluded that in this “highly unusual case,” divestiture, the remedy imposed by the
administrative law judge, would be too costly and potentially risky and instead imposed a
conduct remedy. The Commission’s order requires Evanston to set up two separate and
independent contract negotiation teams to bargain with managed care organizations to revive
competition between Evanston’s two hospitals and the Highland Park hospital.
In an initial Decision dated October 17, 2005 the Administrative law judge found that
Evanston Northwest Healthcare Corporation’s acquisition of an important competitor, Highland
Park Hospital, resulted in higher prices and substantially lessened competition for acute care
inpatient services in parts of Chicago’s northwestern suburbs. The Administrative law judge
found that the evidence established that the merged hospital exercised its enhanced post-merger
market power to obtain price increases significantly above its premerger prices and substantially
larger than price increases obtained by comparable hospitals. The ALJ also found that the
evidence ruled out explanations for the price increase, other that the exercise of market power.
The ALJ entered an order that would require the divestiture of the acquired hospital.
13
The hospital’s appeal of the ALJ’s decision and order requiring divestiture of Highland Park
Hospital is now pending before the Commission.
On February 10, 2004 the Commission issued an administrative complaint alleging that
following Evanston Northwestern Healthcare Corporations’s acquisition of Highland Park
Hospital prices charged to health insurers for medical services increased and, therefore, higher
costs for health insurance were passed on to consumers of hospital services in the Cook and Lake
counties of Illinois. The complaint also alleges that a physicians group affiliated with both
hospitals, Highland Park Independent Physician Group, negotiated prices for physicians on staff
at Evanston as well as for several hundred independent physicians not affiliated with either
hospital. According to the complaint, these actions constitute illegal price fixing among
competing physicians or physician groups and deny consumers the benefits of competition in
physician services.
In May, 2005, the Commission approved a final consent order to resolve a separate count
in the complaint involving alleged price fixing by doctors associated with the two hospitals.
D.
Court Decisions
Arch Coal, Inc.
(August 13, 2004): The U.S. District Court for the District of Columbia denied the
Commission’s request for a preliminary injunction to block Arch Coal, Inc.’s proposed
acquisition of Triton Coal Company, L.L.C. from new Vulcan Holdings, L.L.C. The parties
consummated the deal after the Circuit Court of Appeals for the District of Columbia refused to
issue a stay pending an appeal of the district court decision.
The administrative complaint issued on April 6, 2004 challenged the proposed acquisition
of all the assets of Triton Coal Company, L.L.C. from New Vulcan Coal Holdings, L.L.C.
According to the complaint, the acquisition would have combined two of the four leading
producers of coal in Wyoming’s Southern Powder River Basin. On September 10, 2004, the
administrative complaint was withdrawn from adjudication. The Commission decided not to
pursue an appeal of the decision of the U.S. District Court for a preliminary injunction to block
the sale of Triton to Arch Coal. On June 13, 2005 the Commission announced that it was closing
its investigation, saying that it will not continue with administrative litigation challenging the
deal.
E.
Order Violations
RHI AG
(April 1, 2004): RHI AG paid a total civil penalty of $755,686.41 to settle charges that it violated
a 1999 consent order concerning its acquisition of Global Industrial Technologies, Inc.
According to the complaint, filed in the United States District Court for the District of Columbia,
RHI not only failed to divest the two refractories plants and other assets to Resco Products, Inc.,
but it did not completely comply with other provisions required by the settlement agreement.
14
F.
Other Commission Orders
None
G.
Administrative Complaints
Equitable Resources, Inc.
(March 15, 2007): The Commission filed an administrative complaint, and on April 13, 2007 a
federal court injunction action to block Equitable Resources’ proposed acquisition of The
Peoples Natural Gas Company, a subsidiary of Dominion Resources. The Commission
challenged the merger-to-monopoly in natural gas distribution as detrimental to nonresidential
customers in certain areas of Allegheny County, Pennsylvania, which includes Pittsburgh. In
May 2007, the federal district court in Pittsburgh denied the FTC’s motion for a preliminary
injunction and dismissed the complaint, ruling that because the Pennsylvania Utility Commission
has the power to approve the merger, the Commission is barred from taking action under the
state action doctrine. In June 2007, the U.S. Court of Appeals for the Third Circuit granted the
Commission’s motion for an injunction pending appeal. The parties abandoned the transaction
in January 2008, and in February 2008 the Commission dismissed the administrative complaint.
Subsequently, on March 3, 2008, the US Court of Appeals for the Third Ciruit vacated the
disctrict court opinion.
Western Refining
(April 10, 2007): The Commission issued an administrative complaint and initiated federal court
action to block Western Refining, Inc.’s $1.4 billion proposed acquisition of rival energy
company Giant Industries, Inc. to preserve competition in the supply of bulk light petroleum
products, including motor gasoline, diesel fuels, and jet fuels, in northern New Mexico. After a
week-long trial, the federal district court denied the Commission’s motion for a preliminary
injunction, rejecting arguments that Giant had unique opportunities to increase supply and lower
fuel prices in northern New Mexico. On October 3, 2007, the Commission dismissed its
administrative complaint, concluding that further prosecution would not be in the public interest.
Whole Foods
(June 5, 2007): The Commission issued an administrative complaint, and sought a federal court
temporary restraining order (TRO) and preliminary injunction, against Whole Food Market,
Inc.’s proposed acquisition of its chief rival, Wild Oats Markets, Inc. According to the
complaint, the approximately $670 million deal raised competition problems in 21 local markets
where Whole Foods and Wild Oats both operated stores and were each other’s closest
competitors among premium national and organic supermarkets. The district court granted the
TRO, but subsequently denied the preliminary injunction after an abbreviated hearing,
concluding that the merger’s likely effect would not be substantially to reduce competition in
violation of Section 7 of the Clayton Act. The Commission has appealed the district court’s
ruling on grounds that the lower court failed to apply the proper legal standard that governs
preliminary injunction applications by the Commission in Section 7 cases. Oral arguments in the
Court of Appeals for the District of Columbia are set for April 23, 2008.
15
H.
Other
Horizontal Merger Investigation Data
Fiscal Years 1996 – 2005. Staff analysis of horizontal investigations. The staff tabulated certain
market structure information as it relates to the Commission’s decision whether or not to seek
relief in specific markets investigated. Released January 25, 2007.
2007 Report on Ethanol Market Concentration
The study examines the current state of ethanol production in the United States and measures
market concentration using capacity and production data. Released November 29, 2007.
2006 Report on Ethanol Market Concentration
The study examines the current state of ethanol production in the United States and measures
market concentration using capacity and production data. Released December 5, 2006.
2005 Report on Ethanol Market Concentration
The study examines the current state of ethanol production in the United States and measures
market concentration using capacity and production data. Released December 2, 2005.
Conference on the Price Effects of Mergers and Concentration in the United States
Petroleum Industry
(January 14, 2005, Washington, DC.) The conference reviewed two studies that examined price
effects within the petroleum industry: the March 2004 case study of the effects of the
Marathon/Ashland Corporation joint venture; the second, the May 2004 report by the
Government Accountability Office that examined the effects of mergers and market
concentration in the United States petroleum industry.
Horizontal Merger Investigation Data
Fiscal Years 1996 – 2003. Staff analysis of horizontal investigations. The staff tabulated certain
market structure information as it relates to the Commission’s decision whether or not to seek
relief in specific markets investigated. Released February 2004.
Merger Enforcement Workshop
(February 17 - 19, 2004) sponsored by the Federal Trade Commission and the Department of
Justice. Topics discussed:
• Hypothetical Monopolist Test
• Concentration & Market Shares
• Monopsony
• Non-Price Competition/Innovation
• Unilateral Effects
• Coordinated Effects
• Uncommitted Entry
• Efficiencies/Dynamic Analysis/Integrated Analysis
16
II. Hart-Scott-Rodino Antitrust Improvements Act
Enforcement
A.
Court Decisions
James D. Dondero
(May 21, 2007): Dondero,the ultimate parent entity of Highland Capital Management, L.P.
(Highland), a hedge fund that specializes in senior bank loans, paid $250,000 to settle charges
that starting in August 2003, Highland acquired shares in Neighborcare, Inc., which was then
known as Genesis Health Ventures, without complying with the filing and reporting
requirements of the Hart-Scott-Rodino (HSR) Premerger Notification Act.
Scott R. Sacane
(September 26, 2005): A Connecticut-based hedge fund manager who failed to report several
large stock purchases before they were made, as required by the Hart-Scott-Rodino (HSR)
Premerger Notification Act, paid a $350,000 civil penalty to settle Federal Trade Commission
charges. The complaint alleged that Scott Sacane, manager of the Durus Life Sciences Master
Fund, failed to make four required premerger notification filings. His failure to do so violated the
HSR Act for each transaction.
William H. Gates, III
(May 4, 2004): William H. Gates, III paid $800,000 in civil penalties to settle charges that he
acquired more than ten percent of the voting securities of Republic Services, Inc. without
observing the filing and waiting period requirements under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976. The complaint was filed in the federal district court in Washington,
DC.
B.
Consent Orders
None
C.
Complaints - Filed
Blockbuster, Inc.
(March 4, 2005): The Commission filed a complaint under Section 7A(g)(2) of the Clayton Act
in U.S. District Court for the District of Columbia to require Blockbuster, Inc. to provide
sufficient and accurate pricing data in compliance with the second request issued by the
Commission under the statutory rules of the Hart-Scott-Rodino Act. Blockbuster cannot proceed
with its proposed acquisition of Hollywood Entertainment Corporation until 30 days from the
date it has substantially complied with the second request.
17
D.
Complaints - Authorized
Arch Coal, Inc.
(February 23, 2004): The Commission authorized staff to file a complaint in federal district court
for a temporary restraining order under Section 7A(g)(2) of the Clayton Act to block Arch Coal’s
proposed acquisition of Triton Coal Company until Arch Coal substantially complied with the
Commission’s request for addition information under the Hart-Scott-Rodino Act. After Arch
Coal was notified that the Commission authorized a Section 7A(g)(2) complaint, Arch withdrew
its Certification of Substantial Compliance with the second request and provided additional
information. On June 13, 2005 the Commission announced that it was closing its investigation,
saying that it will not continue with administrative litigation challenging the deal.
E.
Rules and Formal Interpretations
Hart-Scott Final Rulemaking
(Effective January 29, 2008): The notification and filing thresholds under the premerger rules
have been revised as required by the 2000 amendments to Section 7A of the Clayton Act.
Section 7A(a)(2) requires the Commission to revise the jurisdictional thresholds annually, based
on the change in gross national product, in accordance with section 8(a)(5) for each fiscal year
beginning after September 30, 2004.
