In the Matter of Nantucket Ass’n of Real Estate Brokers (Assurance of Voluntary Discontinuance)
Massachusetts attorney general alleged that the membership requirements for the Nantucket Association of Real Estate Brokers, Inc. (“NAREB”) unfairly excluded competitors from the Nantucket real estate brokerage market. The AG’s Office alleged that some of the requirements for brokers, including having a physical office on the island, a community involvement requirement (which the attorney general characterized as potentially pretextual) and high initiation fees, excluded competitors from the Nantucket real estate brokerage market. The attorney general alleged that NAREB controlled a multiple listing service that lists the vast majority of real estate listings on Nantucket. Without
this listing service, to which full members of NAREB have access, a broker was effectively excluded from competing. The agreement with NAREBrequired NAREB to allow brokers without a physical office on Nantucket to join the association if certain requirements regarding showing properties are met. NAREB also reduced the initiation fee for new members from $5,000 to $500, and eliminated the community involvement requirement for membership. In addition, NAREB paid $5000 in costs of the investigation.
State of Wisconsin et al. v. Indivior, No. 16-5073 (E.D. Pa. Sept. 22,2016)
Plaintiff states alleged that the makers of Suboxone, a drug used to treat opioid addiction, engaged in a scheme to block generic competitors and raise prices. Specifically, they are conspiring to wtich Suboxone from a tablet version to a flim in order to prevent or delay generic entry. The states allege that the manufacturers engaged in “product hopping” in which a company makes slight changes to its product to extend patent protections and prvent generic alternatives. The complaint was filed under seal.
In the Matter of NFL Ticketing Investigation, Assurance No. 16-181(NY Attorney General Antitrust Bureau (Nov. 15, 2016)
Plaintiff states entered into a settlement agreement with the National Football League under which the NFL would discontinue its league-wide mandatory price floor (no tickets could be sold on the NFL secondary market platform for a price less than a season ticket holder’s price) and would not direct or require ticketing practices designed to preclude fans from using competing ticket exchanges.
Connecticut et al. v. Teva Pharmaceuticals et al. Civ. Action No. (D.Conn. Dec. 15, 2016)
Twenty states filed a federal lawsuit against six generic drug manufacturers, alleging that they entered into long-running and well coordinated illegal conspiracies in order to unreasonably restrain trade, artificially inflate and manipulate prices and reduce competition in the United States for two drugs: doxycycline hyclate delayed release, an antibiotic, and glyburide, an oral diabetes medication. The lawsuit was filed under seal to avoid compromising a continuing investigation. In the complaint, the states allege that the misconduct was conceived and carried out by senior drug company executives and their marketing and sales executives. The complaint further alleges that the defendants routinely coordinated their schemes through direct interaction with their competitors at industry trade shows, customer conferences and other events, as well as through direct email, phone and text message communications. The states further allege that the drug companies knew that their conduct was illegal and made efforts to avoid communicating with each other in writing or, in some instances, to delete written communications after becoming aware of the investigation. The states allege the anticompetitive conduct, including price-fixing and price maintenance, market allocation and other anticompetitive acts, caused significant, harmful and continuing effects in the country’s healthcare system. The states sought an injunction to prevent the companies from engaging in illegal, anticompetitive behavior and also sought equitable relief, including disgorgement. An additional 20 states joined the complaint in March 2017.
New York et al. v. Cephalon, No. 2:16-cv-04234 (E.D. Pa. Aug. 4, 2016)
In May 2015, the FTC settled a “pay-for-delay” suit against Cephalon for injunctive relief and $1.2 billion, which was paid into an escrow account. The FTC settlement allowed for those escrow funds to be distributed for settlement of certain related cases and government investigations. In August 2016, forty-eight states filed suit in the Eastern District of Pennsylvania against Cephalon alleging anticompetitive conduct by Cephalon to protect the profits it earned from having a patent-protected monopoly on the sale of its landmark drug, Provigil. According to the complaint, Cephalon’s conduct delayed generic versions of Provigil from entering the market for several years. The complaint alleged that as patent and regulatory barriers that prevented generic competition to Provigil neared expiration, Cephalon intentionally defrauded the Patent and Trademark Office to secure an additional patent, which a court subsequently deemed invalid and unenforceable. Before it was declared invalid, Cephalon was able to use the patent to delay generic competition for nearly six additional years by filing patent infringement lawsuits. Cephalon settled those lawsuits by paying competitors to delay sale of their generic versions of Provigil until at least April 2012. Consumers, states, and others paid millions more for Provigil than they would have had generic versions of the drug launched by early 2006, as expected. A settlement was filed with the complaint, which includes $35 million for distribution to consumers who bought Provigil.
