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DOJ Makes Good on Promise to Review Interlocking Directorates
October 21, 2022 | Blog | By Bruce Sokler, Robert Kidwell, Payton Thornton
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.
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Vet Clinic FTC Settlement Puts Private Equity On Notice
June 17, 2022 | Blog | By Bruce Sokler, Tinny Song
DOJ Loses Two Criminal Antitrust Labor Trials, Stymied by (Lack of) Evidence
April 19, 2022 | Blog | By Bruce Sokler, Tinny Song
Last week, the Antitrust Division of the U.S. Department of Justice (“DOJ”) was handed two losses after federal juries in the U.S. District Court for the Eastern District of Texas and the U.S. District Court for the District of Colorado acquitted defendants accused of violating the antitrust laws by fixing wages and conspiring to suppress competition through no-poach agreements, respectively.
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No Harm, No Foul, and No Standing for Would-be SEP Implementer: 5th Circuit Changes Narrative on Patent “Hold Up”
March 3, 2022 | Blog | By Daniel Weinger, Michael Renaud, Bruce Sokler, James Thomson
In its analysis of Cont’l Auto. Sys., Inc. v. Avanci, L.L.C.,, the Fifth Circuit made several interesting findings: (1) that potential pass-through non-FRAND royalties are too speculative to create an injury in fact; (2) that SEP holders can fulfill their obligations to SSOs, with respect to suppliers, by actively licensing SEPs to downstream OEMs; and (3) that not all implementers are intended beneficiaries entitled to FRAND licenses.
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FTC, DOJ Launch Proceeding to Revise Antitrust Merger Guidelines
January 19, 2022 | Blog | By Bruce Sokler, Joseph Miller , Robert Kidwell, Farrah Short
As has been expected, on January 18, 2022, the Federal Trade Commission (“FTC”) and Antitrust Division of the Department of Justice (“DOJ”) announced in a joint press conference an initiative to review and revise the antitrust merger guidelines. In his competition Executive Order last summer, President Biden announced a policy calling for increased scrutiny of mergers. Against this backdrop, one would expect the effort would result in the toughening of standards over what currently is found in the existing guidelines.
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FTC Issues Fines Totaling Nearly $2 Million For Failures To File HSR Notifications
December 27, 2021 | Blog | By Bruce Sokler, Farrah Short
The Federal Trade Commission is closing out the year with vigorous enforcement of the Hart Scott Rodino Antitrust Improvements Act of 1976 (“HSR Act”) by imposing fines totaling nearly $2 million. On December 22, 2021, the FTC settled charges in two separate matters for repeated violations of the HSR Act. In one, investment fund operator Biglari Holdings Inc. will pay $1.4 million to settle charges that it failed to file the required HSR notification for stock acquisitions it made in 2020. In the other, Clarence L. Werner, founder of Werner Enterprises, Inc. will pay $486,900 to settle charges that he failed to file for acquisitions between May 2007 and February 2020 of his company’s stock.
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DOJ and FTC Virtual Workshop: Agencies Discuss Whole-of-Government Approach and New Solutions to Address Competition Issues in Labor Markets
December 10, 2021 | Blog | By Bruce Sokler, Joseph Miller , Tinny Song
On December 6 and 7, 2021, the Department of Justice Antitrust Division (“DOJ”) and the Federal Trade Commission (“FTC”) hosted a virtual workshop to discuss competition issues in labor markets and plans to execute President Biden’s Executive Order to address competition issues in our modern economy. The workshop, along with enforcement actions already underway, reinforces that this is a priority area for the Administration; marketplace participants are well advised to review their policies and compliance programs accordingly.
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Antitrust Agencies to Hold Virtual Public Workshop to Promote Competition in Labor Markets
October 29, 2021 | Blog | By Bruce Sokler, Tinny Song
The Federal Trade Commission (“FTC”) and the Department of Justice Antitrust Division (“DOJ”) just announced that they will host a virtual workshop on December 6 and 7, 2021, to discuss the agencies’ efforts to promote competition in labor markets and worker mobility.
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Not Cleared for Takeoff: DOJ Sues to Stop American-JetBlue Alliance in the Northeast
September 27, 2021 | Blog | By Bruce Sokler, Tinny Song
Busy Week for the FTC Shows Aspirations of and Limitations on Chair Khan’s Enforcement Agenda
July 9, 2021 | Blog | By Bruce Sokler, Joseph Miller , Alexandra Gallo-Cook
Last week was momentous for the Federal Trade Commission. First, the campaign use antitrust to reign in “Big Tech” faced a setback as the United States District Court for District of Columbia dismissed the FTC’s suit against Facebook (as well as a similar suit brought by virtually all the State Attorney Generals). In juxtaposition, on July 1, 2021, the FTC held an unusual open meeting of the Commission. Clearly indicating that she intends to utilize her 3-2 Democratic majority while she has it1, Chair Lina Khan passed several agenda items foreshadowing broad, aggressive antitrust enforcement activity by the FTC.
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Second Circuit Provides Clarity on “Inherently Suspect” Standard, Overturns FTC’s Ruling on 1-800 Contacts Trademark Agreements
June 21, 2021 | Blog | By Joseph Miller , Evelyn French
On June 11, 2021, the U.S. Court of Appeals for the Second Circuit dismissed the Federal Trade Commission’s (FTC) administrative order against 1-800 Contacts, Inc. The Second Circuit found that the online retailer’s trademark settlements with competitor online contact lens sellers were not “inherently suspect” and, instead, should be evaluated under the traditional rule of reason analysis. The trademark settlements specified, among other things, that 1-800 Contacts’ competitors would not bid on the company’s name as a keyword in online search advertising. This ruling has significant implications for the “inherently suspect” standard—according to the Second Circuit, “courts do not have sufficient experience with this type of conduct to permit [the FTC’s] abbreviated analysis.”
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International Coalition of Competition Enforcement Agencies Seek Public Comment to Explore “New or Refreshed” Theories of Competitive Harm Related to Pharmaceutical Mergers
May 13, 2021 | Blog | By Bruce Sokler, Joseph Miller , Tinny Song
On Tuesday, May 11, 2021, an international coalition of competition enforcement agencies including the Federal Trade Commission, the U.S. Department of Justice’s Antitrust Division, Offices of State Attorneys General, Canada’s Competition Bureau, the European Commission Directorate General for Competition, and the U.K.’s Competition and Markets Authority issued a notice seeking public input to inform their approaches to analyzing the competitive effects of pharmaceutical mergers.
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The Tail Cannot Wag the Dog: the U.S. Supreme Court Rules that the FTC Cannot Seek Equitable Monetary Relief in Section 13(b) Cases
April 27, 2021 | Blog | By Bruce Sokler, Evelyn French
On April 22, 2021, in a unanimous decision authored by Justice Stephen Breyer, the U.S. Supreme Court ruled that the Federal Trade Commission (“FTC”) does not have the authority to seek monetary relief under Section 13(b) of the FTC Act. The decision in AMG Capital Management, LLC v. Federal Trade Commission has significant ramifications for the FTC’s enforcement authority in federal courts. Additionally, it is likely that this ruling will spur Congress to take a serious look at amending Section 13(b) to provide an express right to equitable monetary relief. Indeed, just today, in testimony before the House Energy and Commerce Subcommittee on Consumer Protection and Commerce, the FTC asked Congress to pass such an amendment.
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