Morgan Lewis on Competition
March 2005

In this Issue:

• New Hart-Scott-Rodino Rules Regarding Reporting Thresholds and Non-Corporate Entities Finalized:
  The Hart-Scott-Rodino Antitrust and Improvements Act of 1976 (“HSR Act”) and its corresponding regulations require parties to certain transactions to notify the federal antitrust agencies and to observe a waiting period before consummating the transaction. Two recent changes to this regime will affect the reporting obligations of companies.
• When is Enough, Enough? Searching for the Meaning of "Substantial Compliance":
  Any company that has been involved in an antitrust review of a proposed transaction is familiar with a “Second Request” and the term “substantial compliance.” And, while it remains unclear as to exactly what companies need to provide to the reviewing agency in order to comply with such a request, a case just filed illustrates that the Federal Trade Commission will not shy away from challenging a response it deems insufficient.
• FTC Rebuffed by Appellate Court:
  In an opinion sharply critical of the Federal Trade Commission, the Eleventh Circuit overturned a decision by the FTC that so-called “reverse payments” made by Schering-Plough Corporation to Upsher-Smith Laboratories, Inc. relating to drugs used to treat potassium deficiencies violate the federal antitrust laws.
• German Federal Supreme Court Reverses View on Scope of Geographic Markets:
  In a landmark decision issued about nine years ago, the Highest German Civil Court (Bundesgerichtshof) held that the geographic scope of any relevant market cannot be larger than Germany because the German Federal Cartel Office’s (FCO) jurisdiction was limited to Germany. In cases in which the geographic scope of the relevant market extended beyond Germany, the FCO was allowed to take proven competitive effects from outside of Germany into account when making its analysis. Nevertheless, the FCO’s subsequent analysis usually focused on the German effects only.
• Court Determines that DOJ Cannot Unilaterally Revoke Amnesty Deal:
  Does the Department of Justice (DOJ) have limitless power to revoke unilaterally an immunity agreement that it later finds objectionable? “No,” answered the court in Stolt-Nielsen S.A. v. United States, 2005 WL 78925 (E.D. Pa. Jan. 14, 2005).
• Antitrust Practice Partners Named to The Best Lawyers in America:
  Washington, D.C. partners Willard K. Tom and John H. Shenefield, and San Francisco partner George A. Cumming have been selected to appear in the 2005-2006 edition of The Best Lawyers in America®.
• Supreme Court Watch:
  Three cases with antitrust implications are on the Supreme Court’s calendar.
• Articles & Speaking Engagements
• Antitrust Practice Members to Appear at the Annual Spring Meeting of the ABA's Antitrust Section

For the full story, please view the PDF.