Texas v. Henry Schein, Inc., No. D-1-GN-17-003749, (Travis.Cty. Dist. Ct., 261st Judicial Dist. Aug. 3, 2017)

Plaintiff state reached a settlement with dental supply company concerning an illegal group boycott in the dental supply market. The settlement prohibits Henry Schein Dental from engaging in similar unlawful conduct. Texas settled a similar suit with Benco Dental Supply Company in 2015. The state’s antitrust action stemmed from a three-year investigation into allegations that Schein and two of its competitors worked together to thwart the entry of a lower-cost, online source of dental supplies provided by the Texas Dental Association (TDA). The state alleged that Schein and others colluded to discourage distributors and manufacturers from working with the TDA and its business partner, and agreed not to attend the TDA’s annual trade show in 2014.Under the settlement, Henry Schein Dental is prohibited from participating in anticompetitive activities in the future and must institute additional antitrust training for the company. Schein will pay $300,000 to reimburse the state for investigative costs and attorneys’ fees.

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State of Washington v.Franciscan Health System et al, No. 3:17-cv-05690 (W.D. Wash.Aug. 31, 2017)

Plaintiff state sought to enjoin two transactions. The first was the acquisition by CHI Franciscan, a health system on the Kitsap Peninsula, of WestSound, an orthopedic physician practice. The second was CHI’s agreements with The Doctors Clinic (TDC), a multispecialty physician practice, under which TDC would receive CHI Franciscan’s negotiated reimbursement rates with payers. TDC and CHI Franciscan remain separate entities. The state alleged that the purpose of these transactions was to “win the ability to charge higher rates for physician services, and to collectively gain negotiating clout over healthcare payers by removing head-to-head competition.” The state also alleged that the affiliation between Franciscan and TDC is a price-fixing agreement which has led to increased wait times, difficulty in scheduling procedures, and a reduction in patient choice of services and locations. The parties reached a settlement that 1) bars CHI Franciscan from entering into similar agreements in the future; 2) requires the health system to give the Attorney General’s Office advanced notice of future arrangements that could decrease competition; 3) divest its controlling interest in an outpatient surgery center it acquired in Silverdale; 4)requires primary care physicians and orthopedists at The Doctors Clinic to contract with insurers separately from CHI Franciscan if the insurers desire; 5) forces CHI Franciscan to allow for incentive-based payments to The Doctors Clinic physicians for providing higher quality of care, instead of higher patient volume; 6) requires Franciscan and The Doctors Clinic to notify Kitsap Peninsula imaging patients of imaging facility options available to them other than Harrison Medical Center and 7) pay up to $2.5 million as a cy pres distribution, to be distributed by the Attorney General’s Office among at least four health providers to increase access to health care on the Kitsap Peninsula. The grant money will go toward direct patient services.

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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.

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In the Matter of the Investigation of Compulink Technologies, Inc.Assurance No. 17-137 (July 28, 2017)

Defendants are providers of GovDelivery, a cloud-based digital communications solution. New York State government entities issued RFPs seeking bids for GovDelivery solutions. Compulink submitted bids. In order to provide the necessary number of bids for the procurement process in New York, Compulink arranged for Milenio, run by the wife of Compulink’s owner, and another bidder to submit bids at a higher price than Compulink’s. Compulink was awarded contracts as a result fo these sham bids. Although the bids were rigged, the investigation determined that the sham bids were submitted to satisfy the requirements for an expedited procurement process, rather than to secure higher prices. The parties agreed not to communicate with others concerning bids, not to hold themselves out as separate entities, and allow the AG to monitor their future conduct. They also paid $75,000 in civil penalties..Denise Arboleda, President of Milenio Technology, also pled guilty to failure to obey the command of a subpoena.

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State of California ex rel. Becerra v. Watson Laboratories, Inc., No. 17-cv-00562 (N.D. Cal. Feb. 3, 2017)

Plaintiff state filed complaint alleging violations of the Sherman Act and California’s Cartwright Act. the complaint alleged an anticompetitive pay-for-delay agreement with respect to the Lidoderm pain relief patch. According to the complaint, Watson Pharmaceuticals Inc. colluded with its competitors and fixed the price of the generic version of the drug.
Watson, which subsequently was acquired by Teva Pharmaceutical Industries Ltd., allegedly agreed to settle a patent infringement suit with its competitor Endo Pharmaceuticals Inc., which was the only producer of the name-brand pain relief patch. Pursuant to the agreement, Endo agreed to allow Watson to sell branded Lidoderm at no cost, if Watson agreed to hold off on its release of a generic version of the drug. Then, when Watson released its generic version, Endo did not release its own generic version for nearly eight months, the suit claims.
According to the complaint, “The threat of generic entry to Lidoderm posed significant financial risks for the company,†and “Endo knew that generic competition would decimate its Lidoderm sales and that any delay in generic competition would be highly profitable for Endo, but very costly for consumers.â€
California settled with Endo for a $760,000 payment (not characterized as attorneys’ fees or civil penalties) and an eight-year injunction preventing future pay-for-delay conduct.

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New Hampshire Snowmobile Associaiton (Assurance of Discontinuance)

The New Hampshire Snowmobile Association, entered into an agreement to resolve allegations of price fixing conduct, and related unfair method of competition and unfair or deceptive practices in facilitating and securing agreements from NHSA member clubs to set uniform club dues for club members when selling club memberships through NHSA’s online club membership sales portal, and in requiring consumers who use NHSA’s online club membership sales portal to also become individual NHSA members without sufficiently informing them of, or providing an option regarding, a dual membership purchase.

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California v. Valero Energy Corp., No. C17-03786 (N.D. Cal. July 10, 2017)

Plaintiff state sought to enjoin proposed purchase by Valero of two petroleum storage and distribution terminals owned by Plains in Martinez and Richmond, California. The complaint has been filed under seal. The court denied the state’s request for a TRO, but held that the state had a likelihood of success on the merits. The parties abandoned the transaction.

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Alaska v. Crowley Marine Services et al., No. 3AN-04-100 Civil. (Alaska Superior Court, 2005)

Alaska initiated an investigation of the merger between two companies providing barge-delivered petroleum products to western Alaska. A consent decree was reached between the parties that requires significant divestiture of vessels, storage facilities, and property to a qualified buyer approved by the state. The consent decreed was filed for approval in the Alaska Superior Court, and was approved in September, 2005 after a hearing to consider strong opposition from fuel customers in western Alaska.

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FTC, Pennsylvania and D.C. v. Staples

Two office supply “superstore” chains sought to merge. The FTC, Pennsylvania and D.C. challenged the merger and were successful in obtaining an injunction. After the parties abandoned the merger, the states sought attorneys’ fees, which were denied by the court.

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FTC and Plaintiff States (CA and DC) v. Draft Kings, No. 17-cv-01195 (D.D.C. 2017)

States and the FTC sued to block the merger of the two largest daily fantasy sports sites, alleging that the combined firm would control more than 90 percent of the US market for paid daily fantasy sports contests. Plaintiff states and the FTC allege that the defendants compete with each other on price and quality.

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