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Antitrust Insights and Analysis

Biden’s Pick for Top Antitrust Enforcer is Likely to Continue DOJ’s Increasing Focus on Labor Markets

Posted  10/29/21
By Janice Johnson
President Biden’s nominee for his administration’s top antitrust enforcer appears likely to continue the trend of increased enforcement efforts in labor markets. At his Senate confirmation hearing on October 6, 2021, Jonathan Kanter testified that, “If the antitrust laws are not working to protect competition to the benefit of workers, then the antitrust laws are not working.” Kanter is President Biden’s

FTC Restores an Old Fence With Restoration of Prior-Approval Policy for Future Mergers by Anticompetitive Dealmakers

Posted  10/28/21
By Allison F. Sheedy
The FTC announced this week that it is restoring a prior-approval policy that requires firms subject to FTC orders resolving  anticompetitive mergers to obtain prior approval from the FTC before closing future transactions. Companies settling an anticompetitive deal by entering into a consent order with the FTC will need the agency’s blessing to close any further acquisitions in each affected market for at least...

New York Trustbusters Are Being Deputized to Bust Abusive Employers

Posted  10/27/21
New York’s pending overhaul of its antitrust law is in the forefront of a nationwide antitrust revival that seeks to use competition policy to combat labor market abuses. This post examines how New York’s proposed 21st Century Antitrust Act (Senate Bill S933A)—which has already passed the State Senate—aspires “to ensure that our labor markets are open and fair” through a renewed focus on the harmful...

Brussels on the Hudson: New York Imports European Merger Control

Posted  10/18/21
By Ethan E. Litwin, Jeffrey I. Shinder
In 2004, the European Commission re-wrote its Merger Regulation, making its well-established dominance test subservient to a U.S.-style significant lessening of competition (SLC) standard.  In 2021, New York State is poised to do the opposite: legislating market dominance as the touchstone for the evaluation of mergers that affect the 10th largest economy in the world.  The similarities between the pre-2004 European...

Standard-Essential Patents Are Being Reintroduced to Antitrust Standards With the Welcome Demise of the “New Madison” Approach

Posted  10/15/21
By David Golden
The U.S. Department of Justice’s (“DOJ”) hands-off approach to antitrust enforcement involving standard-essential patent (“SEP”) licensing may soon be relegated to the dustbin of history, where it belongs. DOJ’s Antitrust Division is currently re-evaluating the Department’s December 2019 Policy Statement on Remedies for SEPs, which largely removed SEPs from antitrust scrutiny under former Assistant...

National Association of Realtors Spars with Justice Over Unapproved Settlement in Battle Over Commission-Related Policies

Posted  10/12/21
By Harrison J. McAvoy
Last month, the National Association of Realtors (“NAR”), the largest real estate industry trade association in the United States, filed suit against the U.S. Department of Justice (“DOJ”), seeking to end an investigation into policies governing multiple listing services (“MLSs”) that reduce competition among real estate brokers. The petition, filed in federal court in Washington D.C., claims that the...

The Five Developments You Should Follow if You Want to Know What Antitrust Enforcers Are Doing in the Fields of Agriculture

Posted  10/11/21
By Taline Sahakian, Alan H. Schwartz
While you may have noticed how expensive your recent trips to the supermarket have become, have you thought about why?  Is it because of the pandemic? Shipping problems?  Is it due to problems with the food supply? The short answer is “all of the above,” but, according to the Biden administration, antitrust abuses—including consolidation in the agriculture industry—could also be playing a major role in...

DOJ and States Seek to Halt Takeoff of American Airlines and JetBlue’s Joint Venture

Posted  09/28/21
By James J. Kovacs
The United States Department of Justice, six states and the District of Columbia recently unveiled an innovative antitrust complaint filed in the U.S. District Court for the District of Massachusetts seeking to dissolve American Airlines and JetBlue’s “Northeast Alliance.” While the complaint characterizes the agreements between the two airlines as a “de facto merger,” the antitrust enforcers take the...

Consumers Are Poised to Gain an Advocate for Privacy Rights at the Federal Trade Commission

Posted  09/24/21
The Biden administration has sent a strong signal it is serious about regulating technology behemoths with its latest pick for Commissioner of the Federal Trade Commission, Alvaro Bedoya—a leading privacy advocate. On September 13, 2021, President Biden nominated Bedoya—Visiting Professor of Law and Founding Director of the Center on Privacy and Technology at Georgetown University Law School—for the final...

Antitrust Has Failed

Posted  09/22/21
By Ethan E. Litwin
By any measure, the last 40 years of U.S. antitrust enforcement has been an abject failure. Despite a statutory regime supposedly designed to protect competition and protect consumer welfare, public antitrust enforcers have failed to achieve either goal.  Responsibility for this gross dereliction of duty is decidedly non-partisan: For more than 20 years, enforcers loosely associated both political parties have...
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