Through recent motions filed in district court and a policy memo issued last year, the U.S. Department of Justice (DOJ) has signaled that it has its sights on instant messages and personal devices as potential sources for uncovering anticompetitive or criminal information. Companies should review their personal device and corporate chat preservation policies and ensure
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The Growing Threat to ESG Initiatives
On Jan. 26, 2023, twenty-four states sued the Department of Labor to block a new rule allowing retirement plans to consider environmental, social, and governance concepts (known as ESG) when administering plan assets.[1] The lawsuit, while notable for its potential impact on Employee Retirement Income Security Act regulations and the administration of retirement plans,
2023 HSR Filing Thresholds and New Filing Fee Structure Announced
On Jan. 25, the Federal Trade Commission (FTC) published a notice in the Federal Register announcing the 2023 filing thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act). The notice also announced the new HSR filing fee structure as mandated by the recently enacted Merger Filing Fee Modernization Act of 2022. The
FTC Seeks to Ban Non-Compete Restrictions in Employment Contracts
Key Takeaways
- The FTC has proposed a new rule under Section 5 of the Federal Trade Commission Act that would significantly ban non-compete agreements between employers and workers.
- If adopted, the Proposed Rule would supersede “inconsistent” state laws and also require employers to rescind certain existing non-compete clauses no later than 180 days after publication
Is This the Beginning of a Sentencing Revolution?
Third Circuit Limits Sentencing Guidelines to Actual Loss: Implications for Fraud and Possibly Antitrust Sentencing
On Nov. 30, 2022, following the U.S. Supreme Court’s 2019 decision in Keiser v. Wilkie and contrary to the guidelines’ own commentary, the Third Circuit decided that the loss enhancement to the fraud guideline in the U.S. Sentencing Guidelines (“USSG”) applies only
Federal Trade Commission’s Historic Attempt to Drive a Mack Truck Through the Sherman Act
Key Takeaways
- The Federal Trade Commission (FTC) issued a historic statement, setting out a new framework for assessing “standalone” claims of “unfair methods of competition” that can be brought by the FTC alone under Section 5 of the FTC Act and that do not independently violate the Sherman, Clayton or Robinson-Patman acts.
- Although the FTC’s
Yer Out (For Now): MLB Dismissed from Antitrust Lawsuit Because of Historic Antitrust Exemption
In a decision that stunned no one (yet will garner plenty of headlines), a federal district court granted a motion to dismiss filed by Major League Baseball (MLB) on the basis of its storied antitrust immunity. Coming almost on the eve of the World Series, this decision (now under appeal) will surely keep the MLB’s
DOJ Antitrust Brings First Criminal Monopolization Case in More Than 40 Years
Key Takeaways
- U.S. v. Nathan Nephi Zito is the first criminal monopolization case in more than 40 years, reversing the Antitrust Division’s practice of pursuing monopolization cases only civilly.
- The elements enumerated in the Zito plea agreement are the same elements required in a civil case, but prosecutors may encounter obstacles trying to prove these elements beyond a
Hospital Mergers: The Future of COPA Immunity
In October 2022, the Federal Trade Commission issued a Public Comment opposing a Certificate of Public Advantage (COPA) for the merger of State University of New York Upstate Medical University (SUNY Upstate) and Crouse Health System, Inc. The FTC’s Public Comment advises the New York State Department of Health that the merger would harm competition,
DOJ Antitrust Division Not Backing Down on Labor
Despite back-to-back losses in the Department of Justice’s (DOJ) first-ever criminal no-poach and wage-fixing cases, the Antitrust Division (the Division) is not backing down from its enforcement focus on labor. In fact, the Division and Assistant Attorney General Jonathan Kanter continue to proudly tout their continued aggressive stance, with Kanter recently stating that the Division