Antitrust

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.

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.

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.

In a span of a week the NLRB signed Memoranda of Understanding (“MOU”) with both the Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division.  These agreements come just over a year after President Biden issued an “Executive Order on Promoting Competition in the American Economy,” which called on several federal agencies to address competition issues, and included a mandate for agencies to “coordinate, promote, and advance Federal Government efforts to address overconcentration, monopolization, and unfair competition in or directly affecting the American economy.”  While the NLRB was not explicitly identified in the Executive Order (and the DOJ and FTC were), these recent partnerships unmistakably indicate that labor issues and anti-competition issues are inextricably linked, and the NLRB’s willingness to collaborate with other federal agencies to carry out its mandate under the National Labor Relations Act.  Moreover, these recent efforts also represent a clear step by President Biden to follow through on his campaign promise to strengthen unions, worker organizing efforts, and collective bargaining.  Mintz attorneys Evan Piercey, Tinny Song and Richard Block discuss these MOUs in greater detail below and provide some takeaways for employers and business leaders. 

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.

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.

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.

This alert covers the FTC’s increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), as amended.

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.

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.

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.

The DOJ is requesting public comment on a new draft policy concerning licensing negotiations and remedies for standards-essential patents (SEPs) subject to voluntary F/RAND commitments recently jointly issued by the U.S. Patent & Trademark Office (USPTO), the National Institute of Standards and Technology (NIST), and the U.S. Department of Justice, Antitrust Division (DOJ)(collectively, “the Agencies”).  The Agencies have requested comment on eleven questions until the comment period closes January 5, 2022.