Hart-Scott Final Rulemaking
(Effective February 21, 2007): The notification and filing thresholds under the premerger rules
have been revised as required by the 2000 amendments to Section 7A of the Clayton Act.
Section 7A(a)(2) requires the Commission to revise the jurisdictional thresholds annually, based
on the change in gross national product, in accordance with section 8(a)(5) for each fiscal year
beginning after September 30, 2004.
Hart-Scott Final Rulemaking
(Effective July 23, 2006): The Federal Trade Commission and the Department of Justice’s
Antitrust Division implemented an electronic filing system that allows merging parties to submit
via the Internet premerger notification filings required by the Hart-Scott-Rodino Act.
Hart-Scott Final Rulemaking
(Effective February 18, 2006): The notification and filing thresholds under the premerger rules
have been revised as required by the 2000 amendments to Section 7A of the Clayton Act.
Section 7A(a)(2) requires the Commission to revise the jurisdictional thresholds annually, based
on the change in gross national product, in accordance with section 8(a)(5) for each fiscal year
beginning after September 30, 2004.
18
Reforms to the Merger Review Process
(Effective February 16, 2006): Reforms to the agency’s merger review process establishing that
the FTC will:
• limit the number of employees required to provide information in response to a second
request, provided the party complies with specified conditions;
• reduce the time period for which a party must provide documents in response to the
second request;
• allow a party to preserve far fewer backup tapes and produce documents on those tapes
only when responsive documents are not available through more accessible sources; and
• significantly reduce the amount of information parties must submit regarding documents
they consider to be privileged.
Hart-Scott Rodino Reform / Amended Final Rules
(Effective January 11, 2006): Amendments to Parts 801 and 802 of the Premerger Notification
Rules allowing filing persons to provide an Internet address linking directly to the documents
required by Items 4(a) and (b) in lieu of providing paper copies.
Hart-Scott Rodino Reform / Amended Final Rules
(Effective December 12, 2005): Amendments to Parts 801 and 802 of the Premerger Notification
Rules requiring use of 2002 NAICS rather than 1997 NAICS when reporting economic data by
industry and product codes.
Hart-Scott Rodino Final Rulemaking
(Effective April 7, 2005): Final rules adopted from proposed rules published April 8, 2004. The
amendments require notification of acquisitions of interests in unincorporated entities and
formations of unincorporated entities. The rules also extend the application of certain
exemptions, including the intraperson exemption, to unincorporated entities.
Hart-Scott Final Rulemaking
(Effective March 2, 2005): The notification and filing thresholds under the premerger rules have
been revised as required by the 2000 amendments to Section 7A of the Clayton Act. Section
7A(a)(2) requires the Commission to revise the jurisdictional thresholds annually, based on the
change in gross national product, in accordance with section 8(a)(5) for each fiscal year
beginning after September 30, 2004.
F.
Other
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976
(July 24, 2007): Twenty-ninth Annual Report (Fiscal Year 2006).
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976
(September 8, 2006): Twenty-eight Annual Report (Fiscal Year 2005).
19
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976
(August 16, 2005): Twenty-seventh Annual Report (Fiscal Year 2004).
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976
(September 7, 2004): Twenty-sixth Annual Report (Fiscal Year 2003).
Model Retail Second Request
(April 28, 2004) Model Request for Additional Information and Documentary Material (Second
Request) for transactions involving retail industries.
III. Non-Merger Enforcement
A.
Commission Opinions/Initial Decisions
Kentucky Household Goods Carriers Association, Inc.
(June 21, 2004): An administrative law judge upheld an administrative complaint that charged a
group of affiliated intrastate movers with engaging in horizontal price-fixing by filing collective
rates on behalf of its member motor common carriers for the intrastate transportation of property
within the Commonwealth of Kentucky. The judge also ruled that the association’s conduct was
not protected by the state action doctrine because the State of Kentucky did not supervise the
rate-making practices of the group. On July 12, 2004, the Kentucky Household Goods Carriers
Association, Inc. filed an appeal of the initial decision with the Commission. The oral argument
was held January 24, 2005. On June 22, 2005, the Commission issued a unanimous opinion
upholding the Initial Decision finding that the Kentucky Household Goods Carriers Association,
Inc., consisting of competing firms, engaged in illegal price-fixing by jointly filing tariffs
containing collective rates on behalf of its members, and that the state action doctrine does not
immunize that activity from antitrust liability. On August 22, 2006, the Sixth Circuit Court of
Appeals affirmed the opinion of the Commission in Kentucky Household Goods Carriers
Association, Inc., finding that the Association’s ratemaking activities constituted unlawful price
fixing and were not exempt from the antitrust laws under the state action doctrine.
The administrative complaint issued on July 8, 2003 by the Commission charged that the
association composed of competing household goods movers filed collective rates for intrastate
moving services in the state of Kentucky. According to the complaint, these activities were not
protected under the state action doctrine and are not immune from federal antitrust scrutiny.
North Texas Specialty Physicians
(November 8, 2004): An administrative law judge upheld the administrative complaint that
charged that the North Texas Specialty Physicians, a physician group practicing in Forth Worth,
Texas, collectively determined acceptable fees for physician services in negotiating contracts
with health insurance plans and other third party payers. The judge ruled that complaint counsel
proved that North Texas Specialty Physicians engaged in horizontal price fixing. The
accompanying order prohibits the group from negotiating, on behalf of its members, collective
20
pricing of contracts with health plan services for the provision of physician services. On January
14, 2005, North Texas Specialty Physicians filed a notice of appeal of the initial decision. On
December 1, 2005, the Commission issued a unanimous decision upholding the allegations that
North Texas Specialty Physicians negotiated agreements among participating physicians on price
and other terms, refused to negotiate with payers except on terms agreed to among its members,
and refused to submit payor offers to members if the terms did not satisfy the group’s demands.
The Commission concluded that the group’s contracting activities with payors “amount[s] to
unlawful horizontal price fixing” and that respondent’s efficiency claims were not legitimate and
not supported by the evidence. The respondent has appealed the Commission decision to the
U.S. Court of Appeals for the Fifth Circuit. On March 7, 2007, the Fifth Circuit Court of
Appeals heard oral arguments in the appeal by respondents of the Commission's opinion in North
Texas Specialty Physicians.
The administrative complaint, issued on September 16, 2003 by the Commission, charged
that the corporation of 600 physicians negotiated the price and other terms of medical services
that its participating physicians would accept in contracting with third party payers. According
to the complaint, the exchange of prospective price information among otherwise competing
physicians reduced competition and enabled the physicians to achieve supra-competitive prices.
Rambus, Inc.
(June 19, 2002) The Commission filed a complaint with an administrative law judge charging
that between 1991 and 1996 Rambus, Inc. joined and participated in the JEDEC Solid State
Technology Association (JEDEC), the leading standard-setting industry for computer memory.
According to the complaint, JEDEC rules require members to disclose the existence of all
patents and patent applications that relate to JEDEC’s standard-setting work. While a member of
JEDEC, Rambus observed standard-setting work involving technologies which Rambus believed
were or could be covered by its patent applications, but failed to disclose this to JEDEC. In 1999
and 2000, after JEDEC had adopted industry-wide standards incorporating the technologies at
issue and the industry had become locked in to the use of those technologies, Rambus sought to
enforce its patents against companies producing JEDEC-compliant memory, and in fact has
collected substantial royalties from several producers of DRAM (dynamic random access
memory).
(February 17, 2004) The administrative law judge dismissed all charges against Rambus,
ruling that Commission staff had failed to sustain their burden of proof with respect to all three
violations alleged in the complaint. The Initial Decision found that Rambus’ conduct before the
JEDEC standard-setting organization did not amount to deception and did not violate any
extrinsic duties, such as a duty of good faith to disclose patents or patent applications. The
Initial Decision also found that the there was insufficient evidence that there were viable
alternatives to Rambus’ technology before the standard setting organization.
(August 2, 2006) The FTC issued an opinion by Commissioner Pamela Jones Harbour
concluding that Rambus unlawfully monopolized markets for four computer memory
technologies that have been incorporated into industry standards DRAM chips. DRAMs are
widely used in personal computers, servers, printers, and cameras. The Commission found that,
through a course of deceptive conduct, Rambus was able to distort a critical standard-setting
process and engage in an anticompetitive “hold up” of the computer memory industry. The
Commission held that Rambus’s acts of deception constituted exclusionary conduct under
21
Section 2 of the Sherman Act and contributed significantly to Rambus’s acquisition of monopoly
power in the four relevant markets.
(February 5, 2007) Chairman Majoras issued the opinion of the Commission on remedy
in the Rambus matter. In this opinion, the Commission prescribed a set of remedies barring
Rambus from making misrepresentations or omissions to standard-setting organizations,
requiring Rambus to license its SDRAM and DDR SDRAM technology and setting limits to the
royalty rates it can collect under the licensing agreements including with those firms that may
have already incorporated its DRAM technology, and requiring Rambus to employ a
Commission-approved compliance officer to ensure it discloses relevant patent information to
any standard-setting organizations in which it participates.
(April 4, 2007) Rambus appealed the Commission’s order to the U.S. Court of Appeals
for the District of Columbia Circuit, which heard oral arguments in February 2008.
South Carolina State Board of Dentistry
(September 11, 2007) The Commission settled a September 15 2003 administrative complaint
charging the South Carolina State Board of Dentistry with unlawfully restraining competition by
enacting a rule that required a dentist to examine every child before a dental hygienist could
provide preventive dental care – such as cleanings – in schools. The Board, which is a state
regulatory agency composed primarily of practicing dentists, claimed that its actions were
immune from antitrust challenge under the state action doctrine, but that argument was rejected
in a 2004 Commission opinion holding that the Board’s conduct was directly contrary to state
law. In 2006, the court of appeals dismissed the Board’s interlocutory petition for review for
lack of jurisdiction, and the Supreme Court denied certiorari in January 2007. The FTC’s 2007
consent requires the Board to publicly support the current state public health program that allows
hygienists to provide preventive dental care to schoolchildren, especially those from low-income
families.
Union Oil of California
(November 25, 2003): An administrative law judge dismissed a complaint in its entirety against
Union Oil of California that charged the company with committing fraud in connection with
regulatory proceedings before the California Air Resources Board regarding the development of
reformulated gasoline. The judge ruled much of Unocal’s conduct was permissible activity
under the Noerr-Pennington doctrine and that the resolution of the issues outlined in the
complaint would require an in depth analysis of patent law which he believed were not with the
jurisdiction of the Commission. In July 2004, the Commission reversed the judge’s ruling and
reinstated charges that Unocal illegally acquired monopoly power in the technology market for
producing a “summer-time” low-emissions gasoline mandated for sale and use by the California
Air Resources Board for use in the state for up to eight months of the year. While the case was
pending before the administrative law judge, a consent agreement was signed
B.
