July 2012

A publication of the Exemptions & Immunities Committee of the Section of Antitrust Law, American Bar Association Chair:
John Roberti Mayer Brown LLP jroberti@mayerbrown.com

Welcome to the latest edition of the Exemptions and Immunities Committee newsletter. What were watching: State action doctrine to be considered by the Supreme Court. In the previous edition of E&I Update we asked, Will this be the year that an antitrust exemptions or immunities case reaches the Supreme Court? As many of you know already, we now can answer that question in the affirmative. The Supreme Court has granted certiorari in FTC v. Phoebe Putney Health System, No. 11-1160. The court will review the Eleventh Circuits decision, which dismissed an FTC and state of Georgia challenge to a hospital merger on state action grounds. Phoebe Putney provides the Court with the first opportunity in twenty years to analyze the state action doctrine. As set forth in the FTCs petition for certiorari, the questions presented to the Court involve both the clear articulation and active supervision prongs of the doctrine. Stay tuned to our listserv and Facebook page for updates on this case. In addition, our committee recently co-sponsored a program on Health Care and the State Action Doctrine: From Parker to Phoebe Putney. The audio from this program is available to Section members here. What were watching: Further FTAIA developments. We continue to watch how the appellate courts are interpreting the Foreign Trade Antitrust Improvements Act. At the end of June, the Seventh Circuit issued an en banc decision in Minn-Chem v. Agrium, No. 10-1712 (7th Cir. June 27, 2012), in which it held that the FTAIA does not limit the subject matter of the federal courts, but rather establishes an element of an antitrust claim. In so ruling, the Seventh Circuit overruled an earlier panel decision, as well as its previous en banc decision in United Phosphorus v. Angus Chemical, 322 F.3d 942 (7th Cir. 2003), both of which took a contrary view of the FTAIA. Although the Seventh Circuits en banc decision is consistent with the Third Circuits most recent FTAIA decision in Animal Science Products v. China Minmetals, 654 F.3d 462 (3d Cir. 2011), those two cases conflict with an earlier Ninth Circuit decision, United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir. 2004), finding that the FTAIA serves as a limitation on subject matter. It remains to be seen whether that circuit split will cause the Supreme Court to grant certiorari in Minn-Chem, if the Seventh Circuit decision is appealed, or in another future FTAIA case. What were discussing on the listserv. The Committee summarizes important recent decisions and other developments in exemptions and immunities through its email listserv. One recent case worth noting is City of Pontiac v. Blue Cross Blue Shield of Michigan, in which a federal judge held that the state action doctrine did not
DISCLAIMER STATEMENT
E&I Update is published periodically by the American Bar Association Section of Antitrust Law Exemptions & Immunities Committee. The views expressed in E&I Update are the authors only and not necessarily those of the American Bar Association, the Section of Antitrust Law or the Exemptions & Immunities Committee. If you wish to comment on the contents of E&I Update, please write to the American Bar Association, Section of Antitrust Law, 321 North Clark Street, Chicago, IL 60654.

Vice Chairs:
Richard Fueyo Trenam Kemker rfueyo@trenam.com Gregory Garrett Tydings and Rosenberg LLP ggarrett@tydingslaw.com Gregory Luib Federal Trade Commission gluib@ftc.gov Christopher Sagers Cleveland State University School of Law christopher.sagers@law. csuohio.edu

Young Lawyer Representative:

Vittorio Cottafavi Shearman & Sterling LLP vcottafavi@shearman.com

July 2012

immunize Blue Crosss use of MFN Plus provisions in its contracts with hospitals. Nonetheless, the court dismissed the complaint for failure to allege a plausible antitrust claim. Sarah Riddell provided a great summary of the opinion. In a recent Noerr opinion, the Eastern District of Pennsylvania granted summary judgment to the defendants, brand-name drug manufacturers, on sham litigation claims brought by generic drug makers. One of our contributors, Mario Richards, provided an informative summary of the opinion. The Third Circuit recently issued two opinions addressing the filed rate doctrine: one dealing with the New Jersey title insurance market, and the other concerning the Delaware title insurance market. In both cases, the court affirmed dismissal of the plaintiffs claims, holding that the filed rate doctrine does not require that a state regulator actually review the rates at issue. Contributor Ghee Lee provided summaries of the opinions, available here and here. On the legislative front, the House Subcommittee on IP, Competition, and the Internet held a hearing earlier this year on the use of litigation to harm competition, with a focus on Noerr and Professional Real Estate Investors. Although the Subcommittee did not come to any firm conclusions, the hearings provide for some interesting viewpoints. One of our new contributors, Nigel Barrella, has provided an excellent overview of the hearing. What we have in store for the upcoming ABA year. Greg Luib, currently one of the Vice Chairs of this committee will be taking over as Chair for the upcoming ABA year. The committee also will be welcoming back Chris Sagers and Greg Garrett as Vice Chairs and Vittorio Cottafavi as the Young Lawyer Representative. Joining the committee as Vice Chairs for 2012-2013 will be David Meyer, a partner in the Washington, DC office of Morrison & Foerster, and Alison Smith, a partner in the Houston office of McDermott, Will & Emery. The committee would like to take the opportunity to thank outgoing Chair John Roberti for the tremendous amounts of time and energy that he has devoted to maintaining the high quality of the programs, publications, and other efforts undertaken by this committee. Johns presence on the committee certainly will be missed, but we wish him all the best as he continues his significant contributions to the Antitrust Section. Please let us know what you think of this newsletter or what the committee is doing in general. And, if you want to get involved with committee activities, please do not hesitate to contact Greg Luib (gluib@ftc.gov) or any of the Vice Chairs. We would appreciate hearing from you.

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Copyright 2012 American Bar Association. The contents of this publication may not be reproduced, in whole or in part, without written permission of the ABA. All requests for reprints should be sent to: Director, Copyrights and Contracts, American Bar Association, 321 North Clark, Chicago, IL 60654; FAX: 312-988-6030; e-mail: copyright@abanet.org.