Antitrust News & Notes is a bi-monthly report concerning recent developments, issues, and matters of interest in antitrust law and competition policy. To access your copy of the most current issue, follow this link.

In this issue, we examine some emerging trends involving federal antitrust enforcement:

• DOJ Describes Its Approach to Merger Remedies
  We discuss the U.S. Department of Justice (DOJ) Antitrust Division's Policy Guide to Merger Remedies. The purpose of all merger remedies is to preserve the level of competition that existed in a market before the merger at issue. In the case of horizontal mergers, the DOJ prefers structural remedies that require the merging parties to sell off either assets or entire business divisions to a third party capable of preserving competition. In the case of vertical mergers, the DOJ prefers conduct remedies such as information firewalls between divisions of the merged entity and obligations to deal with all firms on a non-discriminatory basis. In the case of all merger remedies, the DOJ plays an active role in compliance, ensuring that merging parties preserve the competitive viability of divestiture packages and sell them in a timely manner and abide by the terms of conduct remedies.
  
  
• Court Rejects Motion to Dismiss in DOJ-Blue Cross Blue Shield Litigation Over Most Favored Nation Clauses
  In this article, we review the U.S. District Court for the Eastern District of Michigan’s decision to deny Blue Cross Blue Shield of Michigan’s motion to dismiss, filed in response to the Antitrust Division of the U.S. Department of Justice (DOJ) and the State of Michigan claiming that most favored nation (MFN) clauses, found in contracts between Blue Cross and hospitals throughout the state, violate the Sherman Act and the Michigan Antitrust Reform Act. The district court held that the DOJ and the state met the burden, at the pleading stage, of showing that the MFN clauses have anticompetitive effects in the market for the sale of commercial health insurance in Michigan.
  
  
• District Court Denies Motion for Summary Judgment in Groundbreaking Decision Regarding the Foreign Sovereign Compulsion Defense Despite Chinese Government’s Appearance as an Amicus
  This piece reviews the U.S. District Court for the Eastern District of New York's rejection of an argument on summary judgment that a group of Chinese vitamin C manufacturers were compelled by the Chinese government to fix prices for the export of vitamin C. The decision explores the contours of the foreign sovereign compulsion defense, taking a narrow view of its potency, and rejects the Chinese government's interpretation of its own law in the government's first ever appearance before a U.S. court as an amicus.
  
  
• Administrative Law Judge Finds that North Carolina State Board of Dental Examiners Violated FTC Act
  In this article, we review the ruling by the Federal Trade Commission's (FTC) Chief Administrative Law Judge (ALJ) that the North Carolina State Board of Dental Examiners violated the FTC Act. The Board sent cease-and-desist letters to non-dentists offering teeth-whitening services. The ALJ found that the Board's conduct excluded non-dentist providers of teeth-whitening services from the market and reduced competition and consumer choice. In a separate opinion, the five-member Commission ruled that the Board is not entitled to "state action" immunity because it is not sufficiently independent from the dentists that it regulates.
  
  
• Recent Decisions Shed Light on the FTAIA
  

  The Foreign Trade Antitrust Improvement Act (FTAIA) was meant to clarify what aspects of foreign commerce fall under the purview of the Sherman Act. The FTAIA, however, is inelegantly drafted forcing companies to rely on court decisions as to its scope and application. Two recent decisions from the Third and Seventh Circuits provide some much needed clarification. 

For more information on these, or any other antitrust topics, please contact editor Craig Seebald, or e-mail one of our Antitrust practice contacts. Visit our website to learn more about V&E's Antitrust practice. Access prior issues of Antitrust News & Notes here.