Corporations, Securities, & Antitrust Practice Group Podcast
Some antitrust lawyers often say the federal government’s decisions about which mergers to challenge, which monopolists to rein in, and which price-fixers to send to jail are relatively consistent regardless of who occupies the White House. But has federal antitrust enforcement really been entirely apolitical, based on economics, and divorced from other issues such as trade, job creation, and national security? Should it be? A panel of distinguished practitioners and former top government officials from both parties discussed these issues in our Teleforum, which was especially timely given calls by Senate Democrats for increased antitrust enforcement as part of “A Better Deal” and the increasing use of competition law by foreign governments against U.S. companies.
Corporations, Securities & Antitrust Practice Group Podcast
- Jon Leibowitz, Partner, Davis Polk & Wardwell LLP, and Former Chair, Federal Trade Commission
- William E. Kovacic, Global Competition Professor of Law and Policy & Director, Competition Law Center, The George Washington University Law School, and Former Chair, Federal Trade Commission
- Seth Bloom, President & Founder, Bloom Strategic Counsel PLLC, and Former General Counsel, U.S. Senate Judiciary Committee Antitrust Subcommittee
- Tad Lipsky, Former Senior Federal Trade Commission, U.S. Justice Department Antitrust Division Official, and Retired Partner, Latham & Watkins
- Moderator: Richard M. Steuer, Senior Counsel, Mayer Brown LLP, and Former Chair, American Bar Association Antitrust Section
Michael A. Carrier September 14, 2017
From Martin Shkreli to the Epipen, decisions about pharmaceutical pricing and distribution have been very much in the news of late. Much of the discussion centers on whether or not it is immoral to charge high prices. The question remains, however, about whether those business practices raise antitrust concerns. Can a high price in and of itself violate antitrust laws? What about policies that limit the channels through which a particular product is distributed? Professor Michael Carrier of Rutgers Law School analyzed these questions, noting the arguments both for and against a finding of antitrust liability, as well as discussing the particular circumstances that have raised a red flag from an antitrust perspective in some of these recent cases.
Intellectual Property Law Practice Group Podcast
- Prof. Michael A. Carrier, Distinguished Professor of Law, Rutgers Law School
Recent developments in US patent law, particularly the Americans Invents Act (AIA) and the Supreme Court’s jurisprudence on patent-eligible subject matter, have raised questions of whether, and to what extent, the Constitutional directive to promote technological innovation has been undermined or frustrated. The panel discussed whether the U.S. is shifting from a view of patents as private property, to one of public rights, and, if so, whether concepts from antitrust law will begin to color, if not dominate, patent enforcement jurisprudence. The practical implications of a public rights view of patents and the imposition of antitrust issues on the enforcement of patent rights were discussed as well.
SCOTUScast 8-18-17 featuring Janet Galeria
- Mr. Philip Johnson, Senior Vice President, Intellectual Property Strategy & Policy, Johnson & Johnson (ret).
- Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law
- Mr. Robert G. Sterne, Director, Sterne Kessler Goldstein Fox
- Moderator: Mr. Howard J. Klein, Attorney, Klein O'Neill & Singh LLP
Janet Galeria August 18, 2017
On June 5, 2017, the Supreme Court decided Kokesh v. Securities and Exchange Commission. In 2009, the Securities and Exchange Commission (SEC) alleged that Charles Kokesh had violated various securities laws by concealing the misappropriation of roughly $35 million in various development ventures dating back as far as 1995. Since the 1970s, the SEC has ordered disgorgement in addition to monetary civil penalties in its enforcement proceedings. In effect, the violator must not only pay monetary civil penalties, but also “disgorge” the profit he or she gained by the unlawful action. Under 28 U. S. C. §2462, however, a five-year limitations period applies to “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture” when the SEC seeks monetary civil penalties. In Kokesh’s case, the District Court concluded that the five-year limitations period did not apply to disgorgement. The U.S. Court of Appeals for the Tenth Circuit affirmed, holding that disgorgement was neither a penalty nor a forfeiture within the meaning of section 2462. As a result Kokesh could be required to disgorge the full $35 million, with interest.
By a vote of 9-0, the Supreme Court reversed the judgment of the Tenth Circuit. In an opinion delivered by Justice Sotomayor, a unanimous Court held that disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under section 2462. Thus, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued.
And now, to discuss the case, we have Janet Galeria, who is Senior Counsel for Litigation for the US Chamber Litigation Center at the US Chamber of Commerce. Intellectual Property Law Practice Group Podcast
The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something.
The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition? Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively? These and other questions were addressed.
- Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission
- Mr. Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP