Law360 Quotes Akin Gump Attorneys on 2013 Hot Topics in Antitrust, Trade, Environment and Health Care

Law360 has published a series of articles concerning potentially significant cases, regulations, legislation and developments that will unfold in 2013. 

For these articles, it consulted Akin Gump attorneys across a broad range of the firm’s practices: partners Mark Botti on antitrust, Hal Shapiro on international trade, Paul Gutermann on environmental regulation and Stephanie Webster on health care regulation.


For “Competition Cases To Watch For In 2013,” an overview of upcoming “high-profile competition cases, Akin Gump antitrust and unfair competition partner Mark Botti on two cases before the U.S. Supreme Court: Comcast v. Behrend and AmEx v. Italian Colors.  Botti noted, “Both of these decisions if they come down in a certain way would put a damper on private suits in federal courts.” 

Botti was also quoted on the Justice Department’s biggest-ever cartel investigation of the auto parts industry, saying “There's no sign yet that auto parts has let up, so I think we don't know whether we're merely seeing the tip of the iceberg and there's much that follows or whether what we've seen is all that there's going to be. But it's worth watching because in the past when the Antitrust Division has found a certain type of conduct in an industry like this, it has found more of it.”

For “Competition Regulation And Legislation To Watch In 2013,” a look at the dominant upcoming issues on the antitrust regulatory scene, Botti, commenting on standard essential patents, said, “This whole area of standard essential patents and standard setting in the patent area is clearly one that the agencies are putting effort into examining. I would expect given the current interest of agencies, the importance of the issues, that the agencies will be receptive to looking at these things. Once they look at them, they may see things that trouble them and lead them to bring cases.”

On the FTC’s decision to use its Section 5 authority to bar Robert Bosch GmbH from seeking injunctions based on its standard essential patents as well as the departure of FTC Commissioner J. Thomas Rosch and the rumored departure of FTC Chairman Jon Leibowitz, he noted “Chairman Leibowitz has obviously been an influential chair, and … whoever takes that position will have their own priorities. There is the potential that they would be less likely to try to push [Section 5] if the two of them are not there.”

On the impact of the Affordable Care Act (ACA) on the nation’s health care markets, Botti said “We should see a growth in the number of people insured, [and] growing markets tend to have less antitrust issues in them, so if the reforms work the way they're intended to, we should see increased competition in some aspects of the market. On the other hand, it's an important area of policy for the administration overall, so you would expect the antitrust agencies to be responsive to significant or serious concerns if there's something that threatens those reforms.”

International Trade

For “International Trade Developments To Watch In 2013,” an overview of upcoming international trade matters, international trade partner Hal Shapiro, on the topic of the U.S.-China trade disputes over solar panels and other renewable energy inputs, said, “One of the big things that's going to define the next year is China.” 

Discussing Trade Promotion Authority, which is the expedited path to approval by Congress of trade deals negotiated by the executive branch, Shapiro noted  that, in the past, the fast track provision was routinely renewed by Congress without much partisan rancor.  Strained relations between the executive and Congress over the last six years has complicated renewal of this provision. Shapiro notes that renewing it in 2013 would require restoring that relationship: "It's really about whether they can rebuild that trust."


For “Environmental Regulation To Watch In 2013,” a survey of possible EPA regulatory and enforcement moves, environment and natural resources partner Paul Gutermann noted, on the topic of the EPA’s expected proposal for output-based limits on carbon dioxide emissions from new fossil fuel-fired power plants, and the potential effect of that proposal on the coal industry, “Even though it's only a proposed rule, the utility industry is seeking a declaratory ruling that standard will only apply to limited combustion technologies and not coal-fired plants. Such a ruling would set back any efforts to establish new source standards for coal plants by two to three years. It's under the radar, but has potential huge impact.”

Health Care

In “Health Care Regulation To Watch In 2013,” a forecast of new regulations and guidance due to be released as the bulk of the ACA goes into effect, health industry partner Stephanie Webster, on the topic of new payment calculations for disproportionate share hospitals—those hospitals that care for poor and uninsured patients—said that hospitals should pay close attention for the rule, expected this summer, that will lay out the new calculations, noting that it's especially important because, under the ACA, the estimates used in the calculations will not be subject to either administrative or judicial review. She added, “It makes it hard to hold the government accountable. There used to be the right to that kind of review in order to keep the government transparent. It makes it all the more important for DSH hospitals to pay really close attention to what CMS is doing.”