Court Decisions
PolyGram Holding, Inc. (The Three Tenors)
(July 24, 2003): The Commission upheld the ruling of an administrative law judge and
prohibited PolyGram from entering into any agreement with competitors to fix the prices or
22
restrict the advertising of products they have produced independently. The administrative
complaint, issued on July 30, 2001, generally known as The Three Tenors and involving
respondents PolyGram Holding, Inc.; Decca Music Group Limited; UMG Recordings Inc.; and
Universal Music & Video Distribution Corporation charged PolyGram with entering into an
illegal price fixing agreement not to advertise or discount earlier albums and video recordings of
concerts featuring the Three Tenors in an effort to promote the latest concert, thought to be less
appealing to the public. The Commission ordered the respondents to cease and desist from
entering into any combination, conspiracy, or agreement - with producers or sellers at wholesale
of audio or video products - to “fix, raise, or stabilize prices or price levels” in connection with
the sale in or into the United States of any audio or video product. In July 2005, the U.S. Court
of Appeals for the District of Columbia Circuit affirmed the Commission’s decision in Polygram
Holding Inc., validating the Commission’s approach to analyzing horizontal conduct among
competitors.
Schering-Plough Corporation
(March 8, 2005) The United States Court of Appeals for the Eleventh Circuit set aside and
vacated the Commission decision that found that Schering-Plough entered into agreements with
Upsher-Smith Laboratories, Inc. and American Home Products to delay the entry of generic
versions of Schering’s branded K-Dur 20, a prescribed potassium chloride supplement. The
Commission filed a petition for writ of certiorari with the U.S. Supreme Court in August 2005,
arguing that the lower court failed to recognize how some agreements limiting entry during the
term of a patent can still be improper; the decision jeopardizes particularly important consumer
interests; and the court of appeals misapplied the substantial evidence standard of review. The
Supreme Court denied the petition.
In the complaint dated March 30, 2001 the Commission alleged that Schering - Plough,
the manufacturer of K-Dur 20 - a prescribed potassium chloride, used to treat patients with low
blood potassium levels - entered into anticompetitive agreements with Upsher-Smith
Laboratories and American Home Products Corporation to delay their generic versions of the KDur 20 drug from entering the market. According to the charges, Schering-Plough paid UpsherSmith $60 million and paid American Home Products $15 million to keep the low-cost generic
version of the drug off the market. The charges against American Home Products were settled
by a consent agreement.
An initial decision filed July 2, 2002 dismissed all charges against Schering - Plough and
Upsher-Smith Laboratories. On December 8, 2003 the Commission reversed the administrative
law judge’s initial decision that had dismissed all charges. The Commission found that
Schering-Plough Corporation entered into agreements with Upsher-Smith Laboratories, Inc. and
American Home Products to delay the entry of generic versions of Schering’s branded K-Dur 20.
According to the opinion, the parties settled patent litigation with terms that included
unconditional payments by Schering in return for agreements to defer introduction of the generic
products. The Commission entered an order that would bar similar conduct in the future.
23
C.
Authorizations to Seek Preliminary/Permanent
Injunctions
Alpharma, Inc. and Perrigo Company
(August 11, 2004): The Commission authorized staff to file a complaint in federal district court
charging that Alpharma, Inc. and Perrigo Company drove up the prices for over-the-counter
store-brand children’s liquid ibuprofen through an agreement eliminating competition between
the two firms and allowing Perrigo to raise its prices creating higher profits to then be shared
between the firms. According to the complaint, while both Alpharma and Perrigo filed for U.S.
Food and Drug Administration approval to sell a generic version of children’s liquid Motrin,
Alpharma was eligible to sell its product at least six months before approval would be granted to
Perrigo. The two companies entered into an agreement not to compete whereby Perrigo would
sell the children’s liquid ibuprofen for seven years and Alpharma, while would not marketing a
competing product, would receive an up-front payment and a royalty on Perrigo’s sales of the
product. To settle the charges, Alpharma and Perrigo paid a total of $6.25 million in illegal
profits and agreed not to enter into agreements not to compete when one party to the agreement
is a first filer of an abbreviated new drug application.
Cephalon, Inc.
(February 13, 2008) The Commission filed a complaint in federal district court charging
Cephalon, Inc. with preventing competition to its branded drug Provigil. The conduct under
challenge includes paying four firms to refrain from selling generic versions of Provigil until
2012. Cephalon’s anticompetitive scheme, accoringto the Commission, denies patients access to
lower-cost, generic versions of Provigil and forces consumers and other purchasers to pay
hundreds of millions of dollars a year more for Provigil. According to the complaint, Cephalon
entered into agreements with four generic drug manufacturers that each planned to sell a generic
version of Provigil. Each of these companies had challenged the only remaining patent covering
Provigil, one relating to the size of particles used in the product. The complaint charges that
Cephalon was able to induce each of the generic companies to abandon its patent challenge and
agree to refrain from selling a generic version of Provigil until 2012 by agreeing to pay the
companies a total amount in excess of $200 million. In so doing, Cephalon achieved a result that
assertion of its patent rights alone could not.
Warner Chilcott
(January 8, 2008) The Commission settled with Barr Laboratories concluding its federal court
action challenging an agreement between Warner Chilcott and Barr in which, the Commission
alleged, Barr agreed not to sell a lower-priced generic substitute of Warner Chilcott’s branded
Ovcon 35, an oral contraceptive drug, for several years for $20 million.
On November 5, 2005 a complaint was filed in District Court for the District Columbia
seeking to put an end to an agreement between drug manufacturers Galen Chemicals Ltd. (now
known as Warner Chilcott) and Barr Laboratories that denies consumers the choice of a lowerpriced generic version of Warner Chilcott’s Ovcon® oral contraceptive. According to the FTC’s
complaint, Barr planned to launch a generic version of Ovcon as soon it received regulatory
approval from the Food and Drug Administration. Warner Chilcott expected to lose half its
Ovcon sales within the first year if Ovcon faced competition from a generic equivalent. Faced
with this prospect, instead of competing with Barr, Warner Chilcott entered into an agreement
24
with Barr, preventing entry of Barr’s generic Ovcon into the United States for five years. In
exchange for Barr’s promise not to compete, Warner Chilcott paid Barr $20 million.
In September 2006, under the threat of a preliminary injunction sought by the
Commission, Warner Chilcott waived the exclusionary provision in its agreement, and the next
day Barr announced its intention to start selling generic Ovcon in the United States. Under the
terms of the October 2006 order settling the Commission’s charges, Warner Chilcott agreed to
certain terms to protect generic entry into the market.
D.
Consent Orders
Advocate Health Partners
(Final Order February 9, 2007) The final consent order settles charges that the conduct of several
organizations representing more than 2,900 independent Chicago-area physicians for agreeing to
fix prices and for refusing to deal with certain health plans except on collectively determined
terms. The order will prohibit the respondents from engaging in such anticompetitive conduct in
the future.
Alabama Trucking Association, Inc.
(Final Order October 28, 2003) With an administrative complaint issued on July 8, 2003 the
Commission charged that the association of household goods movers engaged in the collective
filing of tariffs on behalf of its members who compete in the provision of moving services in the
state of Alabama. Under terms of a final consent order, Alabama Trucking Association, Inc.
agreed to stop filing tariffs containing collective intrastate rates and to void collectively filed
tariffs currently in effect in Alabama.
Austin Board of Realtors
(Final Order September 6, 2006): The Commission entered into a final consent order settling
charges against the Austin Board of Realtors (ABOR) for its practice of preventing consumers
with listing agreements for potentially low-cost, unbundled brokerage services from marketing
their listings on public real estate-related Internet sites. In settling the charges, ABOR is
prohibited from adopting or enforcing any rule that treats one type of real estate listing
agreement more advantageously than any other, or from interfering with its members ability to
enter into any lawful listing agreement with home sellers.
California Pacific Medical Group dba Brown and Toland Medical Group
(Final Order February 3, 2004): With an administrative complaint issued on July 8, 2003 the
Commission charged a San Francisco, California physicians’ organization with engaging in an
agreement under which its competing members agreed collectively on the price and other terms
on which they would enter into contracts with health plans or other third party payers. The
complaint also alleged that Brown and Toland directed its physicians to end their preexisting
contracts with payers and required its physician members to charge specified prices in all
Preferred Provider Organization contracts. A final consent order prohibits Brown and Toland
from negotiating with payers on behalf of physicians, refusing to deal with payers, and setting
terms for physicians to deal with payers, unless the physicians are clinically or financially
integrated.
25
Clark County, Washington Attorneys
(Final Order July 23, 2004): Private attorneys in Clark County, Washington who provide
criminal legal services for indigent defendants under a county contract settled charges that they
illegally entered into an agreement known as the “Indigent Defense Bar Consortium Contract” to
collectively demand higher fees for certain types of cases and refuse to accept specific additional
cases unless the Clark County complied with their demands. The county was forced to
substantially increase the reimbursement rate for each of the case categories specified in the
Consortium Contract. According to the Commission, the conduct of the attorneys was identical
to the boycott staged by criminal defense attorneys in Washington, DC which was ruled to be
price fixing by the U.S. Supreme Court in the matter of Superior Court Trial Lawyers
Association. Robert Lewis, James Sowder, Gerald Wear, and Joel R. Yoseph, the four attorneys
who led the activities and served as the representatives of the 43 attorneys who signed the
Consortium Contract, were named in the complaint and in the consent order.
Colegio de Optometras de Puerto Rico
(Final order September 11, 2007): The Commission charged in July 2007 a group of optometrists
in Puerto Rico with violating the FTC Act by orchestrating agreements among members of the
Colegio de Optometras to refuse, or threaten to refuse, to accept vision and health care contracts
except on collectively agreed-upon terms. Two leaders of the group were also charged with
facilitating the agreement by urging members not to participate in the vision network. The
Commission’s consent order settling these charges bars the group and the two leaders from
engaging in such conduct, while allowing them to undertake certain kinds of joint contracting
arrangements by which physician participants control costs and improve quality by managing the
provision of services. FTC staff worked with the Office of Monopolistic Affairs of Puerto
Rico’s Department of Justice on this case.
Evanston Northwestern Healthcare Corporation
(Final Order May 17, 2005): Under terms of a consent order, Evanston Northwestern Healthcare
Corporation agreed not to collectively negotiate fee-for-service contracts. The order settled
charges of one count of an administrative complaint issued February 10, 2004. The count
alleged that a physician group associated with a hospital negotiated prices for several hundred
independent physicians who were not financially or clinically integrated with the group.
