Companies considering a merger should review the trends in merger review and enforcement outlined in the antitrust agencies' HSR Annual Report for Fiscal Year 2013 (HSR Report).
The HSR Report states that in fiscal year 2013:
Early termination of the HSR waiting period was:
The HSR Report also addresses:
For resources to assist counsel with HSR filings see the Hart-Scott-Rodino Act Toolkit.
Patent owners should be aware of a recent US Supreme Court decision that significantly narrows the scope of induced patent infringement, particularly for software and business method patents.
In Limelight Networks, Inc. v. Akamai Technologies, Inc., the Supreme Court held that liability for induced patent infringement under 35 U.S.C. § 271(b) only exists if there is direct infringement by a single entity under 35 U.S.C. § 271(a). The Supreme Court rejected the Federal Circuit's holding that inducement liability does not require direct infringement attributable to a single entity.
The Supreme Court left intact the direct infringement standard in Muniauction, Inc. v. Thomson Corp., where the Federal Circuit held that direct infringement of a patented method exists if a party either performs:
In Limelight, the Supreme Court found no induced infringement because Limelight failed to perform one method step and did not control its customers' performance of that step.
As a result of the Limelight decision:
For more information on patent litigation and patent infringement claims and defenses, see Practice Note, Patent Infringement Claims and Defenses.
A recent Second Circuit decision makes it easier for companies accused of securities law violations to settle with the SEC.
In SEC v. Citigroup Global Markets, Inc., the Second Circuit adopted a deferential standard for district court review of proposed consent decrees. In vacating the district court's refusal to approve a proposed settlement, the Second Circuit held that a district court must enter a consent decree if it is fair and reasonable, unless any injunctive relief in the consent decree would disserve the public interest.
In making these judgments, a district court should consider:
The Second Circuit also held that a district court may not:
This decision should facilitate settlement of SEC enforcement actions because it limits the scope of a district court's review and accords substantial deference to the SEC's judgment about when and how to settle. The decision also identifies the factors that companies and their counsel should address when submitting a consent decree to a district court for approval.
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