Morgan Lewis on Competition
October 2004

In this Issue:

• FTC Consent Settlements Continue Close Scrutiny of Pharmaceutical Industry:
  Two recent FTC consent agreements – the first involving the pioneer manufacturer of a product designed to combat Break Through Cancer Pain ("BTCP") and the other concerning a maker of over-the-counter ("OTC") OTC children's liquid ibuprofen – demonstrate that the FTC continues to apply close scrutiny to pharmaceutical industry participants and to activities and practices within the industry.
• Monti Replaced by Neelie Smit-Kroes
• Prior Planning a Must for Recipients of State Aid:
  Firms that receive certain types of proscribed State aid face substantial issues in minimizing the risks and costs associated with such actions. Under article 87 of the Treaty of Rome, "any aid granted by a Member State or through State resources in any form whatsoever which distorts competition by favoring certain undertakings on the production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the Common Market."
• FTC and DOJ Issue Report on Health Care; FTC Reports on Petroleum Industry:
  On July 23, the FTC and DOJ issued a much anticipated report covering the dynamics of the health care sector of the economy. The report, entitled Improving Health Care: A Dose of Competition, which is the product of a two-year collaborative effort by the federal antitrust agencies, makes six recommendations designed to serve as "guideposts for policy makers who want to ensure access to quality care and help consumers make informed choices" according to Timothy Muris, the recently retired Chair of the FTC.
• Articles & Speaking Engagements
• FTC Reinstates Unocal Complaint:
  Over the last few years, the Federal Trade Commission has aggressively pursued patent owners that have allegedly concealed intellectual property from standards bodies in order to obtain increased market power by asserting a patent related to a standard.
• FTC Votes to Close BAT Investigation:
  The Federal Trade Commission has voted to close its investigation into the proposed merger between RJ Reynolds Tobacco Holdings, Inc. ("RJR") and British American Tobacco plc's U.S. subsidiary Brown & Williamson ("B&W"), the second and third largest American cigarette manufacturers.
• President Appoints Two to FTC; Names Chair of U.S. Sentencing Commission
• Coming Through the Back Door? Advanced Micro Systems Gains Access to Intel Documents:
  In an interesting procedural turn of events, the Supreme Court has ruled that a litigant before the European Commission ("EC") antitrust authority may use a little-used U.S. statute to seek the assistance of a U.S. district court to compel the production of information in a proceeding before the foreign tribunal. In Intel Corporation v. Advanced Micro Devices, Inc., the Supreme Court was called upon to interpret 28 U.S.C. §1782(a), a statute that Congress enacted to assist "foreign tribunals" in obtaining evidence in the United States.
• Morgan Lewis Partners and Associates Elected to ABA Antitrust Section Positions

For the full story, please view the PDF.