Health Care Alliance of Laredo, L.C.,
(Final Order March 28, 2006): A physicians’ independent practice association in Texas agreed to
settle charges that it engaged in unlawful collective bargaining to set fees its members would
accept from health insurance plans and advised its members against dealing individually with
plans. The Commission charged that both practices resulted in higher medical costs for
consumers. The consent order settling the FTC’s charges will prohibit the IPA from engaging in
such anticompetitive conduct in the future.
Information and Real Estate Services, LLC.
(Final Order December 1, 2006): The Commission settled charges that Information and Real
Estate Services, LLC (IRES) adopted rules that withheld valuable benefits of the Multiple
Listing Services (MLSs) they control from consumers who chose to enter into non-traditional
26
listing contracts with real estate brokers. The consent order settling the FTC’s charges will
prohibit IRES from discriminating against non-traditional listing arrangements.
Memorial Hermann Health Network Providers
(Final Order January 18, 2004): Memorial Hermann Health Network Providers settled charges
that it negotiated fees and other services for medical care provided by its member physicians in
the Houston, Texas area in an effort to obtain higher fees and more advantageous terms.
According to the complaint these alleged price fixing practices increased costs for consumer,
employers, and health plans.
MiRealSource, Inc.
(Final Order March 23, 2007): The Commission filed a Part 3 administrative complaint
challenging a set of rules adopted by MiRealSource, Inc. to keep Exclusive Agency Listings
from being listed on its MLS, as well as other rules that restricted competition in real estate
brokerage services. The complaint alleges that the conduct was collusive and exclusionary,
because in agreeing to keep non-traditional listings off the MLS or from public Web sites, the
brokers enacting the rules were, in effect, agreeing among themselves to limit the manner in
which they compete with one another, and withholding valuable benefits of the MLS from real
estate brokers who did not go along. On February 5, 2007 the Commission approved a consent
order for public comment settling the complaint. Under the terms of the final consent order,
MiRealSource has agreed to abandon such collusive conduct and provide its services to all
member brokers representing potential home sellers, regardless of the type of listing contract that
they choose.
Missouri Board of Embalmers and Funeral Directors
(Proposed Consent Agreement Accepted for Public Comment on March 9, 2007): Under the
terms of the proposed consent order, the Missouri Board of Embalmers and Funeral Directors
(Board) agreed to settle charges that it deterred competitive entry in the retail sale of caskets by
adopting a rule that only licensed funeral directors could sell caskets to consumers on an at-need
basis. Under the proposed settlement, the Board must include in various forms of
communications to the publics that it is not necessary to obtain a license from the Board to offer
for retail sale caskets and other funeral merchandise to customers in Missouri.
Monmouth County Association of Realtors
(Final Order December 1, 2006): The Commission settled charges that Monmouth County
Association of Realtors (Monmouth) adopted rules that withheld valuable benefits of the
Multiple Listing Services (MLSs) they control from consumers who chose to enter into nontraditional listing contracts with real estate brokers. The consent order settling the FTC’s
charges will prohibit Monmouth from discriminating against non-traditional listing
arrangements.
Movers Conference of Mississippi, Inc.
(Final Order October 28, 2003): With an administrative complaint issued on July 8, 2003 the
Commission charged that the association composed of competing household goods movers filed
collective rates for intrastate moving services in the state of Mississippi. According to the
complaint, these activities were not protected under the state action doctrine and are not immune
27
from federal antitrust scrutiny. Under terms of a final consent order the Movers Conference
agreed to stop filing tariffs containing collective intrastate rates.
Motor Oil Importers of Puerto Rico
(Final Order August 28, 2008): The Commission charged that a motor oil lubricant importer
illegally conspired with its competitors to restrict the importation and sale of these products in
Puerto Rico, which resulted in higher prices paid by consumers. According to the FTC’s
complaint, during 2005 and 2006, American Petroleum joined with numerous others in the
Puerto Rico lubricants industry to lobby for the delay, modification, or repeal of Puerto Rico
Law 278, which imposes an environmental recovery fee of 50 cents per quart. With the effective
date of the law approaching, the importers adopted a strategy of refusing to import lubricants as a
means of forcing a change. The consent order settling the charges bars American Petroleum
from conspiring with its competitors to restrict output, refuse to deal, or boycott any lubricant
buyer or potential buyer.
Multiple Listing Service, Inc.
(Proposed Consent Agreement Accepted for Public Comment on December 12, 2007): The FTC
settled charges that Multiple Listing Service, Inc. (MLS), a group of real estate professionals
based in Milwaukee, Wisconsin, adopted rules that withheld valuable benefits of the multiple
listing service it controls from consumers who chose to enter into nontraditional listing contracts
with real estate brokers. The rules blocked less-than-full-service listings from being transmitted
by MLS to popular Internet web sites, but provided this important benefit for traditional forms of
listings. Under the terms of the December 2007 consent, MLS is barred from adopting or
enforcing any rule that treats one type of real estate listing agreement more advantageously than
any other, and from interfering with the ability of its members to enter into any kind of lawful
listing agreement with home sellers.
Negotiated Data Solutions, LLC
(Proposed Consent Agreement Accepted for Public Comment on January 23, 2008): The
Commission charged that Negotiated Data Solutions LLC (N-Data) violated Section 5 of the
FTC Act by engaging in unfair methods of competition. N-Data acquired patent rights originally
held by National Semiconductor Corp. which were included in an IEEE industry standard for
autonegotiation technology, which allows Ethernet devices made by different manufacturers to
work together. Ethernet is a computer networking standard that is used in nearly every computer
sold in the U.S. N-Data reneged on National Semiconductor’s commitment to charge a one-time
royalty of $1000 to manufacturers or sellers of products using the IEEE standard, and demanded
higher royalties from users. In a proposed consent agreement resolving the charges, the
Commission proposes to order N-Data to stop enforcing the patents at issue unless N-Data has
first offered a license under the original terms.
New Hampshire Motor Transport Association
(Final Order December 4, 2003): The New Hampshire Motor Transport Association settled
charges that it filed tariffs containing rules that called for automatic increases in intrastate rates.
In addition, the organization agreed to void its collectively filed tariffs current in effect in New
Hampshire.
28
New Century Health Quality Alliance, Inc.
(Final Order October 6, 2006): The Commission approved a final consent order settling
Commission charges alleging that two independent practice associations (IPAs) and 18 member
physician practices in the Kansas City, MO area, refused to deal with health care plans, except
on collectively agreed-upon prices and other terms.
New Millennium Orthopaedics
(Final Order June 13, 2005): The Commission settled charges with two small groups of
orthopaedic physicians in the Cincinnati area that had formed an independent practice
association that jointly negotiated contracts regarding the rates its physician members would
charge health plans and other payors for their services. In addition to the usual prohibitions on
joint negotiations, the Commission’s order disbanded the IPA and prohibited future collective
bargaining.
Northern New England Real Estate Network, Inc.
(Final Order December 1, 2006): The Commission settled charges that Northern New England
Real Estate Network, Inc. adopted rules that withheld valuable benefits of the Multiple Listing
Services (MLSs) they control from consumers who chose to enter into non-traditional listing
contracts with real estate brokers. The consent order settling the FTC’s charges will prohibit
Northern New England Real Estate Network, Inc. from discriminating against non-traditional
listing arrangements.
Partners Health Network, Inc.
(Final Order September 23, 2005): A physician-hospital organization operating in northwestern
South Carolina, agreed to settle charges that it orchestrated and carried out agreements among its
physician members to set the prices they would accept from health plans, and to refuse to deal
with health plans that did not agree to its collectively determined prices. The consent order
settling the FTC’s charges prohibits the PHO from collectively negotiating with health plans on
behalf of its physicians and from setting terms of dealing with purchasers.
Piedmont Health Alliance, Inc.
(Final Order October 1, 2004): With an administrative complaint issued on December 22, 2003
the Commission charged Piedmont Health Alliance, Inc. with collectively setting prices it
demanded for physician services with third party payers. According to the complaint, the
physician-hospital organization entered into signed agreements on behalf of its member
physicians to participate in all contracts negotiated and to accept the negotiated physician fees.
The complaint further alleges that these practices eliminated price competition among physicians
in the North Carolina counties of Alexander, Burke, Caldwell and Catawba. The complaint also
names ten individual physicians who participated in the alleged price fixing services. On August
10, 2004, the organization and physicians agreed to settle charges that they fixed prices for
medical services. A final consent order prohibited Piedmont Health Alliance, Inc. and the ten
physicians from entering into any such agreements with physicians in the area that negotiate fees
or terms of services with health insurance companies or other third party payers. Also refer to
settlement entered with Tenet Healthcare Corporation (Frye Regional Medical Center, Inc.).
29
Preferred Health Services, Inc.
(Final Order April 13, 2005): The order prohibits Preferred Health Services from orchestrating
collective agreements and other terms for physician services when negotiating with health
insurance plans and other third party payers. According to the complaint these agreements
among the physician-hospital organization of doctors and the Oconee Memorial Hospital in
northwestern South Carolina to collectively negotiate fees and terms of services could lead to
higher health care costs and limited physician access.
Puerto Rico Association of Endodontists, Corp.
(Final Order August 29, 2006): The Commission approved a final consent order settling charges
alleging that thirty competing association members acted unlawfully by agreeing to set the prices
they would charge dental insurance plans, and by refusing to deal with plans that would not
accept the collectively determined prices.
Realtors Association of Northeast Wisconsin, Inc.
(Final Order December 1, 2006): The Commission settled charges that Realtors Association of
Northeast Wisconsin, Inc. adopted rules that withheld valuable benefits of the Multiple Listing
Services (MLSs) they control from consumers who chose to enter into non-traditional listing
contracts with real estate brokers. The consent order settling the FTC’s charges will prohibit
Realtors Association of Northeast Wisconsin, Inc. from discriminating against non-traditional
listing arrangements.
San Juan IPA
(Final Order June 30, 2005): San Juan IPA, Inc., a physicians’ independent practice association
operating in northwestern New Mexico, agreed to settle Commission charges that it orchestrated
and carried out agreements among its member doctors to set the price that they would accept
from health plans, to bargain collectively to obtain the group’s desired price terms, and to refuse
to deal with health plans except on collectively determined price terms. According to the
complaint, the effect of this conduct was higher prices for medical services for the area’s
consumers. The consent order prohibits the association from collectively negotiating with health
plans on behalf of its physicians and from setting their terms of dealing with such purchasers.
This consent involves 120 physicians who make up about 80 percent of the doctors practicing
independently in the area of Farmington, New Mexico.
