Antitrust Law Blog

Current Antitrust & Competition News & Regulatory Developments

* Reprinted with permission from Global Competition Review. The full version of GCR’s US Courts Annual Review, published in July 2020, is available here. The United States Supreme Court’s single antitrust case of the 2019 term, Apple, Inc v. Pepper upheld the long-standing and often criticized direct purchaser rule in the realm of sales through iPhone apps and other online sales platforms. The direct purchaser rule, established through the Supreme Court’s decisions in Hanover Shoe v. United Shoe Machinery Co and Illinois Brick Co v. Illinois limited standing to “the overcharged direct purchaser, and not others in the chain…
On June 22, 2020, Assistant Attorney General Makan Delrahim, head of the Antitrust Division at the Department of Justice, and Jay Clayton, Chairman of the Securities and Exchange Commission, signed a Memorandum of Understanding (“MOU”) concerning “Cooperation with Respect to Promoting Competitive Conditions in the Securities Industry.”…
On July 9, 2020, the U.S. Supreme Court granted petitions for certiorari in FTC v. Credit Bureau Center and AMG Capital Management, LLC v. FTC, cases that question the Federal Trade Commission’s authority to demand equitable monetary relief such as restitution and disgorgement under Section 13(b) of the FTC Act, which permits courts to issue “injunction[s]”  without express reference to equitable monetary relief. The Court’s decision in these cases will have sweeping ramifications for the FTC, which has referred to its efforts to obtain disgorgement under Section 13(b) of the FTC Act as “a cornerstone of the FTC’s enforcement program…
The cannabis industry faced heightened antitrust scrutiny from the Department of Justice (DOJ) in 2019.  There were public reports regarding several “Second Requests” seeking information about potential cannabis transactions.  Second Requests are a part of expensive and time-consuming antitrust investigations typically issued in the approximately 2 percent of transactions that present significant anticompetitive concerns.  To have several Second Requests within a short period of time in the same industry, particularly in an emerging industry such as cannabis, appeared unusual to many observers.  Recent events have shed light on some possible reasons for DOJ’s heightened focus.…
There is a tension at the heart of modern U.S. cartel enforcement. On one hand is the engine that has been driving most criminal and civil cartel enforcement since the mid-1990s — the Department of Justice’s corporate leniency or “amnesty” program. The modern leniency program offers a relatively simple bargain to the first intrepid cartelist who walks through DOJ’s door: complete criminal amnesty in exchange for complete cooperation.  But, on the other hand, the simplicity of this bargain has historically been complicated by the significant countervailing likelihood of private “follow-on” lawsuits threatening some of the most severe penalties found anywhere…
The Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) recently issued a joint statement (the “COVID-19 Statement”) regarding what constitutes lawful “procompetitive collaborations” between companies to address certain needs for consumers and businesses during the coronavirus pandemic.  It also detailed what constitutes unlawful anticompetitive behavior related to essential and frontline workers and other vulnerable employees.  The DOJ and FTC used this opportunity to send a clear warning to companies who may seek to take advantage of the current pandemic by entering into agreements to restrain competition and employee mobility or lower wages.  Separately, for those companies who are…
On April 4, 2020,  the Department of Justice issued a business review letter allowing collaboration among five distributors of personal-protective equipment (“PPE”), oxygen, and medications. This is the first business review letter issued under the expedited review procedure for streamlining pandemic-related public health efforts issued jointly by the Federal Trade Commission and DOJ on March 24, 2020 (as previously reported here and here). The DOJ turned the request for review around in only five days, but offered few new insights into how the agencies might weigh public-health considerations against potential competitive harms.…
Make no mistake, the antitrust laws remain in full effect.  The leadership of the Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) have made clear that these enforcers “stand ready to pursue civil violations of the antitrust laws, which include agreements between individuals and business to restrain competition through increased prices, lower wages, decreased output, or reduced quality as well as efforts by monopolists to use their market power to engage in exclusionary conduct.” The DOJ also promised to vigorously monitor and prosecute any criminal violations of the antitrust laws, “which typically involve agreements…
The COVID-19 pandemic has triggered worldwide pandemonium and is disrupting business throughout all sectors. It is undeniably a major shock for the global economy. While the need for a coordinated response has been recognised at the highest levels in the EU, this does not mean that the application of competition law is suspended during the crisis.…
This post has been updated as of March 24, 2020. On Monday, March 23, it was reported that the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) were preparing to announce a streamlined procedure through which companies seeking to collaborate on a response to the coronavirus pandemic may obtain an expedited review and approval of their contemplated venture.  (https://www.bloomberg.com/news/articles/2020-03-23/u-s-to-speed-antitrust-reviews-for-firms-teaming-up-on-virus).  Specifically, the DOJ and FTC are expected to jointly commit to processing and completing reviews of coronavirus-targeted collaborations in one week or less.  The agencies may roll out the details as early as Monday.…
The unique EU State aid control law requires, in principle, prior notification by Member States and approval by the Commission of all State aid. During a time of crisis, like the COVID-19 pandemic, EU law allows for a flexible approach for approving urgent State aid. In this post, we discuss the current state of play in the EU and offer some general items to consider for undertakings receiving State aid during this extraordinary time.…
In response to COVID-19, the FTC’s Premerger Notification Office (PNO) just announced several changes for all Hart-Scott-Rodino (HSR) filings going forward.  While these changes have been described as temporary, no specific end date has been identified. Hard copy HSR filings will no longer be accepted, until further notice No HSR filings whatsoever may be submitted on Monday, March 16. Starting at 8:30 a.m. on Tuesday, March 17, HSR filings must be submitted through a new, temporary e-filing system.  That system is not yet operational.  It will require parties to upload documents to a secure FTP site. While this temporary e-filing…
The rapidly evolving COVID-19 (coronavirus) situation is impacting local and global companies, disrupting supply chains, creating volatility in the stock market, and causing great concern in local communities.  As part of the federal government’s response to the coronavirus outbreak, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have announced that they will use their competition and consumer protection enforcement powers to go after offenders taking advantage of the concerns triggered by the COVID-19 outbreak.  The DOJ will focus on “hard-core” Section 1 antitrust violations, like price-fixing of personal health protection products, while the FTC will focus on…
Higher Thresholds For HSR Filings On January 28, 2020, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in Gross National Product (GNP). The new thresholds will become effective on February 27, 2020. Acquisitions that have not closed by the effective date will be subject to the new thresholds.…
Virtually all significant antitrust cases these days have an international component. Markets now are worldwide. Consequently, one of the most frequently litigated—and most important issues—is the extent of U.S. jurisdiction. Which sales are subject to trebling in a U.S. court? Which sales must be pursued elsewhere? Frequently, the key statute is the Foreign Trade Antitrust Improvements Act (FTAIA). The resulting litigation, unfortunately, has not resulted in clear rules or signposts. And, the cases are highly fact-specific. The facts matter.…