Antitrust Insights and Analysis

The Marathon Effort to Enact an Antitrust Whistleblower Statute is Still in the Race

Although proposed legislation to protect and to encourage antitrust whistleblowers has struggled for years to cross the finish line the U.S., there are signs this marathon effort may yet prove successful. While criminal prosecution of antitrust cartels is at the core of U.S. antitrust enforcement policy, there is a missing link in that policy.  If you are a member of an antitrust cartel, the law allows you to...

DOJ Clarifies How it Analyzes No-Poach Agreements

Deputy Assistant Attorney General Michael Murray provided some guidance with his recent remarks at the Santa Clara University School of Law regarding the U.S. Department of Justice’s (“DOJ”) antitrust initiatives with respect to the labor sector.  As Murray discussed, the DOJ has demonstrated an increased interest in prosecuting no-poach agreements in recent years and continues to provide guidance on the...

NCAA May Have Lost Antitrust Case to Student-Athletes, But How Much Did It Really Lose?

Friday’s 104-page ruling in the antitrust case challenging the compensation rules of the National Collegiate Athletic Association (“NCAA”) is not a clear-cut victory for either side. Although Judge Claudia Wilken of the U.S. District Court for the Northern District of California ruled in Alston V. NCAA that the NCAA and its 11 major conferences are violating antitrust law by capping the value of athletic...

Federal Courts Reject Criminal Defendants’ Attempts to Avoid Per Se Standard in Antitrust Prosecutions

Antitrust enforcers have recently notched a pair of significant victories, convincing federal courts in two separate cases to reaffirm the use of the per se standard in criminal antitrust cases. Federal courts have long applied the rule that certain restrictive business practices among competitors, such as horizontal price-fixing, bid rigging, and market allocation—are per se illegal, regardless of any purported...

Court of Appeals’ Decision Upholding AT&T/Time Warner Merger Signals Hurdles in Vertical Merger Enforcement

Vertical mergers among high-tech companies likely became a bit easier today as the U.S. Court of Appeals for the D.C. Circuit rejected the U.S. Justice Department’s effort to overturn the district court ruling that gave a green light to AT&T’s acquisition of Time Warner. As this blog noted, the imminent appellate decision was much anticipated for the signals it would give as to the direction of vertical merger...

Court of Appeals’ Imminent AT&T/Time Warner Decision Could Either Embolden or Discourage DOJ in Scrutinizing Future Vertical Mergers

As AT&T and the U.S. Department of Justice (“DOJ”) await a decision from the U.S. Court of Appeals for the D.C. Circuit that could decide the fate of AT&T’s $85 billion deal to acquire Time Warner, antitrust observers are waiting to see if that decision—which could come as early as today—will consign DOJ’s renewed interest in vertical merger litigation to the dustbin of antitrust history. The Court of...

Germany Launches Novel Antitrust Approach to Combat Competitive Effects of Big Data

In a decision with worldwide implications, the German Federal Cartel Office, the German competition authority, is taking the novel approach of using competition law to curtail Facebook’s use of its users’ personal data. In a decision announced on February 7, 2019, the Federal Cartel Office ruled that Facebook abused its dominance in the German market for social networks “based on the extent of collecting,...

DOJ Antitrust Division Continues Expansion of Amicus Program With Planned Statement of Interest in No-Poach Case

The Antitrust Division of the U.S. Department of Justice (“DOJ”) has filed a notice of intent to file a statement of interest in Danielle Seaman et al. v. Duke University et al., No. 1:15-cv-00462 (M.D.N.C.), the class action that alleges Duke University and the University of North Carolina violated antitrust laws by conspiring to suppress the wages of faculty members through the use of “no-hire” or...

FTC Approval of Staples-Essendant Merger Exposes Fault Lines on Merger Enforcement

The U.S. Federal Trade Commission’s (“FTC”) recent approval of Staples, Inc.’s acquisition of office supply wholesaler Essendant, Inc.—on a party-line three-to-two vote—reveals the agency’s divergent political views on merger enforcement and vertical transactions. On January 28, 2019, Republican Commissioners Simons (FTC Chair), Phillips and Wilson issued a joint statement in support of their votes to...

Federal Court Agrees with FTC in Ruling Qualcomm Must License Standard-Essential Patents to Competitors

The Federal Trade Commission won a key ruling against Qualcomm in federal court on Tuesday that could herald greater limits on tech companies’ ability to unilaterally dictate how they license their standard-essential patents. Judge Lucy Koh of the U.S. District Court for the Northern District of California ruled that Qualcomm must license its standard-essential patents (“SEPs”) for 4G/LTE baseband chips to...