Southeastern New Mexico Physicians IPA
(Final Order August 6, 2004): A Roswell, New Mexico physicians’ association, Southeastern
New Mexico Physicians IPA, settled charges that it and two of its employees entered into
collective agreements among physician members on fees and refused to deal with health plans
that did not accept the collective agreed-upon terms. According to the complaint, these practices
increased the price of health care in the Roswell area. The consent order prohibits the IPA and
its employees named in the consent from orchestrating agreements between physicians to
negotiate with health insurance plans on behalf of any physician and deal or refuse to deal
individually with any third party payer.
30
South Georgia Health Partners, L.L.C.
(Final Order October 31, 2003): A Georgia physician-hospital organization and its other
associated physician groups settled charges that they entered into agreements to fix physician
and hospital prices and refused to deal with insurance companies, except on collectively agreedupon terms.
Surgical Specialists of Yakima
(Final Order November 11, 2003): The Surgical Specialists of Yakima, Cascade Surgical
Partners, Inc., P.S. and Yakima Surgical Associates, P.S. settled charges that they jointly entered
into agreements for their members to fix prices and terms for the provision of medical services
when dealing with health care insurers.
Tenet Healthcare Corporation
(Final Order January 29, 2004): A consent order prohibits Frye Regional Medical Center, Inc., an
acute care hospital in Hickory, North Carolina, and its parent company Tenet Healthcare
Corporation from entering into any agreement to negotiate fees on behalf of any physician
practicing in four North Carolina counties and from refusing to deal with insurance companies
and other payers. Also refer to related administrative complaint issued to Piedmont Health
Alliance. This settlement is the first case in which the Commission has named a hospital as a
participant in an alleged physician price-fixing conspiracy.
Union Oil Company of California
(Final Order August 2, 2005): With an administrative complaint issued on March 4, 2003 the
Commission charged that Union Oil Company of California (Unocal) made misleading
statements concerning its emissions results for the production of “summer-time” gasoline
mandated by the California Air Resources Board (CARB) for use March through October.
According to the complaint, Unocal lead producers of the CARB gasoline to believe that its
research was non-proprietary and in the public interest, while at the same time it failed to
disclose that it had patent pending claims on the research results with the U.S. Patent and
Trademark Office. As a result of the patent being allowed, Unocal is now in a position to
enforce its patent rights – requiring companies that produce the “summer-time” CARB gasoline
to pay substantial royalties to Unocal if they use the patented technology. An initial decision
dismissing the complaint was filed on February 17, 2004.
A consent order settled the Commission’s monopolization complaint against Unocal. Under the
terms of the settlement, Unocal will stop enforcing the relevant reformulated gasoline patents,
which the Commission alleged could have imposed additional costs of over $500 million per
year on California consumers. In addition, Unocal will release all relevant gasoline patents to the
public.
Valassis Communications, Inc.
(Final Order April 28, 2006): Valassis, a leading producer of free-standing newspaper inserts
(FSIs) in the United States, has settled charges that it attempted to collude with News America
Marketing, its only FSI rival, to eliminate competition between the two companies. Under the
consent order settling the FTC’s complaint, Valassis is barred from engaging in collusive
agreements with other FSI publishers or attempting to collude with its competitors.
31
Virginia Board of Funeral Directors and Embalmers
(Final Order October 1, 2004): The Virginia Board of Funeral Directors and Embalmers settled
charges that it prohibited Virginia funeral directors and service providers from engaging in
truthful advertising to notify consumers of prices and discounts for funeral products and services.
Under terms of the consent order, the Board is prohibited from engaging in such practices in the
future and is required to amend its regulation prohibiting Board licensees from advertising
funeral services including those services that can be contracted prior to the death of the person
whose funeral is being planned.
White Sands Health Care System, L.L.C.
(Final Order January 11, 2005): A consent order settled charges that the White Sands Health
Care System refused to deal with health care insurers that resisted the collectively negotiated
prices set by its member physicians and nurse anesthetists. The complaint alleged that these
practices increased costs for health care for consumers in the Alamogordo, New Mexico area.
White Sands, a physician-hospital organization, consists of Alamogordo Physicians, an
independent practice association; Gerald Champion Regional Medical Center, and 31 nonphysician health care providers, including all five nurse anesthetists in the area.
Williamsburg Area Association of Realtors, Inc.
(Final Order December 1, 2006): The Commission settled charges that Williamsburg Area
Association of Realtors, Inc. adopted rules that withheld valuable benefits of the Multiple Listing
Services (MLSs) they control from consumers who chose to enter into non-traditional listing
contracts with real estate brokers. The consent order settling the FTC’s charges will prohibit
Williamsburg Area Association of Realtors, Inc. from discriminating against non-traditional
listing arrangements.
E.
Administrative Complaints
MiRealSource, Inc.
(October 12, 2006): The Commission filed a Part 3 administrative complaint challenging a set of
rules adopted by MiRealSource, Inc. to keep Exclusive Agency Listings from being listed on its
MLS, as well as other rules that restricted competition in real estate brokerage services. The
complaint alleges that the conduct was collusive and exclusionary, because in agreeing to keep
non-traditional listings off the MLS or from public Web sites, the brokers enacting the rules
were, in effect, agreeing among themselves to limit the manner in which they compete with one
another, and withholding valuable benefits of the MLS from real estate brokers who did not go
along. On February 5, 2007 the Commission approved a consent order for public comment
settling the complaint. Under the terms of the proposed consent order, MiRealSource has agreed
to abandon such collusive conduct and provide its services to all member brokers representing
potential home sellers, regardless of the type of listing contract that they choose.
RealComp II Ltd.
(October 12, 2006): The Commission issued an administrative complaint charging Realcomp
with violating Section 5 of the FTC Act by prohibiting information on Exclusive Agency (EA)
Listings and other forms of nontraditional listings from being transmitted from the multiple
listing service (MLS) it maintains to public real estate web sites. The complaint further alleged
32
that the conduct was collusive and exclusionary, because the brokers enacting the rules were
essentially agreeing among themselves how to compete with one another, and were withholding
the valuable benefits of the MLS from nontraditional real estate brokers. Commission staff is
appealing the ALJ’s initial decision of December 13, 2007 dismissing the complaint, and the
Commission will hear arguments in the case in the Spring of 2008.
F.
Other
Public Documents/Policy Statements/Conferences
Enforcement Perspectives on the Noerr-Pennington Doctrine (November 2, 2006): The
report provides enforcement perspectives on the Noerr-Pennington doctrine, which precludes
enforcement of the antitrust laws against certain private acts that urge government action.
Commission Studies/Guidelines
Accounting for Laws That Apply Differently to the United States Postal Service and Its Private
Competitors A Report by the Federal Trade Commission (January 16, 2008): This report
identifies and quantifies – to the extent possible – the Postal Service’s economic burdens and
advantages that exist due to its status as a federal government entity, as well as those benefits
resulting from its postal and mailbox monopolies.
Federal Trade Commission Report On Spring/Summer 2006 Nationwide Gasoline Price
Increases (August 30, 2007): Report to President on Factors Explaining National Average
Gasoline Price Increases During Spring and Summer of 2006.
Broadband Connectivity Competition Policy, a Report by the Federal Trade Commission (June
27, 2007): The report identifies guiding principles that policy makers should consider in
evaluating proposed regulations or legislation relating to broadband Internet access and network
neutrality.
Competition in the Real Estate Brokerage Industry: A Report by the Federal Trade
Commission and the U.S. Department of Justice (May 8, 2007): This report informs consumers
and others involved in the industry about important competition issues involving residential real
estate, including the impact of the Internet, the competitive structure of the real estate brokerage
industry, and obstacles to a more competitive environment.
Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and
Competition: A Report Issued By the U.S. Department of Justice and the Federal Trade
Commission (April 17, 2007): This joint effort informs consumers, businesses, and intellectual
property rights holders about the agencies’ competition views with respect to a wide range of
activities involving intellectual property.
Agreements Filed With the Federal Trade Commission Under the Medicare Prescription
Drug, Improvement, and Modernization Act of 2003: Summary of Agreements Filed in Fiscal
Year 2006: A Report by the Bureau of Competition (January 17, 2007): Summary of
33
agreements filed with the Commission in fiscal year 2006 (ending September 30, 2006) by
generic and branded drug manufacturers.
Municipal Provision of Wireless Internet: A Report of the Staff of the Federal Trade
Commission (October 10, 2006): The report describes the various wireless Internet technologies
currently in use or under development, identifies a range of operating models that have been used
to provide or facilitate wireless Internet service, summarizes the major arguments for and against
municipal participation, and describes various types of legislative proposals related to municipal
Internet service.
Investigation of Gasoline Price Manipulation and Post-Katrina Gasoline Price Increases: A
Report by the Federal Trade Commission (May 22, 2006): The report details the results of an
intensive, Congressionally-mandated Commission investigation into whether gasoline prices
nationwide were “artificially manipulated by reducing refinery capacity or by any other form of
market manipulation or price gouging practices” and into gasoline pricing by refiners, large
wholesalers, and retailers in the aftermath of Hurricane Katrina.
Agreements Filed With the Federal Trade Commission Under the Medicare Prescription
Drug, Improvement, and Modernization Act of 2003: Summary of Agreements Filed in Fiscal
Year 2005: A Report by the Bureau of Competition (April 24, 2006): Summary of agreements
filed with the Commission in fiscal year 2006 (ending September 30, 2005) by generic and
branded drug manufacturers.
Agreements Filed with the Federal Trade Commission under the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003: Summary of Agreements Filed in FY 2004: A
Report by The Bureau of Competition (January 7, 2005): Information regarding the 22
agreements that were filed with the Commission in fiscal year 2004.
The Petroleum Industry: Mergers, Structural Change and Antitrust Enforcement: A Report of
the Staff of the Federal Trade Commission, Bureau of Economics (August 2004): The staff
report describes the Commission’s merger enforcement actions in petroleum-related markets
during the past 20 years; provides an overview of industry trends in production and pricing;
provides an analysis of merger activity for the period 1985 through 2001; and examines trends at
specific industry levels: crude oil production and reserves; bulk transport of crude oil; refining;
bulk transport of refined products; and product terminals and gasoline marketing.
Improving Health Care: A Dose of Competition: A Report by the Federal Trade Commission
and the Department of Justice (July 23, 2004): Joint report to inform consumers, businesses,
and policy-makers on a range of issues affecting the cost, quality, and accessibility of health
care.
Fulfilling the Original Vision: The FTC at 90 (April 2, 2004): Report highlights some of the
Commission’s accomplishments from the past year and outlines several goals to guide the
agency’s twin missions of competition and consumer protection.
34
Possible Anticompetitive Barriers to E-Commerce: Contact Lenses: A Report from the Staff of
the Federal Trade Commission (March 29, 2004): The staff report concludes that e-commerce
offers consumers greater choices and more convenience in the contact lens market.
