Antitrust

Read the inaugural issue of AI: The Washington Report, a joint undertaking of Mintz and ML Strategies covering potential federal legislative, executive, or regulatory activities related to AI.

The Federal Trade Commission, in coordination with the U.S. Department of Justice Antitrust Division, recently released a summary of the Agencies’ June 2022 joint workshop titled “The Future of Pharmaceuticals: Examining the Analysis of Pharmaceutical Mergers.”

On April 13, 2023, the Federal Trade Commission put approximately 670 advertisers on notice that they should avoid deceiving consumers with advertisements that make product claims that cannot be backed up or substantiated.

The Federal Trade Commission (“FTC”) announced Monday that it had reversed its in-house Administrative Law Judge’s (“ALJ”) Initial Decision dismissing a complaint brought by FTC staff against Illumina, Inc.’s acquisition of GRAIL, Inc.

On March 16, the U.S. Department of Justice Antitrust Division (“DOJ Antitrust Division”) announced that a federal grand jury returned an indictment charging a former health care staffing executive of fixing wages for nurses.

The Federal Trade Commission on Friday announced a Request for Information regarding “franchise agreements and franchisor business practices, including how franchisors may exert control over franchisees and their workers.”

On January 24, 2023, the Antitrust Division of the U.S. Department of Justice (“DOJ”) and state attorneys general for California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee and Virginia filed a civil antitrust lawsuit in the U.S. District Court for the Eastern District of Virginia against Google LLC (“Google”).

In a closely watched private antitrust case, Saint Francis Hospital and Medical Center, Inc. (“St. Francis”) sued its rival, the Hartford Healthcare Corporation (“HHC”), and on February 13, 2023, the litigation survived a motion to dismiss.

Late last week, the U.S. Department of Justice Antitrust Division announced its withdrawal of a string of healthcare enforcement policy statements issued in 1993, 1996, and 2011.

Mintz Antitrust and Government Law attorneys examine an FTC proposed rule that would ban almost all non-compete provisions in employment relationships. They also discuss why employers should consider auditing non-compete policies and practices and exploring alternatives such as non-disclosure or customer non-solicitation agreements.

This alert discusses the Merger Filing Fee Modernization Act of 2022, which was signed into law on December 29, 2022, and how it substantially increases merger filing fees under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

Prior to the recent midterm elections, we wrote about five Senate Republicans who issued a warning letter to major U.S. law firms regarding the potential antitrust implications of Environmental, Social, and Governance (“ESG”) investing and activities. The letter advises that ESG activities may be viewed as “climate cartels” and present antitrust risk when firms engage in ESG group initiatives. With the midterm election results, those Senate Republicans will likely not be able to follow through on this line of investigation. However, House Republicans have taken up the issue, and they will have the ability to conduct antitrust scrutiny of ESG initiatives.

Last week, the Department of Justice Antitrust Division (“DOJ”) announced that health care staffing company VDA OC LLC pleaded guilty to criminal antitrust charges for engaging in a “no-poach” conspiracy relating to hiring arrangements for school nurses.

The Department of Justice Antitrust Division (“DOJ”) recently announced that it has required several directors to resign from simultaneously serving on the corporate boards of competitor companies.

Read about an FTC policy paper highlighting the pitfalls of Certificates of Public Advantage (“COPAs”) laws, which are state-specific regulatory regimes that allow hospitals to form monopolies that are not subject to federal antitrust litigation.

In a span of a week the NLRB signed Memoranda of Understanding (“MOU”) with both the Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division.  These agreements come just over a year after President Biden issued an “Executive Order on Promoting Competition in the American Economy,” which called on several federal agencies to address competition issues, and included a mandate for agencies to “coordinate, promote, and advance Federal Government efforts to address overconcentration, monopolization, and unfair competition in or directly affecting the American economy.”  While the NLRB was not explicitly identified in the Executive Order (and the DOJ and FTC were), these recent partnerships unmistakably indicate that labor issues and anti-competition issues are inextricably linked, and the NLRB’s willingness to collaborate with other federal agencies to carry out its mandate under the National Labor Relations Act.  Moreover, these recent efforts also represent a clear step by President Biden to follow through on his campaign promise to strengthen unions, worker organizing efforts, and collective bargaining.  Mintz attorneys Evan Piercey, Tinny Song and Richard Block discuss these MOUs in greater detail below and provide some takeaways for employers and business leaders. 

Avanci’s pool retains its 5th Circuit win, in a slightly different way, after an unusual turn of events where the panel rescinded its prior opinion and issued a new one. The new opinion  affirms the district court’s ruling that Continental failed to state a claim under the Sherman Act (antitrust laws) thereby dismissing the case.  The original opinion found that Continental lacked standing to pursue its claims because it was not a third party beneficiary of the standard setting organization contract. Although the new ruling leaves some questions unanswered in the long-running dispute between a would-be implementer (Continental) and holders of standard essential patents (SEPs), the opinion rejects applying the antitrust laws in the SEP/FRAND context.