Tag Archives: DOJ

Franchise No-Poach Agreements: Is Reform on The Horizon?

Photo of Jeffrey MartinoPhoto of Tyson HerroldBy Jeffrey Martino and Tyson Herrold on Posted in DOJ
In 2016, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued Joint Guidance for Human Resource Professionals warning that no-poach agreements restricting employee hiring may violate the antitrust laws.[1] That guidance, along with pre-guidance litigation, has established some clear ground rules. Naked no-poach agreements are per se illegal under §1 of the … Continue Reading

Big Day for Big Tech: CEOs Testify in House Antitrust Hearing

Photo of Ann O'BrienPhoto of Joshua JowdyBy Ann O'Brien and Joshua Jowdy on Posted in Technology
On Wednesday, July 29, 2020, the House Judiciary Committee’s Subcommittee on Antitrust conducted its sixth hearing into online platforms and market power, welcoming as witnesses the chief executive officers of Amazon, Apple, Google, and Facebook. The hearing lasted more than five hours and was styled as “Examining the Dominance of Amazon, Apple, Facebook and Google.” … Continue Reading

DOJ Takes a Stance on Section 230 Reform that Could Place Additional Burdens on Online Platforms

Photo of Darley MawPhoto of Ann O'BrienPhoto of Jeffrey MartinoPhoto of Linda A. GoldsteinBy Darley Maw, Ann O'Brien, Jeffrey Martino and Linda A. Goldstein on Posted in DOJ
The Department of Justice (DOJ) recently outlined proposed reforms to Section 230 of the Communications Decency Act of 1996.[1] Section 230 has been in place since the early days of the Internet and protects online platforms from liability for certain third-party posts. It has recently become a point of contention between Big Tech and the … Continue Reading

DOJ Declines to Challenge New Bidding Platform for Commercial Advertisement Producers

Photo of Jeffrey MartinoBy Jeffrey Martino on Posted in Advertising
On April 16, the Department of Justice (DOJ) announced that it would not challenge a proposal by the Association of Independent Commercial Producers (AICP) to operate an online platform for advertisers and advertising agencies to solicit bids from companies that produce commercials for television, the internet and other media platforms. The DOJ stated its position … Continue Reading

Fuel Supply Bid-Rigging Prosecution Highlights Interplay of Whistleblower Statute and Antitrust Division’s Leniency Program

Photo of Sonny A. CarpenterPhoto of Jeffrey MartinoBy Sonny A. Carpenter and Jeffrey Martino on Posted in Big-Rigging
On April 8, the Department of Justice (DOJ) Antitrust Division (Division), the DOJ Civil Division and the U.S. Attorney’s Office for the Southern District of Ohio (collectively, the Government) announced a civil antitrust and False Claims Act (FCA) complaint and concurrent settlement regarding a bid-rigging conspiracy that targeted fuel supply contracts for U.S. military installations … Continue Reading

Combating COVID-19 Through Competitor Collaboration

Photo of Tyson HerroldPhoto of Brady CumminsBy Tyson Herrold and Brady Cummins on Posted in FTC
Join members of the BakerHostetler Antitrust and Competition Team on Monday, April 13, 2020 for a webinar where they will examine criminal and civil antitrust risks and the best practices businesses should follow to protect themselves, including an exploration of the immunities offered by the Defense Production Act, the Pandemic and All-Hazards Preparedness Act and … Continue Reading

COVID-19 Antitrust Agency Announcements and Procedural Changes

Photo of Brady CumminsBy Brady Cummins on Posted in Antitrust & Politics, FTC
Over the past several weeks, the U.S. antitrust enforcement agencies – the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) – have made several public announcements regarding changes to antitrust investigations and regulatory processes in response to the COVID-19 pandemic. In addition to changes to filing and meeting processes, … Continue Reading

Executive Order Addresses DOJ’s Fight Against Hoarding Activity

Photo of Rachel Palmer HooperBy Rachel Palmer Hooper on Posted in Antitrust Litigation
On the afternoon of March 23, 2020, United States Attorney General William Barr participated in the Coronavirus Task Force press briefing. Attorney General Barr revealed that, on March 23, President Trump issued an executive order allowing prosecution of hoarding that threatens the supply of necessary medical and health resources.[1] Once specific materials are designated as … Continue Reading

Should Antitrust Laws Tackle Privacy Issues? DOJ and State AGs Continue Google Investigations in Response to Privacy Concerns

Photo of Darley MawBy Darley Maw on Posted in Data Privacy
Months have passed since it was first revealed in July 2019 that the Department of Justice (DOJ), in response to various stakeholders’ concerns, was conducting a review into certain “market-leading online platforms” and whether they engaged in antitrust violations.[1] U.S. Attorney General William Barr reiterated that the government was “taking a closer look at the … Continue Reading

Is Big Chicken Cooked? DOJ Intervenes in Price-Fixing Investigation

Photo of Carl HittingerPhoto of Jeanne-Michele MarianiBy Carl Hittinger and Jeanne-Michele Mariani on Posted in Articles
Pork is the other white meat, beef is what’s for dinner, and chicken is now under investigation by the Department of Justice for possible antitrust violations. Looks like the DOJ is back in the criminal cartel investigation business. In June, the DOJ intervened in a class action antitrust lawsuit, filed in the U.S. District Court … Continue Reading

The FTC Is Looking You Up and Down(stream): Insights From the Acting Director of the Bureau of Competition on Antitrust Enforcement for Vertical Mergers