Pharmaceutical Agreement Notification Filing Requirements (Effective January 7, 2004):
Agreements between Brand-name and generic pharmaceutical companies regarding the
manufacture, marketing, and sale of generic versions of brand-name drug products are required
to be filed with the Commission and the Department of Justice, pursuant to Section 1112 of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003.
Slotting Allowances in the Retail Grocery Industry: Selected Case Studies of Slotting
Allowances in Five Product Categories (November 14, 2003): Slotting allowances paid to
certain retailers in certain geographic areas for five product categories: fresh bread, hot dogs, ice
cream and frozen novelties, shelf-stable pasta, and shelf-stable salad dressing.
To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, A
Report by the Federal Trade Commission (October 2003): The report is the first of two reports
about how to maintain that balance. The report concludes that questionable patents are a
significant competitive concern and can harm innovation. The report makes recommendation to
reduce the number of questionable patents that are issued and upheld.
Advisory Opinions
Kaiser Foundation Health Plan, Inc. Staff letter concerning the applicability of the Non-Profit
Institutions Act to Kaiser’s planned purchase and use of discounted pharmaceuticals in providing
health care services to persons covered under health benefits plans offered by self-insured
employers.
Greater Rochester Independent Practice Association, Inc. Staff letter concerning a proposal by
a physician association to negotiate contracts with payers in connection with its integrated
services program (September 17, 2007).
MedSouth, Inc. Staff letter following up on the February 9, 2002 MedSouth, Inc. Staff Advisory
Opinion (June 18, 2007).
St. John's Health System. Staff letter concerning the provision of pharmaceuticals by St. John's
Regional Health Center, a non-profit hospital, to three hospital-owned pharmacy sites, under the
Non-Profit Institutions Act (September 13, 2006).
Alpena Public Schools. Staff letter concerning a program to transfer pharmaceuticals at cost
between a non-profit hospital and a non-profit public school system (June 16, 2006.)
Suburban Health Organization. Staff letter concerning the antitrust implications of a proposal
to undertake a program involving partial integration among eight independent Suburban Health
35
Organization member hospitals and the 192 primary care physicians that, in total, they employ
(March 28, 2006).
North Mississippi Health Services. Staff letter concerning the transfer of pharmaceuticals at
cost by non-profit hospital to patients of non-profit clinic and hospice (August 16, 2005).
Stevens Hospital, of Edmonds, Washington. Staff letter concerning the Applicability of the
Non-Profit Institutions Act Amendments to the Robinson-Patman Act to Stevens Proposed
Pricing of Pharmaceuticals (April 18, 2005).
Bristol-Myers Squibb. Staff advised Bristol-Myers Squibb that its proposed settlement with
Teva Pharmaceuticals USA, inc. does not raise issues under Section 5 of the Federal Trade
Commission Act. (May 2004)
Dunlap Memorial Hospital in Orville, Ohio. Staff concluded that Dunlap’s provision of
pharmaceuticals to the Viola Startzman Free Clinic falls within the scope of the Non-Profit
Institutions Act. (January 9, 2004)
Medical Group Management Association: Letter from Jeffrey W. Brennan to Gerald
Niederman. An association of medical practice administrators requested an opinion concerning
its proposal to conduct and publish the results of a survey of physician practices. (November 3,
2003)
Partlinx LLC. Letter advising that FTC staff does not presently intend to recommend law
enforcement action in connection with Partlinx’s proposed e-commerce joint venture. (October
10, 2003)
Advocacy Filings
Comment of the Federal trade Commission to the Standing Committee on Health, Education,
and Social Services of the state of Alaska’s House of Representatives concerning health care
competition, Alaska’s certificate of need (CON) laws, and House Bill 337 (H.B. 337), which
would modify or repeal certain aspects of the state’s CON requirements.
Comments of the Federal Trade Commission Staff to The Honorable William J. Seitz, Senator,
State of Ohio Senate, Regarding Ohio Executive Order 2007-23S, Establishing Collective
Bargaining for Home Health Care Workers (February 15, 2008)
Comments of the Federal Trade Commission Staff to the Puerto Rico House of Representatives
Regarding Senate Bill 2190 Concerning Health Care Collective Bargaining (February 1, 2008)
Brief Amicus Curiae Federal Trade Commission In Support of Appellants and Urging Reversal
In In re Ciprofloxacin Hydrochloride Antitrust Litigation: Arkansas Carpenters Health &
Welfare Fund, et al., Plaintiffs-Appellants, v. Bayer AG and Bayer Corp., Defendants-Appellees;
36
Hoechst Marion Roussel, Inc., et al., Defendants-Appellees; and Barr Laboratories, Inc.,
Defendant-Appellee (January 29, 2008)
Comments of the Federal Trade Commission and Department of Justice to the Supreme Court
of Hawaii Regarding Proposed Rules Governing the Practice of Law in Hawaii (January 29,
2008)
Comments of the Federal Trade Commission Staff before the Massachusetts Department of
Public Health Concerning Proposed Regulation of Limited Service Clinics (October 2, 2007)
Comments of the Federal Trade Commission Staff before the Federal Energy Regulatory
Commission Concerning Wholesale Competition in Regions with Organized Electric Markets
(September 18, 2007)
Comments of the Federal Trade Commission Staff to S. Guy deLaup, Esq., President, Louisiana
State Bar Association, Concerning Proposed Rules on Lawyer Advertising and Solicitation
(August 14, 2007)
Comments of the Federal Trade Commission Staff to Councilmember Mary M. Cheh
Concerning the District of Columbia Retail Station Act (June 12, 2007)
Joint Amicus Brief Filing with the U.S. Department of Justice In Re DDAVP Direct Purchaser
Antitrust Litigation Concerning Direct Purchaser Suits to Recover Certain Damages Resulting
from a Fraudulently Obtained Patent (May 8, 2007)
Comments of the Federal Trade Commission Staff to Mr. Carl E. Testo, Counsel, Rules
Committee of the Superior Court, Concerning Proposed Rules on the Definition of the Practice
of Law in Connecticut (May 2007)
Comments of the Federal Trade Commission Staff before the Federal Energy Regulatory
Commission Concerning Standards of Conduct for Transmission Providers (May 2007)
Comments of the Federal Trade Commission Staff to the Hon. Christopher R. Stone
Concerning Connecticut S.B. 1336 to Regulate Retail and Wholesale Petroleum Pricing (May 4,
2007)
Comments of the Federal Trade Commission and Department of Justice to the Hon. Helene E.
Weinstein Concerning New York A.B. A01837 to Establish that Certain Real Estate Services
May be Provided Only by Attorneys (April 30, 2007)
Comments of the Federal Trade Commission Staff to the Hon. Nelie Pou Concerning New
Jersey A.B. A-310 to Regulate Contractual Relationships Between Pharmacy Benefit Managers
and Health Benefit Plans (April 20, 2007)
37
Comments of the Federal Trade Commission Staff before the Florida Bar Concerning Proposed
Changes to the Florida Rules of Professional Conduct on Computer-Accessed Communications
(March 23, 2007)
Comments of the Federal Trade Commission Staff before the Louisiana State Bar Association
Rules of Professional Conduct Committee regarding proposed rules on lawyer advertising and
solicitation (March 14, 2007).
Joint Amicus Brief Filing with the U.S. Department of Justice in Leegin Creative Leather
Products, Inc., Petitioner, v. PSKS, Inc concerning vertical minimum resale price maintenance
Agreements in the Supreme Court of the United States, On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit) (Case No. 06-480) (January 22, 2007).
Joint Amicus Brief Filing with the U.S. Department of Justice in Credit Suisse Securities
(USA) LLC, et al. Petitioners, v. Glen Billing, et al., concerning certain antitrust immunity issues
(In the Supreme Court of the United States, On Writ of Certiorari to the United States Court of
Appeals for the Second Circuit) (Case No. 05-1157) (January 22, 2007).
Comments of the Federal Trade Commission Staff to The Honorable Terry G. Kilgore
Concerning Virginia House Bill No. 945 to regulate the contractual relationship between
pharmacy benefit managers and both health benefit plans and pharmacies (October 2, 2006).
Comments of the Federal Trade Commission Staff before the Office of Court Administration of
the New York State Unified Court System concerning proposed amendments to rules governing
attorney advertisement (September 14, 2006).
Joint Amicus Brief Filing with the U.S. Department of Justice in Weyerhauser Co. v. RossSimmons Hardwood Lumber Co., Inc. concerning predatory bidding in the Supreme Court of the
United States, On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
(Case No. 05-381) (August 25, 2006)
Joint Comments of the Federal Trade Commission and the Department of Justice to the
Honorable Helene E. Weinstein Regarding New York A.B. A05596 to establish that certain
services related to real estate transactions may be provided only by attorneys (June 21, 2006).
Joint Amicus Brief Filing with the U.S. Department of Justice in Latino Quimica-Amtex, S.A.
et al. v. Atofina S.A. et al. Concerning the D.C. Circuit’s Empagran Decision in the Second
Circuit (Case No.: 05-5754-cv) (June 1, 2006).
Joint Amicus Brief Filing with the U.S. Department of Justice in Weyerhauser Co. v. RossSimmons Hardwood Lumber Co., Inc. concerning predatory bidding in the Supreme Court (Case
No.: 05-381) (May 31, 2006).
Comments of the Federal Trade Commission Staff before the Professional Ethics Committee
of the State Bar of Texas concerning online attorney matching programs (May 26, 2006).
38
Comments of the Federal Trade Commission Staff to the Honorable Noble E. Ellington
Concerning Louisiana S.B. 642 to define more clearly the type of seller that must be licensed as
an auctioneer (May 26, 2006).
Comments of the Federal Trade Commission Staff before the Department of Commerce Patent
and Trademark Office in the matter of changes to practice for continuing applications, requests
for continued examination practice, and applications containing patentably indistinct claims
(May 3, 2006).
Comments of the Federal Trade Commission Staff to the Honorable Paula Dockery concerning
Florida Senate Bill 282, a bill to allow direct shipment of wine to Florida consumers from
manufacturers inside or outside Florida (April 10, 2006).
Modernization of Antitrust Law: Antitrust Modernization Commission (March 21, 2006)
Comments of the Federal Trade Commission Staff to The Honorable Eric D. Fingerhut
concerning Ohio S.B. 179 to allow direct shipment of wine to Ohio consumers (March 22, 2006).
Comments of Staff of the Federal Trade Commission Bureau of Economics to file a comment
with the Federal Communications Commission regarding the auction of advanced wireless
services licenses (March 10, 2006).
Comments of the Federal Trade Commission Staff before the New Jersey Supreme Court
Concerning Attorney Advertising (March 1, 2006).
Comment of the Federal Trade Commission to the Federal Energy Regulatory Commission
Concerning Market-Based Rates for Public Utilities (January 18, 2006).
