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.

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.

Avanci’s pool retains its 5th Circuit win, in a slightly different way, after an unusual turn of events where the panel rescinded its prior opinion and issued a new one.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.

The FTC Democratic majority imposes prior approval and prior notice provisions (as well as divestitures) for private equity firm’s acquisition of veterinary services clinics, while expressing skepticism regarding private equity roll-up business model.

This alert covers FTC Chair Lina Khan’s remarks at the 2022 International Competition Network Conference in Berlin, which focused on the merger guideline revision being undertaken by the FTC and the Antitrust Division of the Department of Justice.