March 2012

A publication of the Exemptions & Immunities Committee of the Section of Antitrust Law, American Bar Association

Welcome to the latest edition of the Exemptions and Immunities Committee newsletter. What were watching: Will Exemptions and Immunities be considered by the Supreme Court? Will this be the year that an antitrust exemptions or immunities case reaches the Supreme Court? We think that there are a few possibilities. First, according to a published report, the Federal Trade Commission will seek certiorari of the Eleventh Circuits decision in FTC v. Phoebe Putney Health Sys., No. 11-12906 (11th Cir. 2011), which dismissed an FTC and state of Georgia challenge to a hospital merger on state action grounds. Phoebe Putney promises to drum up a fair bit of attention, especially if the Court takes the case; no petition has even yet been filed and the case has already been the subject of published commentary by Professor Herbert Hovenkamp. Second, Blue Cross Blue Shield of Michigan has filed a petition for rehearing en banc, challenging a decision of a panel of the Sixth Circuit, which refused to consider the appeal of a denial of a state action defense. This appeal is largely procedural, and goes to the issue of when a state action appeal is ripe. There is a split among the circuits on this issue. The Sixth and Fourth Circuits have ruled that the denial of a state action defense is not immediately appealable. See Huron Valley Hosp. v. City of Pontiac, 792 F.2d 563 (6th Cir. 1986); S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436 (4th Cir. 2006). On the other hand, the Eleventh Circuit has ruled that such a denial is immediately appealable, see, e.g., Commuter Transp. Sys. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286 (11th Cir. 1986), the Fifth Circuit has ruled similarly for governmental defendants (only), see Acoustic Sys. v. Wenger Corp., 207 F.3d 287 (5th Cir. 2000), and the Third and Seventh Circuits have suggested in dicta that interlocutory appeal of a state action ruling is appropriate, see We, Inc. v. City of Phila., 174 F.3d 322 (3d Cir. 1999); Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Cir. 1987). Third, we believe that there could be a split among the circuits involving the Foreign Trade Antitrust Improvements Act. More specifically, The Third Circuit and the Seventh Circuit differ as to whether the FTAIA is a limit on subject matter jurisdiction, or a substantive merits limitation. We are awaiting the Seventh Circuits decision in the en banc rehearing. The Seventh Circuit panel opinion is available here: Minn-Chem v. Agrium (7th Cir.). However that case comes out, there is enough confusion in the FTAIA cases that the Supreme Court may take the opportunity to clarify the issues. If you have not done so already, check out the webcast of the panel discussion that the E&I Committee co-sponsored on the FTAIA. The link to the webcast is here: 2011 Year-end
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.

Chair: John Roberti Mayer Brown LLP Vice Chairs: Richard Fueyo Trenam Kemker

jroberti@mayerbrown.com

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

March 2012

Review of FTAIA cases: Is the pendulum swinging back towards the plaintiffs? (01/27/2012). What were watching: Exemptions legislation. On the legislative front, Senator Herb Kohl (D-WI) offered the Railroad Antitrust Enforcement Act (S. 49) as an amendment to the major transportation bill (S. 1813) currently under consideration in the Senate. Senator Kohl has introduced the Railroad Antitrust Enforcement Act in virtually identical form in the past four sessions of Congress. The current bill was reported out of the Judiciary Committee on March 3, 2011. Senator Kohls press release introducing the amendment is available here: Senator Kohl Press Release. S. 49, as reported by the Judiciary Committee, is available here: S. 49. Senator Mike Lee (R-UT) has expressed his opposition to the bill in a blog post on his website. In addition, Senator John McCain (R-AZ), has introduced new legislation that includes an antitrust exemption for companies that develop mechanisms to share information relating to any cybersecurity threat. The legislation, S. 2151, the Strengthening and Enhancing Cybersecurity by Using Researching, Education, Information, and Technology Act of 2012 (SECURE IT), was only recently introduced and is in its early stages. What were discussing on the list serve. The Committee summarizes important recent opinions through this email list-serv. One recent case worth noting is In re Prograf Antitrust Litigation, 2012 WL 293850 (D. Mass. 2012), where the District Court found a complaint adequately plead sham petitioning with regard to a citizen petition filed with the U.S. Food and Drug Administration. Heres a link to the summary, prepared by Michael Bauer: In re Prograf. 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 John Roberti (JRoberti@mayerbrown.com) or any of the vice chairs. We would love to hear from you.

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