On Monday April 13, 2020, DOJ and the FTC issued a joint statement warning employers that COVID-19 does not provide a reason to tolerate anticompetitive conduct that harms workers. The agencies said that they are on alert for collusion and other anticompetitive conduct in labor markets during the crisis. They are focused on agreements to
interIn this briefing, we describe how certain employment practices, such as no-poach or wage-fixing agreements, may infringe competition law, a topic that has recently taken centre stage in the US and is also firmly, although more discretely, on the radar of antitrust authorities in Europe, but perhaps not yet on that of companies. Here is why it should be.
Continue Reading New Year’s resolution for EU antitrust compliance teams: “Putting HR practices on my radar screen”
In an unanimous decision, the Supreme Court has gutted the Second Circuit’s rule on deference to a foreign government’s interpretations of its law, holding that a federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord “respectful consideration” to a foreign government’s submission, but a court “is not bound to accord conclusive effect” to these statements.
The case is Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., which began as a multi-district class action alleging price fixing claims vitamin C exports sold to U.S. companies. Initially, plaintiffs won at a jury trial after the district court refused to credit the Chinese government’s statements that it compelled the defendants to fix the price and limit the supply of vitamin C. Then, the Second Circuit reversed, holding that the district court was “bound to defer” to the Chinese government’s interpretation of its laws when the latter “directly participates” in U.S. proceedings through a “sworn evidentiary proffer regarding the construction and the effect of its laws and regulations,” as long as it is reasonable under the circumstances presented.
As previewed in our earlier analysis, this case has important repercussions for any business involved in cross-border transactions. We explore these further below in light of the Supreme Court opinion.
In an increasingly interconnected world, businesses that conduct cross-border transactions will continue to navigate complicated and thorny legal regimes. As long as full compatibility between these regimes is unrealized, the doctrine of international comity will remain alive and well in U.S. litigation. Comity is a choice-of-law principle that concerns the extent “to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation.” Comity is different from other closely-related doctrines like the act of state doctrine (a defense designed to avoid judicial inquiry into state officials’ conduct as opposed to private actors) and the foreign sovereign compulsion doctrine (a defense where “corporate conduct which is compelled by a foreign sovereign” is also protected from liability “as if it were an act of the state itself”).
This article discusses one flashpoint area in comity analysis—the question of what deference to give to a foreign sovereign’s interpretation of its own law, a pending question now before the Supreme Court. Adherence to one set of laws may or may not affect a court’s decision to abstain from jurisdiction. In the United States, circuit courts disagree about the degree of deference that should be given to foreign sovereigns who offer their own interpretations of their laws in litigation. For instance, the Ninth and Second Circuits have given a strong degree of deference to such interpretations, with the Second Circuit recently stating that it is “bound to defer” to such statements. In contrast, the Sixth and D.C. Circuit past approaches show that they do not always compel strong deference to a foreign government’s interpretation of its laws.
Please join Steptoe’s Antitrust Team on Wednesday, November 1, for an in depth discussion of criminal antitrust enforcement against employee no-poaching agreements. As detailed in our earlier blog post, on September 12, two high-level officials of the US Department of Justice (DOJ), Antitrust Division confirmed the Trump Administration’s continued enforcement efforts against agreements…
Find more interesting content in our Antitrust News & Briefs on the Steptoe website, where we provide you with more in-depth analyses on current antitrust & competition developments in the EU, UK, and the US. See below for some of our most recent publications.
Intel: ‘A Whole New World’
The European Court of Justice just…
On September 12, Andrew Finch, the Acting Assistant Attorney General for Antitrust in the U.S. Department of Justice, confirmed the Trump Administration’s commitment to the criminalization of agreements among companies not to “poach” each other’s employees and agreements on employees’ wages, policies advanced significantly during the Obama Administration.
Continue Reading Trump DOJ Confirms Criminal Enforcement against Employee No-Poaching and Wage-Fixing Agreements
Steptoe partner Anthony J. LaRocca authored an article titled “Turning The Corner: The Internet Of (Moving) Things” for Competition Policy International. The article explores the intersection between the development of the Internet of Things and competition law, both from a US and a EU perspective. The article is available here.
As part of its “aggressive agenda” of enforcement and outreach regarding the professional licensing systems that regulate an FTC-estimated 25%-30% of jobs nationally, the Economic Liberty Task Force held a public roundtable on July 27 in Washington, DC. The Task Force, which was launched by Maureen K. Ohlhausen shortly after she took over as Acting Chairman early this year, was created—in part—to identify unnecessary and overbroad occupational licensing and prioritize the roll back of such regulations.
Continue Reading FTC’s Economic Liberty Task Force Employs Roundtable on Occupational Licensing Reform