Although still a distant second to monopoly, buyer power and monopsony are hot topics in the competition community. The Organisation for Economic Co-operation and Development (OECD), International Competition Network (ICN), and American Antitrust Institute (AAI) have studied monopsony and buyer power recently. The U.S. Department of Justice and Federal Trade Commission pay more attention to buyer power in their 2010 merger guidelines than they did in their earlier guidelines. With growing buyer concentration in commodities such as coffee, tea, and cocoa, and among retailers, buyer power is a human rights issue. (Continue Reading)
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Tag Archives: zastrow
Allen Grunes Quoted in Washington Post: “AT&T Bid for Leap Wireless Seen Winning U.S. Regulatory Approval”
Allen Grunes was asked for his views on the proposed merger of AT&T and Leap Wireless International. (Grunes and Maurice Stucke were the authors of an influential antitrust analysis of the attempted AT&T/T-Mobile merger in 2011.) Please click on the linked article below:
AT&T Bid for Leap Wireless Seen Winning U.S. Regulatory Approval
Competition Policy International: US: New antitrust firm GeyerGorey snags DOJ lawyers after office closures
Main Justice: Policy Politics and the Law: Former DOJ Attorneys Aim For New Model With GeyerGorey LLP Law Firm
The Hill: Lobbying World
Click Here: The Hill: Lobbying World (June 25, 2013)
GGLLP Alert: Changes to the False Claims Act Under the Patient Protection and Affordable Care Act
Changes to the False Claims Act Under the Patient Protection and Affordable Care Act
The 2010 Patient Protection and Affordable Care Act (PPACA) made a number of significant changes to the False Claims Act, including the following:
Original Source Requirement. A plaintiff may now overcome the public disclosure if he or she qualifies as an “original source.” The PPACA revised the definition of this term. Previously, an original source had to have “direct and independent knowledge of the information on which the allegations [were] based.” Now, an original source may be a person who merely has “knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions.” See 31 U.S.C. 3730(e)(4)(B).
Changes to the Public Disclosure Bar. Previously, relators were precluded from proceeding if there had been a public disclosure of information. This disclosure could have occurred in news reports, a Freedom of Information Act response, court proceedings or in any number of ways. Thus, the public disclosure bar often served as a basis for dismissal. The PPACA amended the False Claims Act to allow the government to have the final say on whether a court could properly dismiss a case based on a public disclosure. The statute now provides that “the court shall dismiss an action unless opposed by the Government, if substantially the same allegations or transaction alleged in the action or claim were publicly disclosed.” See 31 U.S.C. 3730(e)(4)(A).
Overpayments. In the prior law, there was confusion as to the “obligation” under the False Claims Act not to retain overpayments and when such overpayments had to be returned after their discovery. Now, under the PPACA, overpayments under Medicare and Medicaid must be reported and returned within 60 days of discovery, or the date a corresponding hospital report is due. The failure timely to report and return an overpayment exposes a provider to False Claims Act liability.
Statutory Anti-Kickback Liability. The federal Anti-Kickback Statute, 42 U.S.C. 1320a-7b(b) (AKS), makes it a crime for any person to solicit, receive, offer or pay remuneration (monetary or otherwise) in exchange for referring patients to receive certain services that are paid for by the government. Previously, many courts had interpreted the False Claims Act to mean that claims submitted as a result of AKS violations were false claims and therefore gave rise to liability under the False Claims Act (in addition to AKS penalties). Even though this was the majority rule, some courts held otherwise and the issue was always present in every case. The PPACA changed the language of the AKS to provide that claims submitted in violation of the AKS automatically constitute false claims for purposes of the False Claims Act. Further, the new language provides that “a person need not have actual knowledge … or specific intent to commit a violation” of the AKS.
***Antitrust Monitor (2 of 2)*** Informal Blog Post by Robert Zastrow regarding Anheuser-Busch InBev’s Proposed Acquisition of Grupo Modelo
Today’s Wall Street Journal article regarding Anheuser-Busch InBev’s Proposed Acquisition of Grupo Modelo ( US Fights AB InBev With Tested Game Plan by Brent Kendall), brought back memories of my life before Verizon when I was general counsel to the New York State Beer Wholesalers’ Association and prosecuting attorney in connection with the Heileman Schlitz merger.
I commend Mr. Kendall’s article, which emphasizes the degree to which DOJ now relies on “hot documents” in merger cases. In this particular case, DOJ cites emails in which AB executives worried about pricing pressure from Modelo. The key issue is likely to be whether Modelo was a cause for particular concern, or whether other premium brands, e.g. Heineken, posed similar issues, not because the premium brands were sold at the same price as Bud, but because if the gap between Bud and Modelo narrowed, customers would trade up. Presumably, this would not include construction workers such as my wife’s crew chief, who had a large Bud tattoo on his right arm!
This article underscores the importance of early attorney involvement in merger planning. How easier it would have been for AB had the lawyers emphasized the importance of documents to the marketing and sales staffs. And, even if the company seeks counsel later, it is never a bad idea for counsel to get the files from a small number of marketing and sales executives to see what they say about the target. Acquirers can pay premiums reaching the billions if a merger does not consummate, and an early assessment of the risk caused by bad documents is essential.
I vividly recall sitting on a panel in the mid 90’s with a former AAG, who shall go nameless. He assured the audience that corporate counsel would soon develop procedures for monitoring emails and insuring that incriminating statements were not recorded. The Bar did not realize then how ubiquitous electronic communications would become — there was barely an Internet then — and how difficult it would be to monitor hundreds of executives who were generating content at their computers all day.
GeyerGorey LLP Establishes 24/7 Client Emergency Hotline
GeyerGorey LLP announced today that it had established a 24/7 Client Emergency Hotline that will always be answered “live” by a GeyerGorey attorney. Current clients should expect to be provided with this telephone number in a separate, confidential communication.