Dan Foix, Carl Hittinger and Tyson Herrold Author Article on Efforts to Renew Enforcement of Largely Dormant Act

Partners Dan Foix and Carl Hittinger and Counsel Tyson Herrold authored a Feb. 27, 2023, article for Westlaw Today titled “The FTC considers reviving Robinson-Patman enforcement.”

The authors write that the Federal Trade Commission, which has not attempted to enforce Robinson-Patman in decades,“will look for what it views as a clear violation that it can use to create precedent and build enforcement.” But, they add, the FTC is “unlikely to receive a warm welcome in federal court.”

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DOJ Likely to Scrutinize Personal Device and Corporate Chat Policies of Investigation Targets

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 they have the ability to preserve such information in the event of a government investigation or civil litigation.

In September 2022, the DOJ announced revisions to its corporate criminal enforcement policies and practices. The changes in policy make clear that the DOJ intends to pursue discovery and preservation abuses in connection with its cases and investigations. These changes will likely have ripple effects on private party litigation.

The DOJ stated that “[c]ompanies seeking credit for cooperation must timely preserve, collect, and disclose relevant documents located both within the United States and overseas.” In connection with that, the DOJ acknowledge that “[t]he ubiquity of personal smartphones, tablets, laptops, and other devices poses significant corporate compliance risks, particularly as to the ability of companies to monitor the use of such devices for misconduct and to recover relevant data from them during a subsequent investigation. The rise in use of third-party messaging platforms, including the use of ephemeral and encrypted messaging applications, poses a similar challenge.” Accordingly, the DOJ expects “all corporations with robust compliance programs [to] have effective policies governing the use of personal devices and third-party messaging platforms for corporate communications, . . . provide clear training to employees about such policies, and . . . enforce such policies when violations are identified.”

This policy applies to every company that could face a DOJ inquiry and is aimed at ameliorating the DOJ’s growing frustration with its inability to obtain relevant texts and instant messages from target subjects.

The DOJ is also taking a tough stance in its active cases on instant message deletion. Last month, the DOJ filed a motion against Google in its case pending in D.C. District Court for sanctions and an evidentiary hearing to determine an appropriate remedy for a policy that enforcers say resulted in Google automatically deleting most employee chats after 24 hours.

The DOJ contends that the auto-deletion policy amounted to an “intentional and repeated destruction” of written materials in violation of the Federal Rules of Civil Procedure and a discovery order entered in the case.

The motion states that Google had the ability to turn off its auto-deletion and to preserve documents for from 30 days to 18 months, but Google failed to do so. Instead, Google left it up to individual employees to take steps to preserve relevant chats beyond the 24-hour auto-deletion period. The motion says that court rules required Google to stop automatically deleting chats in mid-2019, when the company should have reasonably anticipated litigation, and because of Google’s failure, the DOJ is left with a four-year gap in relevant information.

Google has also found itself in hot water over its alleged failure to preserve chats in civil ligation pending in the Northern District of California. In that case, In re: Google Play Store Antitrust Litigation, No. 3:21-md-02981, the judge said he was open to sanctioning Google for failing to preserve employees’ online chats and failing to inform plaintiffs’ counsel that chats were deleted after 55 days unless employees turned their chat history on. Plaintiffs argued that preserved email exchanges showed that executives would switch to chat when they wanted to communicate about highly confidential information.

Reviewing corporate personal device and chat policies in connection with an antitrust compliance program would be prudent given the DOJ’s recent statements and actions targeting this area.

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, may serve as a warning shot in the debate over ESG’s intersection with antitrust law.

ESG refers to a framework in which companies can consider environmental, social and governance issues as a potential measure of value. In practice, this might appear as actions to combat climate change, commitments to improving the community where the company is based or implementing corporate governance reforms. Many companies are now including ESG issues in their corporate disclosures, and investment firms are offering funds that invest based on ESG strategies.

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2023 HSR Filing Thresholds and New Filing Fee Structure Announced

US money

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 new thresholds and filing fee structure will apply to all HSR filings submitted on or after Feb. 27, 2023.

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FTC Seeks to Ban Non-Compete Restrictions in Employment Contracts

Federal Trade Commission

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 of the adopted rule.
  • The FTC also recently filed enforcement actions against three companies and multiple executives for imposing non-compete restrictions on workers, and obtained consent orders.

On Jan. 5, the Federal Trade Commission voted 3-1 to propose a new rule under Section 5 of the Federal Trade Commission Act that would largely ban non-compete agreements between employers and employees. If passed, the Proposed Rule would become a federal regulation making it an “unfair method of competition” for an employer “to enter into or attempt to enter into,” “maintain” or “represent to a worker that the worker is subject to a non-compete clause.” A preamble to the Notice of Proposed Rulemaking cites the harm that non-competes purportedly inflict on (i) workers whose compensation and mobility are stymied by non-competes and (ii) new business enterprises that find it difficult to break into an industry where skilled labor is locked into existing employment arrangements.

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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 to “actual loss” and not to “intended loss.” This distinction, the limitation to actual loss, is enormous, particularly for criminal defendants whose conduct caused little to no actual loss, despite any intent to do so. If other circuits follow suit, if courts apply this reasoning to other sections of the USSG, or if this case makes its way to the Supreme Court, the implications could be even more significant for all federal sentencing. The Third Circuit may have begun a revolution in white collar federal sentencing.

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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 new interpretation of Section 5 is far broader and more aggressive than it has been in the past, it is unclear what conduct the FTC will deem “unfair” going forward and what criteria it will use to make that determination.
  • One commissioner dissented from the FTC’s statement, fearing that its unclear framework will create uncertainty for businesses, undermine consumer welfare and competition, and delegitimize the FTC’s enforcement efforts.

Following its repudiation of its prior enforcement regime in July 2021, the FTC on Nov. 10 issued a Statement Regarding the Scope of “Unfair Methods of Competition” Under Section 5 of the Federal Trade Commission Act (Statement). The Statement, however, creates significant uncertainty for businesses seeking to predict (1) what conduct will be deemed by the FTC to run afoul of Section 5 and (2) what analytical structure the FTC will use to make that determination. We have considerable experience analyzing and successfully litigating the FTC’s authority under Section 5. We will continue to monitor this significant development as it unfolds and provide additional client alerts along with our analysis.

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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 antitrust exemption, unique for a sports league, front and center as Congress investigates its effects and considers legislation to eliminate it.

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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 reasonable doubt to a lay jury in future criminal monopolization cases.
  • It remains to be seen if Antitrust Division prosecutors will seek jail time for Zito and how the court would calculate an appropriate sentence, as the sentencing guidelines contemplate conspiratorial conduct among horizontal competitors.

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Hospital Mergers: The Future of COPA Immunity

Open Plan Medical Hospital Ward with 4 beds ready for patients.  Specially prepared for a pandemic.

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, and more generally reflects the Commission’s continued hostility to COPAs. So what are COPAs, and why is the FTC so critical of them?

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