Damon Kalt

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Yesterday (July 19, 2023), the DOJ Antitrust Division and the FTC released the long-anticipated proposed Merger Guidelines. As has also been long-anticipated, the proposed Guidelines reflect a much-stiffened enforcement philosophy. Throughout the text, the proposed Guidelines provide citations to Supreme Court cases from the 1960s and 1970s (and some even older) that will send…

In a yet another setback for the U.S. Department of Justice’s (DOJ) ongoing effort to prosecute labor-side violations of the Sherman Act, District of Connecticut Judge Victor A. Bolden granted a motion for a judgment of acquittal on April 28, 2023 in United States v. Patel. The order, which was entered before the jury…

On January 23, 2023, a federal district court approved a pretrial diversion agreement between the Department of Justice (DOJ) and Ryan Hee, a former regional manager for a healthcare staffing company. The deal, which will likely result in Hee walking away without a conviction, is yet another lackluster result for DOJ’s thus-far largely unsuccessful effort to criminally prosecute alleged anticompetitive conduct in the labor markets.

Indeed, despite a spate of victories at the motion to dismiss stage (covered in our previous posts here, here, and here), DOJ has yet to secure a labor-side Sherman Act conviction at trial. Years after its initiation, DOJ’s effort has yielded only two convictions.[1] The pretrial diversion agreement with Hee does little to change this.…

Continue Reading With Pretrial Diversion Agreement, DOJ’s Antitrust Division Achieves Another “Meh” Victory In Its Continued Effort to Police Labor Markets

On January 23, 2023, the Federal Trade Commission (“FTC”) announced updated size-of-transaction thresholds for premerger notification (Hart-Scott-Rodino or “HSR”) filings, as well as new HSR filing fees and new de minimis thresholds for interlocking officer and director prohibitions under Section 8 of the Clayton Act.

The HSR filing thresholds, which are revised annually based on…

On October 31, 2022, Judge Florence Pan, now on the D.C. Circuit but sitting by designation in the District Court of the District of Columbia, delivered a “treat” to the Department of Justice (DOJ) and a “trick” to Penguin Random House by blocking its $2.18 billion purchase of rival publisher Simon & Schuster.  The opinion, which was released on November 7, 2022, represents a comprehensive endorsement of the DOJ’s monopsony theory of the case and a complete rejection of the defendants’ counterarguments.  After a string of defeats, the case marks the first win for the DOJ under the Biden administration in a litigated merger challenge.…

Continue Reading DOJ Blocks the Penguin/Simon & Schuster Deal:  A Signature Antitrust Win for the Biden Administration

Last month, the U.S. Department of Justice’s (DOJ) Antitrust Division announced that seven directors from the boards of five companies resigned in response to concerns that the directors’ roles violated the prohibition against interlocking directorates under Section 8 of the Clayton Act.1  These resignations follow previous statements by the DOJ that it intended…

A federal district court in Colorado last week handed the Department of Justice (DOJ) its second victory in its fight to criminally prosecute allegedly unlawful labor agreements, holding that alleged non-solicitation (or “no poach”) agreements among the defendants and their competitors constituted per se violations of Section 1 of the Sherman Act.

The ruling is…

One year after the first criminal indictment for wage-fixing, a Texas federal district court has ruled that an agreement to fix wages is a per se violation of Section 1 of the Sherman Act.

While over the last century the Supreme Court and lower federal courts have developed a robust body of case law interpreting…

Steptoe’s Antitrust practice hosted a complimentary webinar on antitrust enforcement in the Biden administration. Click here to access the recording. 

During the webinar, the team compared and contrasted enforcement priorities and actions from the Trump administration with the positions the Biden administration might take that are informed by campaign proposals and actions so far. The…

As we predicted in Steptoe’s client webinar last week on “Antitrust Enforcement in the Biden Administration – What We Know from The First 100 Days,” on April 22, 2021 the US Supreme Court put an end to the Federal Trade Commission’s (FTC) longstanding practice under § 13(b) of the FTC Act of seeking disgorgement or restitution orders in cases brought by the agency in federal courts.
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Continue Reading Supreme Court: FTC May Not Seek Restitution Directly in Federal Court