Photo of Bill DeVinneyBy Bill DeVinney on Posted in FTC, Merger
Since Assistant Attorney General Delrahim’s inaugural remarks on vertical mergers (covered here), the business press has been atwitter about the antitrust enforcement agencies’ views of those mergers. Bruce Hoffman, the acting director of the Federal Trade Commission Bureau of Competition, recently delivered a speech explaining that the FTC will continue to review vertical mergers as … Continue Reading

New Antitrust Division Chief Prioritizes Regulation of Standard Setting Organizations

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Articles, Patents
As we discussed in our May 2017 article, the current head of the DOJ’s Antitrust Division, Makan Delrahim, brings considerable intellectual property experience to the division. Delrahim started his legal career at the Office of the U.S. Trade Representative as deputy director for intellectual property rights. He later served on the Intellectual Property Task Force … Continue Reading

The Trump DOJ’s View on Merger Enforcement and Remedies Explained

Photo of Danyll FoixBy Danyll Foix on Posted in Merger Review
President Trump’s head of the Department of Justice’s Antitrust Division, Makan Delrahim, recently explained that the division will cut back on behavioral commitments such as consent orders regulating conduct and will instead rely more on structural changes such as divestitures to remedy merger concerns. This could signal significant changes in how the DOJ resolves concerns … Continue Reading

Presidential Powers and Antitrust Politics: Part Three

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles
In July and August, we discussed the president’s role in setting antitrust policy at the Department of Justice, Antitrust Division. Specifically, we pointed out that presidents routinely face competing domestic and foreign policy challenges that require a delicate balance and flexible approach to antitrust enforcement. For example, President John F. Kennedy directed the DOJ to … Continue Reading

The ‘Failing Firm’ Defense and How Not to Lose It, Article Explains

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, Merger, Merger Review
Law360 featured an insightful article today on a recently unsealed court opinion blocking the $367 million merger of rival nuclear waste processing companies. The court blocked the merger, while rejecting the parties’ argument that the deal should be approved because otherwise the acquired firm would collapse and the market would suffer. The merging companies did not … Continue Reading

Trump’s Pick for Department of Justice Antitrust Division Chief

Photo of Carl HittingerPhoto of Tyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles
Last month we discussed Supreme Court Justice Neil Gorsuch’s confirmation hearings. Specifically, we noted the Senate Judiciary Committee’s failure to nail Gorsuch down on key antitrust issues, including issues he handled as an experienced antitrust lawyer and decided as a judge on the U.S. Court of Appeals for the Tenth Circuit, which we also wrote … Continue Reading

“And they’re closing all the factories down”* — Going Dark During a Merger Review

By Jonathan Lewis on Posted in Merger, Merger Review
Demand in your industry has been declining for years, the decline is projected to continue for the foreseeable future, and you are one of the few cost-effective manufacturers around. You just inked a deal to buy a competing manufacturer, and you are working hard to get your deal cleared through the merger review process. But … Continue Reading

Clear Expectations: DOJ Outlines Tenets of an Effective Antitrust Compliance Program

Photo of Carl HittingerPhoto of George StamboulidisBy Carl Hittinger, George Stamboulidis and Erik Raven-Hansen on Posted in Antitrust Compliance
There has never been a greater emphasis on policing anticompetitive behavior worldwide. Dozens of countries have instituted effective and aggressive cartel enforcement programs following a trend of increased global enforcement, and criminal antitrust fines in the United States alone exceeded $1 billion in both 2013 and 2012. [1] Prison sentences up to 10 years have also been … Continue Reading

Are You Facing the Prospect of a Merger Investigation?

Photo of Gilbert S. KeteltasPhoto of James A. ShererBy Jonathan Lewis, Gilbert S. Keteltas, Karin Scholz Jenson and James A. Sherer on Posted in Discovery, Government Investigations, Merger Review
If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What is TAR? TAR, a relatively new entrant into the world of litigation and investigations, is an iterative process in which human subject … Continue Reading

To Report, or Not to Report, Your Non-Reportable Transaction Is the Question

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review, Premerger Notification
Just because a proposed transaction does not have to be reported in advance to the Department of Justice (“DOJ”) or the Federal Trade Commission (“ FTC”) because it falls below the Hart-Scott-Rodino (“HSR”) Act size of transaction threshold (currently$75.9 million), you are not out of the woods.  The growing list of companies defending antitrust challenges … Continue Reading

So, You Want to Share Your Technical Cyber Threat Information with Your Neighbors?

Photo of Pamela Jones HarbourPhoto of Gerald J. FergusonPhoto of Theodore J. Kobus IIIBy Jonathan Lewis, Pamela Jones Harbour, Gerald J. Ferguson and Theodore J. Kobus III on Posted in Data Privacy
Echoing guidance previously given to a nonprofit organization looking to exchange certain cybersecurity information, including exchanging actual real-time cyber threat and attack information, and others planning to exchange information concerning remediating the Y2K problems, the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) recently released a joint “Antitrust Policy Statement on Sharing of Cybersecurity … Continue Reading

Sometimes Merger Fixes Are as Close as the End of Your Nose

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review
When it comes to negotiating merger remedies with federal antitrust enforcement agencies, the Department of Justice and the Federal Trade Commission each have guides or statements that may help.  But as good as their guidance may be, sometimes the fix for a merger is as close as the end of your nose. Back on July … Continue Reading
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