FTC Approves Nielsen-Arbitron Transaction with Licensing and Divestiture Remedies

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1 WRITTEN BY M. BRINKLEY TAPPAN AND LOGAN M. BREED SEPTEMBER 16-22, 2013 MERGERS & ACQUISITIONS FTC Approves Nielsen-Arbitron Transaction with Licensing and Divestiture Remedies On September 20, the FTC announced that it had reached an agreement with Nielsen and Arbitron that would resolve the Commission s concern that the proposed acquisition of Arbitron by Nielsen would substantially lessen future competition in the nascent market for national syndicated cross-platform audience measurement services. The proposed consent agreement requires Nielsen to divest and license assets and intellectual property needed to develop a viable competing service. The FTC found that Nielsen and Arbitron were both developing national syndicated audience measurement services that would allow audiences to be measured accurately across multiple platforms (e.g.,tv and online), although neither currently has a marketable final product. According to the FTC s complaint, the parties were uniquely positioned to develop a national syndicated cross-platform audience measurement service because of their existing audience measurement panels and proven audience measurement technology assets. The FTC alleged that [o]nly Nielsen and Arbitron maintain large, representative panels capable of measuring television with the required individual-level demographics, and therefore the transaction would combine the only two significant competitors in the emerging market for national syndicated cross-platform audience measurement services. Among other things, the consent agreement requires Nielsen to provide an acquirer with a perpetual, royalty-free license to data, including individual-level demographic data, and technology related to Arbitron s cross-platform audience measurement business for at least eight years. Nielsen also must make improvements and enhancements to the Arbitron panels at

2 the request and expense of the Acquirer that will further the Acquirer s ability to offer a national syndicated cross-platform audience measurement service. Federal Trade Commission, In the Matter of Nielsen Holdings N.V. and Arbitron Inc., FTC File No (September 20, 2013), materials available at David McAfee, FTC Clears Nielsen s $1.26B Arbitron Buy With Conditions, Law360 (September 20, 2013), available at b-arbitron-buy-with-conditions PATENTS Standard-Setting Organizations to Formulate Proposals on SEP Injunctions and Meaning of FRAND Two standard-setting organizations (SSOs) are reported to be evaluating two issues that have been central to recent patent disputes: whether holders of standard-essential patents (SEPs) should be allowed to seek injunctions, and the meaning of reasonable in the context of fair, reasonable and non-discriminatory (FRAND) licensing commitments often undertaken by owners of SEPs. The International Telecommunication Union (ITU) will meet in Geneva on October 22, and will reportedly seek to foster a compromise position among its members regarding whether injunctions should be available as a remedy in infringement suits involving SEPs. ITU members have made diverse proposals on the issue. While some companies have argued that injunctions should never be available, others have suggested that injunctions should be permitted under certain limited circumstances, such as when a potential licensee has refused to pay a royalty set through arbitration. The ITU has not given any indication regarding how it will navigate a diverse set of proposals to arrive at a consensus approach. In December, the European Telecommunication Standards Institute will meet in France to discuss the same issues. Source: -2-

3 Matthew Newman and Lewis Crofts, Comment: Standards setters push smartphone makers to reach consensus on patent injunctions, MLex (September 20, 2012), available at Findthebest.com Files RICO Claim Against Patent Assertion Entity Lumen View Technology Consumer research website Findthebest.com (FTB) has launched a lawsuit against Lumen View Technology, a patent assertion entity that sued FTB for allegedly infringing Lumen s preference ranking technology. FTB s complaint, filed on September 16, 2013 in the Southern District of New York, characterizes Lumen as a non-practicing entity [that] acquires patents... for the purpose of filing patent infringement lawsuits and improperly extorting licensing fees and settlements. (Complaint at 5). The complaint further alleges that Lumen s licensing activities run afoul of the Racketeering Influenced and Corrupt Organizations Act (RICO) and California state law prohibiting unfair, unlawful and fraudulent business practices. (Complaint at 19, 27). FTB s claims are based on the assertion that Lumen s infringement claims are objectively baseless, and were filed for the sole purpose of extorting illegal licensing fees or a nuisance settlement from FTB. (Complaint at 15). To support this contention, FTB alleges that Lumen engaged in no meaningful pre-filing investigation, and that Defendants knew that FTB was not infringing upon the 073 patent. (Complaint at 15). FTB further alleges that Lumen has filed more than 20 identical infringement suits against different targets, and that it has settled these cases for nuisance fees without ever describing how the targets infringe Lumen s patents. (Complaint at 10). As infringement litigation by patent assertion entities has increased, companies defending these suits have tested various legal theories in an attempt to stem the tide. Earlier this year, in In re Innovatio IP Ventures, LLC Patent Litigation, No. 1:11-cv-9308 (N.D. Ill. Feb. 4, 2013), a group of WLAN product manufacturers brought their own RICO claim against patent assertion entity Innovatio IP Ventures in the Northern District of Illinois. That RICO claim was dismissed, with the court holding that the plaintiffs failed to show that the infringement claims at issue were objectively baseless. In the decision, the court left open the possibility that a RICO claim could be viable where the facts show that an infringement claim is objectively baseless. The recent FTB lawsuit may therefore add to a growing body of case law in this area. David McAfee, Research Website Accuses Patent Troll of Extortion, Law360 (September 17, 2013), available at -3-

