Antitrust Law Daily Wrap Up, WORTH NOTING—Other Antitrust and Trade Regulation developments, (Feb 14, 2025)

By WK Editorial Staff

A periodic roundup of other items of interest to the Antitrust and Trade Regulation community.

ANTITRUST—D. Kan.: The federal district court in Kansas City, Kansas, ruled on several motions to compel discovery responses filed by Teva Pharmaceutical Industries, Ltd., in a suit alleging it conspired to safeguard its prescription drug. The court also ruled in a separate order that Teva must produce all documents relating to public statements regarding Teva’s settlements of patent litigation related to the EpiPen, Nuvigil, or any other form of Armodafinil, whether or not actually made, including but not limited to drafts of such statements and/or Communications regarding such statements. A class of plaintiffs alleged that Teva Pharmaceuticals and several co-conspirators entered an unlawful reverse payment settlement and conspired to safeguard their monopoly on Nuvigil, a wakefulness drug with the generic name Armodafinil. The court ordered the plaintiffs to produce all nonprivileged documents, and log in a privilege log all responsive documents withheld as attorney-client privileged and/or protected by work product, related to the decisions to be Named Plaintiffs and all documents and communications concerning their investigation into all claims and received or reviewed while determining whether to take part in this action. Teva’ motion was also granted to the extent it requests an order compelling Plaintiffs to log all documents responsive to all RFPs to which they have asserted attorney-client privilege and/or work product objections, except documents exempt from logging pursuant to the provisions of the ESI Protocol (Burge v. Teva Pharmaceutical Industries, Ltd., No. 2:22-cv-02501-DDC-TJJ (D. Kan. Feb. 11, 2025)).

ANTITRUST—3rd Cir.: A petition for rehearing filed direct purchasers of mumps vaccines in a suit alleging that Merck & Co., Inc. engaged in a scheme to unlawfully raise the regulatory bar for competition by preserving false or misleading claims on the FDA-approved drug label was denied by the Third Circuit. The appellate court had held in October 2024 that Merck was entitled to summary judgment because Noerr-Pennington immunity shielded the company from liability (In Re: Merck Mumps Vaccine Antitrust Litigation, No. 23-3089 (3d Cir. Feb. 10, 2025)).

ANTITRUST NEWS: The American Antitrust Institute (AAI) has issued its 2024 Impact Report, highlighting its achievements and leadership in protecting and promoting competition for the benefit of American markets. In 2024, AAI’s work delivered tangible benefits for consumers, workers, and businesses through research, education, and advocacy that generated significant improvements in antitrust enforcement and policy outcomes.

ANTITRUST NEWS: Farm Action, self-described as a farmer-led advocacy organization dedicated to fighting the monopolization of the food and agriculture sector, has sent a letter to the leadership of the FTC and the Antitrust Division, urging them to investigate and take action against potential monopolization and anticompetitive coordination by dominant firms in the egg industry. They also urge the FTC to use its authority under Section 6(b) of the Federal Trade Commission Act to more broadly investigate concentration, price-setting systems, and production and marketing practices in the egg production industry and its surrounding supply chains.

ANTITRUST NEWS: The Justice Department’s Antitrust Division and the FBI jointly announced the launch of a new online portal for information on international fugitives who have been charged with antitrust offenses and other crimes affecting the competitive process. “Individuals charged with anticompetitive crimes should understand that the DOJ Antitrust Division and its law enforcement partners will take all available steps to ensure that they answer the charges in court,” said Director of Criminal Enforcement Emma Burnham of the Justice Department’s Antitrust Division. “Defendants should understand that the charges will not go away, and the Antitrust Division urges them to contact us to discuss resolution of the charges.”

The Antitrust Division works with the FBI and other law enforcement partners to investigate and prosecute companies and individuals whose anticompetitive conduct harms American consumers and the American economy, wherever those companies and individuals are located.

ANTITRUST NEWS: Sen. Chuck Grassley (R-Iowa), Chairman of the Senate Judiciary Committee and former Chairman of the Senate Finance Committee, and Sen. Maria Cantwell (D-Wash.), Ranking Member of the Senate Commerce Committee, are reintroducing two bipartisan bills to combat the high cost of prescription drugs and provide greater transparency of pharmacy benefit managers (PBMs). The Prescription Pricing for the People Act requires the Federal Trade Commission (FTC) to complete a 6(b) study examining the effects of consolidation on pricing in the PBM industry, as well as other potentially abusive behavior by PBMs. The bill instructs the FTC to provide policy recommendations to Congress to improve competition and protect consumers. The Pharmacy Benefit Manager (PBM) Transparency Act bans deceptive and unfair pricing schemes, prohibits arbitrary claw backs of payments made to pharmacies, and requires PBMs to report to the FTC on how much money they make through spread pricing and pharmacy fees.

