Antitrust Law Daily Wrap Up, WORTH NOTING—Other Antitrust and Trade Regulation developments, (Aug 16, 2024)

By WK Editorial Staff

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

ANTITRUST NEWS: The UK Competition and Markets Authority (CMA) has published its response to the Department for Transport consultation on reforming the airport slot allocation system. The CMA’s stance in favor of using market-based mechanisms to allocate slots is unchanged from its earlier 2018 advice and 2019 consultation response. Using market-based mechanisms helps ensure that scarce resources are allocated to whoever values them the highest. Market-based mechanisms also lower or remove barriers to entry for new airlines which supports competition, according to the CMA.

ACQUISITIONS & MERGERS NEWS: Because Illumina Inc. had completed the ordered divestment of GRAIL, Inc. and the transaction at issue was abandoned, the FTC dismissed the complaint challenging the acquisition. On March 31, 2023, the Commission unanimously found that the acquisition lessened competition. The Commission entered an order requiring Illumina to divest GRAIL. The Fifth Circuit rejected all but one aspect of Illumina’s petition for review and remanded to the Commission for further consideration of the sole remaining issue. Following the Fifth Circuit’s ruling and an adverse decision regarding the transaction by the European Commission. On June 3, 2024, Illumina’s Board of Directors approved a spin-off of GRAIL. The spinoff distribution of equity interests of GRAIL was completed on June 24, 2024, and GRAIL is now a public and independent company (In the Matter of Illumina, Inc., Dkt. No. 9401 Aug. 15, 2024).

ACQUISITIONS & MERGERS NEWS: The Australian Competition & Consumer Commission (ACCC) announced that it will not oppose the acquisition of Credit Data Solutions Pty. Ltd. (illion) by Experian Australia Credit Services Pty. Ltd. (Experian). Experian and illion both supply consumer credit reporting services in Australia, as well as other services, including credit decisioning software solutions, marketing services, categorization solutions and identity verification services. “While the proposed merger is between two of the three consumer credit bureau[s], our investigations indicate that Experian and illion provide only a weak competitive constraint against the market leader Equifax and this is unlikely to change if the merger does not go ahead. This lack of competitive constraint is a result of factors particular to consumer credit reporting and to the entrenched position of Equifax,” ACCC Commissioner Liza Carver said.

ADVERTISING—M.D. Tenn.: A motion to dismiss Tennessee Consumer Protection Act claims alleging that DCA Pharmacy falsely advertised its products as being FDA approved and containing certain ingredients was dismissed on procedural grounds by the federal district court in Nashville, Tennessee. Novo Nordisk, Inc. is the only company approved by the FDA to produce medicine containing the molecule “semaglutide,” the primary ingredient for Wegovy®, Ozempic®, and Rybelsus®. DCA allegedly “markets and sells to patients certain drug products that purport to contain ‘semaglutide’ and are not FDA approved.” The court found that Novo had standing to assert the claims, and that DCA’s argument that the claims were preempted by the Food, Drug, and Cosmetics Act was procedurally improper. Novo argued, and the court agreed, that the motion to dismiss was barred under Rule 12(g)(2), which prohibited DCA from raising its preemption argument for the first time now because DCA could have raised that argument in its prior (and now voluntarily withdrawn) motion to dismiss (Novo Nordisk, Inc. v. DCA Pharmacy, No. 3:23-cv-00668 (M.D. Tenn. Aug. 15, 2024)).

AGENCY NEWS: Federal Trade Commission headquarters employees are being allowed to work remotely full time following the discovery of Legionella bacteria, which causes Legionnaires’ disease, at its headquarters. The “FTC has suspended in-office requirements and will re-evaluate the situation following the conclusion of testing on August 30. Medical professionals have advised us that the risk of infection is low. So far no one has reported an infection,” according to an FTC official. A GSA spokesperson said the bacteria was found at the FTC headquarters during baseline water testing being conducted in more than 1,300 GSA-controlled and federally owned facilities and 6,100 leased spaces.

CONSUMER PROTECTION NEWS: The FTC’s final rule for the Horseracing Integrity and Safety Authority (the “Authority”) has been published in the Federal Register. The changes concerned non-budgetary elements of the operation of the Authority. The new rule was designed to promote transparency and accountability in the operations of the Authority. The effective date is September 16, 2024.

INDUSTRY NEWS: Cornerstone Research crowed that 11 of its antitrust and competition economists have been appointed to leadership roles in the ABA Antitrust Law Section. Notably, Joanna Tsai of Washington, DC, was elected a member of the Council in the Antitrust Section. Newly appointed and continuing leadership roles for the 2024-2025 bar year are: Vildan Altuglu of New York as Vice Chair of the Privacy and Information Security Committee; Gabriela Antonie of Chicago as Vice Chair of the Insurance and Financial Services Committee; Ceren Canal Aruoba of Washington, DC, as Vice Chair of the Advertising Disputes and Litigation Committee; Laurien Gilbert of Washington, DC, as Vice Chair of the Unilateral Conduct Committee; Nathan Hipsman of Washington, DC, as Vice Chair of the Pricing Conduct Committee; Avigail Kifer of New York as Vice Chair of the Technology Committee; and Craig Malam of San Francisco as Vice Chair of the Mergers & Acquisitions Committee. Additionally, three emerging leaders were selected as Young Economist Representatives (YERs): Fang Guo of Boston as a YER for Antitrust Source; Kate Maxwell Koegel of Chicago as a YER for the Mergers & Acquisitions Committee; and Ildikó Magyari of New York as a YER for the International Committee.

Cornerstone Research also announced that Elisa Mariscal has joined the firm’s London office as a principal. Mariscal has over twenty years of experience consulting on competition policy, antitrust and merger review matters in North America, Central and South America, and Europe. Mariscal’s move to Cornerstone Research follows that of Tuba Toru Delibasi, who recently joined the firm as a senior manager. Delibasi brings significant expertise in antitrust and competition, mergers and acquisitions (M&A), damages calculations and transportation issues.

STATE UNFAIR TRADE PRACTICES NEWS: Legislation was introduced in the Illinois legislature on August 12 (House Bill 5871) that would make it an unlawful practice within the meaning of the Consumer Fraud and Deceptive Business Practices Act to use an "algorithmic device" to set the amount of rent to be charged to a tenant for the occupancy of a residential premises.

Attorneys: Amee M. Frodle (Covington & Burling LLP) for Novo Nordisk Inc. Barak Bacharach (Barton LLP) for DCA Pharmacy.

Companies: Novo Nordisk Inc.; DCA Pharmacy; Cornerstone Research; Credit Data Solutions Pty. Ltd.; Experian Australia Credit Services Pty. Ltd.

News: AcquisitionsMergers Antitrust Advertising ConsumerProtection StateUnfairTradePractices TennesseeNews FederalTradeCommissionNews