Massachusetts et al. v. Koninklijke Ahold N.V., No. 1:16-cv-01412 (D.D.C., July 25, 2016)
Plaintiff states and FTC filed suit challenging the merger of Ahold and Delhaize, supermarket chains operating in the United States as Stop & Shop and Hannafords. According to the complaint, supermarkets operated by Ahold and Delhaize compete closely for shoppers based on price, format, service, product offerings, promotional activity, and location. Without a remedy, the merger would eliminate direct supermarket competition to the detriment of consumers in these local markets. As a result, the merger would increase the likelihood that the combined company could unilaterally exercise market power, and that the remaining competitors could coordinate their behavior to raise prices. the parties agreed to divest 76 supermarkets in the plaintiff states. The settlement also required prior notification of future supermarket purchases and $300,000 in attorneys fees and costs.
Florida et al. v. Dollar Tree, Inc., No. 1:15-cv-01052 (D.D.C. July 2, 2015)
Eighteen plaintiff states and the FTC challenged the merger of Dollar Tree, the largest chain of “dollar” stores (deep discount stores) and Family Dollar Stores, the nation’s third largest dollar store chain. The complaint claimed the proposed acquisition would substantially lessen competition in numerous markets by: (1) eliminating direct and substantial competition between Dollar Tree and Family Dollar; and (2) increasing the likelihood that Dollar Tree will unilaterally exercise market power. This, according to the complaint, would violate Section 7 of the Clayton Act and each state’s applicable antitrust and consumer protection laws. The states sought a permanent injunction to prevent the merger, along with costs and attorney fees. The parties reached a settlement under which 330 stores in the 18 states would be divested to Sycamore partners and run as a new dollar store chain, Dollar Express. The agreement also required the defendants to report future acquisitions in any of the affected markets and to pay over $865,000 to reimburse the costs and fees of the plaintiff states.
Massachusetts v. Partners Healthcare System Inc. et al., no. 14-2033 (Mass. Super. Ct. June 24 2014)
State challenged by acquisition by Partners of South Shore, alleging that it would substantially lessen competition in portions of Eastern Massachusetts for the provision of general acute care inpatient health services in violation of state law. After extensive hearings, the Attorney General proposed a settlement. The court permitted extensive public comment and the settlement was ultimately rejected. The parties abandoned the transaction.
Maryland et al. v. Perrigo Company, No. 1:04CV01398 (D.D.C. Aug. 17, 2004)
The FTC and states alleged that the companies had entered into a “pay-for-delay” arrangement, whereby Perrigo paid Alpharma to withdraw its generic version from the market for Children’t ibuprofen.According to the complaint, in June 1998, Perrigo and Alpharma signed an agreement allocating to Perrigo the sale of OTC children’s liquid ibuprofen for seven years. In exchange for agreeing not to compete, Alpharma received an up-front payment and a royalty on Perrigo’s sales of children’s liquid ibuprofen. The FTC received $6.25 million to compensate injured consumers. The states received $1.5 million in lieu of civil penalties. the parties were enjoined from future agreements.
In the Matter of Aggregate Industries, PLC, No. 02-3947 (Mass. Super. Ct. Suffolk Cty., Sept. 6, 2002)
USDOJ and plaintiff state challenged acquisition by British aggregate company of a local aggregate company with concrete plants serving eastern Massachusetts and New Hampshirealleging that the acquisition would reduce the number of ready-mix concrete suppliers able to service large construction projects in northern metropolitan Boston from three to two. In northern metropolitan Boston, Aggregate Industries and Wakefield often were each other’s most significant competitor. Aggregate Industries was required to divest the Wakefield facility to a third-party buyer. The state entered into an Assurance of Discontinuance with Aggregate Industries requiring it to relinquish a lease on another concrete plant in central Massachusetts.
