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.
John Kavanagh
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What’s Old is New Again: The FTC’s Embrace of Neglected Tools
By Michael Weiner, John Kavanagh & Travis West on
Posted in Jurisdiction – US
As discussed previously, the FTC under Chair Khan has adopted an aggressive posture toward antitrust enforcement. Although the current FTC agenda draws on some powerful enforcement weapons, the leadership of the FTC believes that additional ammunition is required to reach the full extent of potential anticompetitive behavior and the harms associated with it. To…
Revising the Horizontal and Vertical Merger Guidelines: A New Approach for Antitrust?
By Michael Weiner, John Kavanagh & Travis West on
On January 18, 2022, Lina Khan, the Chair of the Federal Trade Commission (FTC), and Jonathan Kanter, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (DOJ), held a joint press conference to announce that the agencies would be requesting comments on considerations for new horizontal and vertical merger…
DOJ Overcomes Motion to Dismiss No-Poach Antitrust Prosecution
By Patrick Linehan, Damon Kalt, John Kavanagh & Drew Harris on
Posted in Litigation
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…
Draft Policy Statement Updates Guidance for Negotiations and Remedies for Standards-Essential Patents
By John Kavanagh & Michael Weiner on
The US Department of Justice announced last month that it is requesting public comment on an updated draft policy statement on standards-essential patents (SEP). The December 6, 2021 draft statement was issued pursuant to the Executive Order on Promoting Competition in the American Economy on July 9, 2021. The draft statement seeks to modify a…
Ruling in No-Poach/Wage-Fixing Prosecution Opens New Antitrust Frontier
Posted in Litigation
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…
Antitrust Update: Developments at the FTC and DOJ
By John Kavanagh, Michael Weiner & Travis West on
Posted in Litigation, Mergers
The Biden administration has made promoting competition a top priority, as reflected in President Biden’s July executive order on competition. (For a complete description of the executive order and developments in its implementation, please visit Steptoe’s Executive Order on Competition Tracker). This priority is reflected in appointments that President Biden has made to the…
Poaching: The Biden Executive Order and Employment Restrictions in Europe
By Paul Hughes, Charles Whiddington, Michael Weiner, Patrick Linehan, Zoe Osborne, Simon Hirsbrunner & John Kavanagh on
Posted in Jurisdiction - EU, Jurisdiction – US
No-poach and wage-fixing agreements – arrangements between companies seeking to prevent or limit the hiring of each other’s employees, or to suppress the wages and/or benefits of their respective current employees are not only currently under the spotlight in the US, but have also been subject to scrutiny by antitrust authorities in the European Union…
Antitrust Enforcement in the Biden Administration: What We Know from the First 100 Days
By Damon Kalt, John Kavanagh, Michael Weiner & Rachel Peck on
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…
Supreme Court: FTC May Not Seek Restitution Directly in Federal Court
By Damon Kalt, John Kavanagh & Michael Weiner on
Posted in Jurisdiction – US, Litigation
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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