Comments of Staff of the Federal Trade Commission to the Honorable Bill Seitz Concerning
Ohio H.B. 306 to Amend the Operation of Wine Wholesale Franchises (December 12, 2005).
Federal Trade Commission Civil Remedies: Antitrust Modernization Commission (December 1,
2005).
Statutory Immunities and Exemptions: Antitrust Modernization Commission (December 1,
2005).
The Hart-Scott-Rodino Second Request Process: Antitrust Modernization Commission
(November 17, 2005).
Treatment of Efficiencies in Merger Enforcement: Antitrust Modernization Commission
(November 17, 2005).
Patent Law Reform: Antitrust Modernization Commission (November 8, 2005).
39
Federal Antitrust Enforcement Institutions : Antitrust Modernization Commission (November
3, 2005).
Joint Comments of the Federal Trade Commission and the Department of Justice to The
Honorable Alan Sanborn Concerning Michigan H.B. 4849, Which Would Impose Minimum
Service Requirements on Real Estate Brokers (October 18, 2005)
State Action Doctrine: Antitrust Modernization Commission (September 29, 2005).
Comments of Staff of the Federal Trade Commission, Bureau of Economics, Bureau of
Competition and the Office of Policy Planning to the Honorable Wesley Chesbro Concerning the
Proposed California Franchise Act to Govern Contractual Relationships Between Beer
Manufacturers and Wholesalers (August 26, 2005).
Comment of the Federal Trade Commission to the Federal Energy Regulatory Commission
Concerning Information Requirements for Available Transfer Capability (August 23, 2005).
Comments of Staff of the Federal Trade Commission to the Federal Energy Regulatory
Commission concerning Long Term Transmission Rights in Markets Operated by Regional
Transmission Organizations and Independent System Operators (August 23, 2005).
Brief Amicus Curiae Illinois Tool Works, Inc. et al. v. Independent Ink, Inc. (Supreme Court)
(Case. No. 04-1329)) Supporting Petitioners on the Issue of Whether a Patent is Presumed to
Confer Market Power in a Tying Case (August 5, 2005).
Brief Amicus Curiae Texaco, Inc. v. Dagher et al. (Supreme Court (Case Nos. 04-805 and 04814)). Concerning Whether an Agreement on Pricing Between Joint Venture Owners is a Per se
Violation of the Sherman Act When the Owners do not Compete in those Products (May 31,
2005).
Joint Comments of the Federal Trade Commission and the Department of Justice to the
Honorable Matt Blunt Concerning Missouri H.B. 174 to Impose Minimum Service Requirements
on Real Estate Brokers (May 24, 2005).
Joint Comments of the Federal Trade Commission and the Department of Justice to the
Alabama Senate Concerning Alabama H.B. 156 to Impose Minimum Service Requirements on
Real Estate Brokers (May 12, 2005).
Joint Comments of the Federal Trade Commission and the Department of Justice before the
Texas Real Estate Commission Concerning Proposed Amendments to 22 Tex. Admin Code §
535.2 to Impose Minimum Service Requirements on Real Estate Brokers (April 20, 2005)
Comment of the Federal Trade Commission to the Food and Drug Administration Concerning
Response to Citizen Petition by IVAX Pharmaceuticals Relating to Generic Drug Application
(Apr. 2005).
40
Comments of Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics and the Office of Policy Planning regarding three bills that the Virginia Assembly
considered: HB 2518 - would loosen current restrictions on competition between commercial and
independent optometrists; and HB 160 and SB 272 - would further impair competition between
these groups of eye care professionals. (March 9, 2005)
Comments of Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics and the Office of Policy Planning to North Dakota State Senator Richard L. Brown
concerning HB 1332 which might have the unintended consequences of increasing the price of
pharmaceuticals within the state and ultimately decrease the number of North Dakotans with
insurance coverage for pharmaceuticals. (March 8, 2005)
Joint Amicus Brief Filing with the U.S. Department of Justice: Empagran, S.A. v. HoffmannLaRoche, Ltd., No. 01-7115 (D.C. Cir.). International cartels. (February 18, 2005)
Brief Amicus Curiae Teva Pharmaceuticals USA, Inc. v. Pfizer, Inc. Case No. 04-1186 (Fed.
Cir.) Teva, in an effort to market its generic version of Pfizer’s Zoloft drug, sued Pfizer
challenging the patent for Zoloft. (February 11, 2005)
Joint Comments of the Federal Trade Commission and the Department of Justice to Chief
Justice McFarland of the Kansas Supreme Court concerning the Unauthorized Practice of Law
Committee of the Kansas Bar Association’s proposal to define the practice of law. (February 4,
2005)
Joint Comments of the Federal Trade Commission and the Department of Justice urging the
Massachusetts Bar Association to narrow or reject a proposal that would reduce competition
between nonlawyers and lawyers to provide certain services. (December 16, 2004)
Joint Comments of the Federal Trade Commission and the Department of Justice to The
Honorable Paul Kujawski, Member of the Massachusetts House of Representatives, concerning
the adoption of HB 180, a bill that would enable nonlawyers to compete with lawyers to perform
certain real estate closing services. (October 12, 2004)
Comments of Staff of the Federal Trade Commission to California Assembly Member Greg
Aghazaian concerning a bill (AB 1960) that requires pharmacy benefit managers to disclose
certain information to purchasers of their services. (September 10, 2004)
Brief Amicus Curiae Cleveland Bar Association v. CompManagement, Inc. (Case No.: UPL
02-04) Matter on appeal from a decision rendered by Ohio’s UPL Board finding that
CompManagement, an actuarial firm, had engaged in the unauthorized practice of law through
its representation of employers in workers’ compensation matters before the Ohio Industrial
Commission. (August 5, 2004)
Joint Brief Amicus Curiae Federal Trade Commission and the Department of Justice Andrx
Pharmaceuticals, Inc. v. Kroger Company, et al. (U.S. Court of Appeals for the Sixth Circuit)
Private antitrust matter concerning an interim settlement of a pharmaceutical patent infringement
41
case, in which the alleged infringer agreed not to market its product while the infringement
litigation was pending. (July 16, 2004)
Comments of the Federal Trade Commission to the Federal Energy Regulatory Commission
concerning revisions to the conditions under which FERC will permit electric utilities to sell
wholesale power at market rather than regulated rates. (July 16, 2004)
Comments of the Federal Trade Commission to the Federal Energy Regulatory Commission
concerning FERC’s policies governing electric utility procurement of wholesale electric supply
from affiliated generators and through acquisition of affiliated, unregulated generation assets.
(July 14, 2004)
Comments of Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics and the Office of Policy Planning to Michigan House Representative Gene DeRosset
on Michigan’s proposed bill 4757, “Petroleum Marketing Stabilization Act”. (June 18, 2004)
Joint Brief Amicus Curiae Federal Trade Commission and the Department of Justice in
Jackson Tennessee Hospital Co., No. 04-5387 (6th Cir.) Brief contends that the district court
improperly concluded that Tennessee Hospital Co. and other defendants were exempt from
antitrust enforcement under the state action doctrine. (June 4, 2004)
Joint Brief Amicus Curiae Federal Trade Commission and the Department of Justice in
McMahon v. Advanced Title Services Company of West Virginia. The brief argues that
allowing nonlawyers to compete with lawyers in the provision of real estate settlement services,
including title searching, title reports, closings, and document deliveries, would benefit West
Virginia consumers in a variety of ways. (May 25, 2004)
Comments of the Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics and the Office of Policy Planning to Rhode Island Attorney General Patrick C. Lynch
and Deputy Senate Majority Leader Juan M. Pichardo on seven state bills that contain “freedom
of choice” and “any willing provider” provisions for pharmaceutical sales. (April 12, 2004)
Comments of the Staff of the Federal Trade Commission Bureaus of Competition, Consumer
Protection and Economics and the Office of Policy Planning provide comments on Maryland
House Bill 795 which would permit corporate ownership of funeral homes. (April 6, 2004)
Comments of the Staff of the Federal Trade Commission Bureaus of Competition,
Economics, Consumer Protection, the Northeast Regional Office and the Office of Policy
Planning provided comments on three bills that would allow out-of-state vendors to ship wine
directly to New York consumers if the vendors comply with certain regulatory requirements.
(March 30, 2004)
Comments of Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics and the Office of Policy Planning to Kansas State Senator Les Donovan regarding
Bill No. 2330 which would bar the “below-cost” sale of motor fuel. (March 16, 2004)
42
Comments of Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics, and the Office of Policy Planning. Comments to the Speaker Pro Tempore of the
Alabama State House of Representatives Concerning the Alabama Motor fuels Marketing Act.
(January 29, 2004)
Joint Comments of the Federal Trade Commission and the Department of Justice on a draft of
the proposed amendment to the Indiana Supreme Court Admissions & Discipline Rule regarding
Unauthorized Practice of Law to the Indiana State Bar Association. (October 10, 2003)
Comments of the Staff of the Federal Trade Commission Bureau of Competition, Bureau of
Economics, and the Office of Policy Planning. Analysis of Wisconsin’s Unfair Sales Act: Letter
to Wisconsin State Representative Shirley Krug. (October 1, 2003)
Workshops/Hearings/Conferences
Single-Firm Conduct
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. May 8, 2007: Conclusion
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. May 1, 2007: Section 2 Policy Issues
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. March 28, 2007: Remedies
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. March 7, 2007: Monopoly Power.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. February 9, 2007: Business Testimony.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. January 26, 2007: Business/Academic Testimony.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. January 10, 2007: Business Testimony.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. December 1, 2006: Misleading and Deceptive Conduct.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. November 17, 2006: Loyalty Discounts.
43
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. November 7, 2006: Exclusive Dealing.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. October 27, 2006: Tying.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. October 20, 2006: Tying, Exclusive Dealing, and Loyalty Discounts.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. September 18, 2006: Empirical Perspectives.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. September 6, 2006: International Issues.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. July 10, 2006: Refusals to Deal.
Hearings on Single-Firm Conduct sponsored by the Commission and the Department of
Justice. June 20, 2006: Predatory Pricing.
Healthcare
Roundtable on The Economics of the Pharmaceutical Industry (October 20, 2006)
This Roundtable brought together academic economists, government economists and industry
professionals to discuss a number of important topics including the economic impact of direct-toconsumer advertising, spillovers and mergers in pharmaceutical R&D, and the economic
incentives for new drug development.
Conference on Healthcare Information & Competition (April 16, 2004)
This quasi-academic conference, organized by Stanford health economist Dan Kessler, brought
together academics and health policy makers for one day to examine the production of and use of
health care market information by consumers and employers. It examined some effects of
competition in promoting or retarding information use. Aspects of health care quality were also
addressed. Seven papers were presented, and participation included government health care
experts and employers.
