Antitrust and Federal Regulation

Avanci’s pool retains its 5th Circuit win, in a slightly different way, after an unusual turn of events where the panel rescinded its prior opinion and issued a new one.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

The Federal Trade Commission (“FTC”) and the Department of Justice Antitrust Division (“DOJ”) just announced that they will host a virtual workshop on December 6 and 7, 2021, to discuss the agencies’ efforts to promote competition in labor markets and worker mobility.

Mintz’s antitrust team discussed what you should know as you conduct your business and plan your transactions and investments.

Read about the FTC Bureau of Competition’s new process reforms to make the merger review process more rigorous and streamlined amid the surge in mergers and HSR notifications.

Joe Miller returns to Integrity Through Compliance to share his perspective on what changes president Biden may make, or encourage Congress to make, regarding antitrust enforcement.

Joe Miller and Bruce Sokler, Co-Chairs of Mintz's Antitrust Practice, discuss President Biden’s July 9 executive order, which called for a government-wide focus on antitrust competition issues and identified 72 initiatives across several industries.

In this episode, AMI’s Dionne Lomax speaks with Joe Miller. They discuss recent developments in antitrust compliance — specifically, compliance with government consent decrees and what might be occurring behind the scenes at federal enforcement agencies once a company has settled antitrust charges.