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Supreme Court Nominee Merrick Garland on Antitrust
Practical Law Legal Update w-001-6325 (Approx. 3 pages)
Supreme Court Nominee Merrick Garland on Antitrust
by Practical Law Antitrust
| Published on 16 Mar 2016 • USA (National/Federal) |
President Obama announced Judge Merrick Garland as his nominee to take Justice Antonin Scalia's place on the US Supreme Court. Judge Garland, of the US Court of Appeals for the District of Columbia, is well-versed in antitrust law. This Legal Update summarizes some of Judge Garland's notable antitrust decisions.
On March 16, 2016, President Barack Obama announced Judge Merrick Garland as his nominee to replace Justice Antonin Scalia on the US Supreme Court. Judge Garland currently sits on the US Court of Appeals for the District of Columbia Circuit. If confirmed, Judge Garland will bring significant antitrust expertise to the Court.
Judge Garland taught antitrust law at his alma mater, Harvard Law School, in 1986. In 1987, he published an article on antitrust and the state action doctrine in the Yale Law Journal (Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 486 (1987)).
Judge Garland's decisions while on the DC Circuit reveal his antitrust views and show a slight pro-enforcement tendency. Antitrust decisions from Garland's tenure on the court include:
- F.T.C. v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001): A three-judge panel including Judge Garland held 3-0 that the FTC adequately established a prima facie case that a merger between Heinz and Beech-Nut would be anticompetitive. The court noted that the FTC raised serious and substantial questions, and remanded the case for entry of a preliminary injunction. The serious and substantial questions standard has since been adopted by numerous courts addressing FTC meger challenges (see Practice Note, Preliminary Injunctions in FTC and DOJ Merger Challenges, FTC Legal Standard for Obtaining a Preliminary Injunction).
- Andrx Pharmaceuticals, Inc. v. Biovail Corp. Intern., 256 F.3d 799 (D.C. Cir. 2001): A three-judge panel including Judge Garland held 3-0 that in a pay-for-delay case, a competitor's antitrust claim did not warrant dismissal with prejudice where:
- the competitor alleged that the agreement prevented it from entering the market; and
- the competitor, a potential entrant, could demonstrate its intent and preparedness to enter the market.
- In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98 (D.C. Cir. 2002): A three-judge panel including Judge Garland held 3-0 that a question as to plaintiffs' antitrust standing was unrelated to the class certification decision, and therefore did not warrant the court's interlocutory review of the certification decision. The court noted that interlocutory review is only appropriate in rare, specific circumstances.
In a later case, In re Rail Freight Fuel Surcharge Antitrust Litigation, the court noted that special circumstances may also warrant interlocutory review, including for example intervening Supreme Court decisions that have a bearing on a lower court's certification decision (for example, in the case of Rail Freight, Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013)) (725 F.3d 244 (D.C. Cir. 2013).
The Senate will go on a two-week recess starting March 21. There is no set timetable for review of Supreme Court nominations.