Antitrust and Unfair Competition Law

Competition: Fall 2015, Vol 24, No. 2


Heather S. Tewksbury

Wilmer Cutler Pickering Hale & Dorr LLP

Palo Alto, CA

Dynamically Developing Law & Policy—In California & Beyond.

We start off this issue of Competition with a mini-symposium on the recent In re Cipro Cases I & II. Starting with an analysis by Jordan Elias where he argues that Cipro does what Actavis did not by laying out an authoritative foundation for a rule of reason with "bite." Dylan Carson and Avril Love also address Cipro by considering one of the chief challenges created by the decision with respect to the necessity, but the likely inability, of state courts to determine patent validity. Steven Perry and Sean Howell take a different approach to their analysis by examining the reach of Edwards v. Arthur Andersen LLP in light of Cipro.

We next have an analysis by Kenneth Field and Douglas Litvack of health care mergers in the era of payment reform. In keeping with our health care theme, David Gringer examines the impact of the Supreme Court’s newly formulated "active market participant" test for state licensing boards in the wake of the North Carolina State Board of Dental Examiners case. Rounding out this area is an insightful article by James Mulcahy and Filemon Carrillo about the Colgate doctrine and how it may apply to the disposable contact lens antitrust litigation.

Jumping from health care to technology is an article by Ryan McCauley, who takes on the Second Circuit’s decision in the Apple e-books case. And Alexandra McDonald, Jason McDonell, and Caroline Mitchell provide an overview of the legal landscape regulating mobile app development and explain how the law and the regulators are working to bring order to the "wild west" of this new world.

David Meyer takes us back to the future with his article that marks the 800th anniversary of the Magna Carta and presents the observation that the Supreme Court has referred to the Magna Carta in more than 200 opinions and has regularly invoked it in deciding antitrust cases. Bringing us back to the fundamental realization of the importance of the antitrust laws is Peter Huston observing that federal antitrust cases have grown increasingly complex, and that exposure to antitrust concepts likely makes certain courts more efficient, and possibly better, at deciding these cases. His article provides a nice platform for Joshua Stokes and Jordan Ludwig’s circuit-by-circuit analysis of the standards for pleading an antitrust conspiracy under Twombly and their conclusion that these standards remain in flux. Lee Berger and Sophie Sung complete this robust discussion on history and procedure with an analysis of the extraterritorial reach of the antitrust laws.

The issue concludes with a piece I drafted with my colleagues Ryan Tansey and Alicia Berenyi where we discuss antitrust compliance programs and the Antitrust Division’s recent steps toward incentivizing corporate compliance.

I would like to thank our authors and editors for all of their efforts in creating a fascinating edition of Competition. And on behalf of the Executive Committee, we would especially like to thank our Section Chair, Tom Dahdouh, for his incredible leadership over the past year!

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