Hearings on Healthcare and Competition Law and Policy sponsored by the Commission and
the Department of Justice. September 24 - 26; and 30; October 1, 2003, Washington, DC.
• Physician Product and Market Definition
• Physician Information Sharing
• Physician IPAs - Patterns and Patterns of Integration - Messenger Model
• Physician Unionization; Group Purchasing Organizations
• International Perspectives on Health Care and Competition Law and Policy
• Medicare and Medicaid
44
• Remedies: Civil/Criminal
Intellectual Property and Patent Law
Ideals into Action: Implementing Reform of the Patent System (April 15 - 16, 2004) The
Commission , the National Academy of Sciences, and the Berkeley Center for Law and
Technology sponsored a conference to address patent reform and how it might be implemented.
Town Meetings on Patent System Reform Three meetings in San Jose, California, February
18, 2005; Chicago, Illinois on March 4, 2005; and Boston, Massachusetts on March 18, 2005 to
bring together government officials, business representatives, lawyers and other members of the
patent community to discuss significant recommendations for patent reform made by the
Commission, the National Academies’ Board on Science, Technology and Economic Policy, and
the American Intellectual Property Law Association.
Other
Unilateral Effects Analysis and Litigation Workshop (February 12, 2008)
The Federal Trade Commission hosted a public workshop on February 12, 2008, to examine the
application of unilateral effects theory to mergers of firms that sell competing, but differentiated
products. “Unilateral effects” as a formal theory of competitive harm was added to the joint
FTC/DOJ Horizontal Merger Guidelines in 1992.
Grocery Store Antitrust: Historical Retrospective & Current Developments (May 24, 2007)
This one-day conference looked at antitrust analysis of the grocery industry including both
historical analysis and analysis of current methods.
Energy Markets in the 21st Century: Competition Policy in Perspective (April 2007)
The three-day conference, "Energy Markets in the 21st Century: Competition Policy in
Perspective," brought together leading experts from the government, the energy industry,
consumer groups, and the academic community. The topics examined include the relationship
between market forces and government policy in energy markets, and the dependence of the U.S.
transportation sector on petroleum.
Broadband Connectivity Competition Policy (February 13-14, 2007)
The Federal Trade Commission held a public workshop on “Broadband Connectivity
Competition Policy” bringing together experts from business, government, and the technology
sector, consumer advocates, and academics to explore competition and consumer protection
issues relating to broadband Internet access, including so-called “network neutrality.”
Roundtable on the Economics of Internet Auctions (October 27, 2005)
The Bureau of Economics held a Roundtable on The Economics of Internet Auctions bringing
together academic economists, government economists and industry professionals to discuss
competition, network effects, fraud, lemons problems, inference, and demand estimation.
45
Competition Policy and the Real Estate Industry (October 25, 2005)
The Federal Trade Commission and the Department of Justice’s (DOJ) Antitrust Division hosted
a joint workshop covering new and innovative brokerage business models, multiple listing
services, and the implications of state-imposed minimum-service requirements.
Oil Industry Merger Effects (January 14, 2005)
The public conference discussed two recent studies that focused on the price effects of mergers
and concentration in the United States petroleum industry.
90th Anniversary Symposium (September 22 - 23, 2004)
The Federal Trade Commission honored the agency’s 90th anniversary and featured over 50
participants, current Commissioners and other agency officials, as well as prominent academics
and practitioners, many of whom are Federal Trade Commission alumnae.
IV. International Activities
Cooperation with antitrust agencies abroad is a key component of the FTC=s competition
enforcement agenda, resulting in closer collaboration on cross-border actions, and convergence
toward internationally consistent consumer welfare-based competition policies. Through the
Office of International Affairs, the FTC closely coordinates its efforts with antitrust agencies
abroad to resolve cases of mutual concern, resulting in more effective review and enforcement of
multijurisdictional mergers and suspected anticompetitive behavior. In the past year, the
Commission coordinated its international efforts in its merger enforcement program in several
cases including:
•
Google/DoubleClick. In December 2007, the Commission closed its investigation of
Google’s proposed $3.1 billion acquisition of internet advertising server DoubleClick
Inc., concluding that the acquisition was unlikely to substantially lessen competition.
While the Commission noted that the acquisition would not harm competition in the
relevant market, it noted its potential impact on consumer privacy and issued a set of
proposed behavioral marketing principles. FTC staff cooperated closely on the
transaction with agency staff in Australia, Canada and the EU.
•
Owens Corning/St. Gobain. The FTC worked closely with the European Commission,
Canada’s Competition Bureau, and the Mexican Federal Competition Commission to
resolve the proposed combination of Owens Corning and St. Gobain, which competed in
markets for certain types of glass fibre reinforcements used in the construction,
automotive, and electronics sectors. The FTC and EC both accepted consent agreements
with the parties in October 2007.
Through OIA, the FTC continues to build bilateral connections through ongoing
discussions and continuing case coordination both in the United States and abroad. OIA
regularly communicates with our sister law enforcement partners abroad, including Canada,
Mexico, the European Union (EU) and its members, Australia, Japan, and Korea on competition
cases and policy matters. FTC staff held formal bilateral consultations with the EU and Japan,
46
and Chairman Majoras met with her counterparts from Brazil, the Russian Federation, and the
United Kingdom. The FTC also continues to consult with colleagues from India and China, the
world’s two most populous nations, as they develop and implement their antitrust laws. FTC
senior staff, along with those from the DOJ Antitrust Division, visited both jurisdictions over the
past year and provided valuable advice to their competition officials, including through a fourday merger training program for their Chinese colleagues.
OIA also uses its strong bilateral relationships to help develop consistent international
competition policy with foreign agencies, many of which request Commission input on new
competition policy matters. For example, during the past year, the FTC consulted with the EC
regarding its review of its nonhorizontal merger guidelines and merger remedies guidelines, with
the Japan Fair Trade Commission on its revised intellectual property guidelines, with the Korea
Fair Trade Commission regarding proposed amendments to its enforcement decree concerning
excessive pricing, and with Canada’s Competition Policy Review Panel concerning the
relationship between competition and competitiveness. Through OIA, the FTC will continue to
share its expertise when requested with its foreign competition counterparts.
Multilateral competition organizations provide valuable opportunities to promote
international cooperation and for competition officials to share insights on law enforcement and
policy initiatives. The FTC participates actively in several such organizations, including the
International Competition Network (ICN), the Organization for Economic Cooperation and
Development (OECD), the United Nations Conference on Trade and Development (UNCTAD),
and the Asia-Pacific Economic Cooperation (APEC).
V. Competition Speeches
“Market Definition in Online Markets”, (February 1, 2008) Michael R. Baye, Director,
Bureau of Economics. “Merger Analysis in High Technology Markets”, George Mason
University School of Law
“The Supreme Court's Antitrust Future: New Directions or Revisiting Old Cases?”
(December 2007) Pamela Jones Harbour, Commissioner. “Antitrust Source”
"Critical Loss Analysis: A Merger Lawyer's View" (November 16, 2007) Jeffrey Schmidt,
Director, Bureau of Competition. “2007 ABA Section of Antitrust Law Fall Forum”,
Washington, D.C.
“Maintaining our Focus at the FTC: Recent Developments and Future Challenges in
Protecting Consumers and Competition”, (November 15, 2007) Deborah Platt Majoras,
Chairman. “Keynote Address, ABA Section of Antitrust Law 7th Annual Fall Forum”
47
“Discussion Questions on Standard Setting and Technology Pools” (November 15, 2007)
William Blumenthal, General Counsel. "Monopolization and Dominance: Legal Standards for
Single-Firm Conduct" at the ABA Antitrust Section Fall Forum, Washington
"Navigating the Merger Waters at the Federal Trade Commission: What Matters"
(November 2, 2007) Jeffrey Schmidt, Director, Bureau of Competition. “24th Annual Antitrust
and Consumer Protection Seminar, Washington State Bar Association”, Seattle, Washington
“The Common Law of Section 2: Is It Still Alive and Well?” (October 31, 2007) Thomas
Rosch, Commissioner. “George Mason Law Review 11th Annual Antitrust Symposium”,
Washington, D.C.
“The Role of Economists in Antitrust: Getting the Most from Your Economic Expert”,
(October 17, 2007) Michael R. Baye, Director, Bureau of Economics. “Economics and Federal
Civil Enforcement Committees of the American Bar Association's Antitrust Section Brownbag” ,
Kirkland and Ellis, Washington, DC
“Convergence, Conflict, and Comity: The Search for Coherence in International
Competition Policy” (September 27, 2007) Deborah Platt Majoras, Chairman. “34th Annual
Conference on International Antitrust Law & Policy” New York City
“The Challenge of Non-Horizontal Merger Enforcement” (September 27, 2007) Thomas
Rosch, Commissioner. “Fordham Competition Law Institute’s 34th Annual Conference on
International Antitrust Law & Policy”, New York City
"Clinical Integration in Antitrust: Prospects for the Future" (September 17, 2007) Thomas
Rosch, Commissioner. “American Health Lawyers Association, ABA Antitrust Section and
ABA Health Law Section, 2007 Antitrust in Health Care Conference”, Washington, D.C.
“I say Monopoly, You say Dominance: The Continuing Divide on the Treatment of
Dominant Firms, is it the Economics?” (September 8, 2007) Thomas Rosch, Commissioner.
“International Bar Association, Antitrust Section Conference”, Florence, Italy
“Addressing Dominance under China’s Anti-Monopoly Law” (July 21, 2007) William
Blumenthal, General Counsel. “Symposium on Abuse of Dominance: Theory and Practice” The
Competition Law Center of the University of International Business and Economics and the
State Administration for Industry and Commerce, Beijing, China
“China’s Anti-Monopoly Law” (July 11, 2007) William Blumenthal, General Counsel.
“Challenging the United States: Intellectual Property Issues in China” organized by the U.S.
Patent and Trademark Office, Alexandria, Virginia
"Has The Pendulum Swung Too Far? Some Reflections on U.S. and EC Jurisprudence"
(June 25, 2007) Thomas Rosch, Commissioner. “Bates White Fourth Annual Antitrust
Conference”, Washington, D.C.
48
The Competitive Implications of Generic Biologics (June 14, 2007) Pamela Jones Harbour,
Commissioner. “ABA Sections of Antitrust and Intellectual Property Law”, "Intellectual
Property Antitrust: Strategic Choices, Evolving Standards, and Practical Solutions”
"Vertical Restraints & Sherman Act § 2" (June 13, 2007) Thomas Rosch, Commissioner.
“The Conference on Current Topics in Antitrust Economics and Competition Policy”,
Washington, D.C.
Discussant Comments on Exploitative Abuses under Artic
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