4 Complaint, Findthebest.com v. Lumen Technology LLC (S.D.N.Y. September 16, 2013), available at PHARMACEUTICALS FTC Commissioner Julie Brill Speaks on Reverse Payment Settlements Speaking to the International Bar Association on September 14, FTC Commissioner Julie Brill addressed the Supreme Court s June 2013 decision in the reverse-payment-settlement case FTC v. Actavis, and described how the FTC will proceed in light of the decision. She also opined on the implications of the decision in the broader context of competition, intellectual property and innovation. In Actavis, the Supreme Court held that reverse payment settlements which occur when a branded pharmaceutical company settles infringement litigation against a generic new entrant by paying the generic entrant in exchange for a commitment to delay generic entry into the market should be subject to antitrust scrutiny under the rule of reason, rather than per se legal as a result of the branded pharmaceutical company s patent rights. Commissioner Brill said that the Supreme Court s decision reinforced several universal principles that generally apply to the interplay between antitrust, patents, and innovation, not just in the pay-for-delay context. First, according to Commissioner Brill, public policy favoring competition matters greatly when weighing these issues. Commissioner Brill added that the Hatch-Waxman statute which creates incentives for generic pharmaceutical companies to enter the market, but has also resulted in frequent infringement litigation that ends in reverse payment settlements was intended to reward investment in pharmaceutical innovation but was also enacted to create a clearer pathway to generic competition rather than the ability to buy it off. The second principle Commissioner Brill outlined is that the antitrust agencies must be prepared to advocate for the public interest, and do so in the long term. Commissioner Brill attributed the results of the Actavis case to the FTC s persistence and advocacy over a long period of time. Finally, Commissioner Brill stated that industry and the private bar must understand that if the antitrust agencies won t speak for competition, then who will? She added that while patents play an important role in fueling the innovation engine, they are not iron clad property rights beyond the reach of antitrust. Concluding her speech, Commissioner Brill said that the FTC will continue its efforts against pay-for-delay settlements by pursuing current matters, monitoring private suits and filing amicus briefs where appropriate, and continuing to investigate deals that raise concerns. -4-

5 Julie Brill, Antitrust and Innovation: Rebalancing the Scale. Remarks of Commissioner Julie Brill, International Bar Association (September 14, 2013), available at Alex Lawson, FTC s Brill Vows to Fight Against Pay-For-Delay, Law360 (September 17, 2013), available at TECHNOLOGY INDUSTRY PAE Expert Colleen Chien Named White House IP Advisor Santa Clara University professor Colleen Chien joined the White House Office of Science and Technology Policy (OSTP) on September 16. She will serve as senior advisor to U.S. Chief Technology Officer Todd Park, focusing on intellectual property and innovation. Professor Chien has written extensively on patent assertion entities (PAEs) and their effect on innovation and competition. She served as a panelist at the December 2012 workshop on patent assertion entities jointly organized by the Antitrust Division of the Department of Justice and the FTC. She has also testified before Congress and the U.S. Patent and Trademark Office on the subject of PAEs. In June 2013, the White House released a study on patent assertion entities, along with various related recommendations. The addition of Professor Chien to the OSTP indicates an ongoing interest in the subject by the Administration. Patent Assertion and U.S. Innovation, Executive Office of the President (June 2013), available at Ryan Davis, Santa Clara Law Professor Named White House IP Adviser, Law360 (September 16, 2013), available at Visit our resources page at: hived.authcheckdam.pdf -5-

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