The prosecution of Elizabeth Holmes, founder of the infamous healthcare and life sciences company, Theranos, Inc., has sparked media attention around the country. With just a few months before trial is slated to begin, Holmes recently lost her pretrial battle over whether the attorney-client privilege precludes the introduction of certain emails with counsel.  While the emails at issue remain sealed from public view, related filings and hearings indicate Holmes and lawyers at Boies Schiller Flexner…

Earlier this month, the Second Circuit overturned a decision by the Federal Trade Commission (the “FTC”) holding 1-800-Contacts violated antitrust law by entering into trademark settlement and related agreements that restricted bidding on auctions held by companies that operate search engines. 1-800 Contacts v. Federal Trade Commission. Although the Second Circuit recognized that trademark settlement agreements are “not immune from antitrust scrutiny,” it disagreed with the FTC’s analysis of the alleged restraints set forth…

In recent weeks many states have either started lifting pricing restrictions put in place during the COVID-19 pandemic or announced their plans to do so. Still, some state governments have indicated that they will continue to hold pricing restrictions in place as a means of protecting consumer welfare as people return to normal spending habits and economies recover from the toll of the pandemic. As the country begins turning the corner toward the end of…

Judicial notice is one of the less glamorous parts of motion practice. A request for judicial notice is typically a lower-priority background document, drafted towards the end of the brief-writing process, along with a notice of motion and declaration.  But at times, questions relating to judicial notice standards warrant additional consideration, along with the merits of the case.…

The United State Court of Appeals for the Federal Circuit recently affirmed a decision by the United States District Court for the Central District of California, setting aside a judgment and injunction in a patent infringement case due to material misrepresentations on the part of the prevailing party discovered after the final judgment was issued. This case serves as a reminder of the importance of making honest and factually accurate statements to a court and…

After a bit of hiatus on aggressively challenging vertical mergers, regulators both here in the United States and abroad have resumed initiated actions to challenge vertical mergers. Traditionally a difficult lift for the FTC, vertical vergers involve companies above and below each other in the supply chain. Instead of directly competing, an upstream company acquires the company it supplies with critical inputs. Recent announcements of high-profile vertical mergers signal increased FTC and European regulatory scrutiny…

Many companies have increased prices in recent months.  Reportedly, across the economy, prices “rose by 5 percent in May compared with a year ago.” Restaurants are raising prices to cover the cost of increases in wages in a tight labor market.  The prices of used and rental cars are quickly rising, due to low inventory and higher demand. Gasoline prices have risen, and not just as a result of the recent cyberattack.…