ANTITRUST NEWS: The Australian Competition & Consumer Commission (ACCC) proposes to grant authorization to the Board of Airline Representatives of Australia Inc. to continue to collectively bargain and to make and give effect to arrangements for the acquisition of Essential Aviation Services from operators of international airports and providers of essential aviation services, and suppliers or potential suppliers of Australian Government-mandated security services that exhibit natural monopoly characteristics. The ACCC proposes to grant authorization for a period of 10 years and is now seeking submissions in response to the draft determination

ANTITRUST NEWS: Senator Mike Lee (R-UT) issued a statement upon taking the gavel as Chairman of the U.S. Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, which included in part: “I am honored to reclaim the gavel from my colleague Senator Klobuchar and resume my role as Chairman of the U.S. Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights for the 119th Congress. … As Chairman, I remain committed to holding Big Tech accountable for anticompetitive conduct and advancing critical legislation, such as the AMERICA Act, to break up monopoly power in the advertising technology sector and unlock competition. In addition to big tech—sectors such as healthcare, media, and airlines have seen increased consolidation and raise competitive concerns. I look forward to examining solutions to reinvigorate competition for the benefit of consumers.”

ACQUISITIONS & MERGERS NEWS: Clarke Edwards, the Acting Director of the FTC Office of Policy Planning has sent a letter to Indiana State Senator Ed Charbonneau, Chair, of the Senate Health & Provider Services Committee, regarding Indiana Senate Bill 119 (“SB119” or “Bill”), which would repeal the certificate of public advantage (“COPA”) statute concerning hospital mergers and is under consideration in that body. The letter responds to the Senator’s February 6, 2025, inquiry regarding the competition and consumer protection implications of SB119 and highlights the FTC’s prior work in this area that may be informative as the bill is considered.

ACQUISITIONS & MERGERS NEWS: QXO, Inc. announced it has obtained antitrust clearance in both the U.S. and Canada for its acquisition of Beacon Roofing Supply, Inc. The company confirmed that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act has expired and that it has received early termination of the waiting period from the Canadian Competition Bureau. QXO’s all-cash tender offer for all of Beacon’s outstanding common stock of $124.25 per share, which is higher than Beacon’s stock has ever traded, remains open until February 24. QXO is prepared to complete the acquisition shortly after the tender expires, subject to the terms of the offer. The transaction is not subject to any financing conditions or due diligence conditions.

CONSUMER PROTECTION NEWS: The Federal Trade Commission has postponed its “Attention Economy: Monopolizing Kids’ Time Online” workshop on digital platform design features aimed at “keeping kids, including kids, online longer and returning more frequently.” The workshop had been scheduled for Feb. 25. When a new date is chosen, the FTC will post that information to the workshop’s event webpage.

CONSUMER PROTECTION NEWS: The Federal Trade Commission has adjusted the maximum civil penalty dollar amounts for violations of 16 provisions of law the FTC enforces, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The Act directs agencies to implement annual inflation adjustments based on a prescribed formula. The new maximum civil penalty amounts became effective once they were published in the Federal Register on January 17, 2025. The maximum civil penalty amount has increased from $51,744 to $53,088 for violations of Sections 5(l), 5(m)(1)(A), and 5(m)(1)(B) of the FTC Act, Section 7A(g)(l) of the Clayton Act, and Section 525(b) of the Energy Policy and Conservation Act. It has increased from $680 to $698 for violations of Section 10 of the FTC Act. The maximum civil penalty amount has increased from $1,472,546 to $1,510,803 for violations of Section 814(a) of the Energy Independence and Security Act of 2007. The maximum civil penalty amounts for other law violations within the agency’s jurisdiction are listed in the Federal Register notice.

The Commission vote to publish the Federal Register notice amending Commission Rule 1.98 was 5-0.

PRIVACY NEWS: House Energy and Commerce Chairman Brett Guthrie (R., Ky.) and Vice Chairman John Joyce (R., Pa.) announced the establishment of an all-Republican working group to develop comprehensive data privacy legislation, which will be led by Rep. Joyce. In a joint statement, Reps. Guthrie and Joyce said, “We strongly believe that a national data privacy standard is necessary to protect Americans’ rights online and maintain our country’s global leadership in digital technologies, including artificial intelligence. That’s why we are creating this working group, to bring members and stakeholders together to explore a framework for legislation that can get across the finish line. The need for comprehensive data privacy is greater than ever, and we are hopeful that we can start building a strong coalition to address this important issue.”

Attorneys: Alison Elizabeth Chase (Keller Rohrback, LLP) for Dena Burge. Brent N. Coverdale (Scharnhorst Ast Kennard Griffin, PC) for Teva Pharmaceuticals Industries, Ltd. Lee Albert (Glancy Prongay & Murray LLP) for Chatom Primary Care PC. Kristina Alekseyeva (Hogan Lovells US) for Merck & Co Inc.

Companies: American Antitrust Institute; Farm Action; Teva Pharmaceuticals Industries, Ltd.; Chatom Primary Care PC; Merck & Co Inc.; QXO, Inc.; Beacon Roofing Supply, Inc.

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