On November 21, 2023, the Federal Trade Commission (“the FTC”) announced its approval of an omnibus resolution authorizing the use of compulsory process for nonpublic investigations concerning products or services that use artificial intelligence (“AI”). Compulsory process refers to information or document requests, such as subpoenas or civil investigative demands, for which compliance is enforceable
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Non-Exclusive: Dual Distribution and Exclusivity
This blog article is relevant to all companies which are parties to a vertical agreement (i.e. an agreement entered into between two parties operating at different levels of trade – typically distribution agreements) concerning the sale or purchase of products or services in the European Union/European Economic Area.…
Antitrust Enforcement Agencies Continue to Target Interlocking Directorate Arrangements
By Bevin Newman & Jake Walker
On August 16, 2023, the Federal Trade Commission (“the FTC”) marked its first enforcement action of the prohibitions on interlocking directorates under Section 8 of the Clayton Act in over 40 years. Section 8 prohibits an officer or director of one firm from simultaneously serving as an officer or director of a competing firm under…
AI Under the Antitrust Microscope: Competition Enforcers Focusing on Generative AI from All Angles
As generative AI becomes an increasingly integral part of the modern economy, antitrust and consumer protection agencies continue to raise concerns about the technology’s potential to promote unfair methods of competition. Federal Trade Commission (“the FTC”) Chair Lina Khan recently warned on national news that “AI could be used to turbocharge fraud and scams” and…
The EU Foreign Subsidies Regulation: New Rules for All Companies Active in the EU
On 12 July 2023, the new EU Foreign Subsidies Regulation (“FSR”) started applying to all non-EU and EU companies and all sectors of the economy. FSR filled a regulatory gap which existed since 1958. The European Commission (the “Commission”) is vested by FSR with wide investigative and decisional powers to prevent any distortions in the…
FTC Modifies Role of Administrative Judges Amid Heightened Agency Scrutiny
By Jake Walker
On June 2nd, 2023, the Federal Trade Commission (“the FTC”) announced modifications to its in-house adjudicative proceedings. Under these new rules, an administrative law judge (“ALJ”) presiding over an administrative hearing can only issue “recommended” decisions that are reviewed automatically by the FTC Commissioners (the “Commission”). The Commission, during their now-automatic review, may affirm the…
Recent Antitrust Leniency Program Revisions Examined in ABA’s 2023 Edition of the Antitrust Cartel Leniency and Sentencing Handbook
The subject of corporate leniency as a tool for combating criminal conduct seems to be top of mind for federal prosecutors. In the last few months, the Deputy Attorney General, Lisa Monaco, and senior enforcers in the Criminal Division, Assistant Attorney General Kenneth A. Polite, Jr. and Deputy Assistant Attorney General Lisa H. Miller, have announced…
Hot Antitrust Enforcement Climate Reaches Private Equity
Antitrust enforcement has been heating up over the last few years in several areas – notably in healthcare and labor.[1] As the antitrust climate intensifies and spreads, private equity (PE) firms are starting to feel the heat, finding themselves the focus of increased antitrust scrutiny. Significantly, antitrust enforcement and litigation risks are moving from…
Six Key Considerations for Transitioning Existing Fossil Fuel Transport, Storage and Electricity Generation Assets to New Uses
The United States is broadening the scope and diversity of its energy mix at a rate and to an extent not seen in a century, if ever. The changes underway provide both important opportunities and critical challenges for owners seeking to repurpose existing assets in a market governed by overlapping federal, state and local regulations.…
DOJ Antitrust Division Cautions SEC on Proposed Equity Market Restructuring
By Ann O'Brien & Jake Walker
On April 11, 2023, the Antitrust Division of the United States Department of Justice (the “DOJ”) issued a public comment on four proposed rules promulgated by the United States Securities and Exchange Commission (“the SEC”). The four proposed rules target national market system (“NMS”) stocks by (1) expanding disclosures of order execution information (“Rule 605…