Jurisdiction – US

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A recent Seventh Circuit opinion by Judge Easterbrook held that no-poach agreements, absent valid ancillary restraints, can be per se illegal. Per se violations of the antitrust laws are inherently illegal—meaning no defenses or justifications are available. They have traditionally included conduct like horizontal price fixing, bid rigging, and market allocation. 

This is the first appellate opinion to reach the conclusion that no-poach agreements can be per se violations. As the Department of Justice Antitrust Division (DOJ) has spent the past seven years arguing that no-poach agreements are criminal violations of the antitrust laws, the opinion could empower the DOJ to bring more no-poach cases, given that it must establish an antitrust violation is a per se violation for criminal cases. This opinion also fires a warning shot at companies that use no-poach clauses in franchise agreements. Under the principles described in the opinion, many no-poach clauses in that type of agreement may be per se illegal.…

Continue Reading Seventh Circuit: No-Poach Agreements May Be Per Se Illegal

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…

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…

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…

President Biden’s unprecedented July 9, 2021, Executive Order 14036 represents a potential watershed moment in U.S. competition policy. The wide-ranging Executive Order (EO) includes 72 initiatives that aim to enforce existing antitrust laws and other consumer protection regulations, to be undertaken by at least 15 federal departments, offices, and agencies. The Biden Administration’s stated hope is that these efforts will drive down prices for consumers, increase wages for workers, and facilitate innovation.
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Continue Reading Biden Administration Calls for Whole-of-Government Approach to More Vigorous Antitrust Enforcement

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…

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