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FTC Seeks to Ban Non-Compete Restrictions in Employment Contracts

Photo of BakerHostetlerPhoto of Carl HittingerPhoto of Joyce Ackerbaum CoxPhoto of Tyson HerroldPhoto of Christine M. KennedyBy BakerHostetler, Carl Hittinger, Joyce Ackerbaum Cox, Tyson Herrold and Christine M. Kennedy on Posted in Alert
Key Takeaways On Jan. 5, the Federal Trade Commission voted 3-1 to propose a new rule under Section 5 of the Federal Trade Commission Act that would largely ban non-compete agreements between employers and employees. If passed, the Proposed Rule would become a federal regulation making it an “unfair method of competition” for an employer … Continue Reading

Is This the Beginning of a Sentencing Revolution?

Photo of BakerHostetlerBy BakerHostetler on Posted in Alert
Third Circuit Limits Sentencing Guidelines to Actual Loss: Implications for Fraud and Possibly Antitrust Sentencing On Nov. 30, 2022, following the U.S. Supreme Court’s 2019 decision in Keiser v. Wilkie and contrary to the guidelines’ own commentary, the Third Circuit decided that the loss enhancement to the fraud guideline in the U.S. Sentencing Guidelines (“USSG”) applies only … Continue Reading

DOJ Antitrust Brings First Criminal Monopolization Case in More Than 40 Years

Photo of Carl HittingerPhoto of BakerHostetlerBy Carl Hittinger and BakerHostetler on Posted in Alert
Key Takeaways U.S. v. Nathan Nephi Zito is the first criminal monopolization case in more than 40 years, reversing the Antitrust Division’s practice of pursuing monopolization cases only civilly. The elements enumerated in the Zito plea agreement are the same elements required in a civil case, but prosecutors may encounter obstacles trying to prove these elements beyond a … Continue Reading

DOJ Antitrust Division Not Backing Down on Labor

Photo of BakerHostetlerPhoto of Kayley SullivanBy BakerHostetler and Kayley Sullivan on Posted in DOJ
Despite back-to-back losses in the Department of Justice’s (DOJ) first-ever criminal no-poach and wage-fixing cases, the Antitrust Division (the Division) is not backing down from its enforcement focus on labor. In fact, the Division and Assistant Attorney General Jonathan Kanter continue to proudly tout their continued aggressive stance, with Kanter recently stating that the Division … Continue Reading

Federal Court Allows Price-Fixing Class Action to Proceed Against Universities

Photo of BakerHostetlerPhoto of Carl HittingerPhoto of Tyson HerroldPhoto of Nicholas RoseBy BakerHostetler, Carl Hittinger, Tyson Herrold and Nicholas Rose on Posted in Class Action Litigation
Seventeen of U.S. News & World Report’s top 25 universities in the nation recently lost their bid to dismiss allegations of an antitrust conspiracy to suppress student financial aid awards. The ruling by the U.S. District Court for the Northern District of Illinois is notable because it held that the “568 Exemption,” on which many … Continue Reading

PGA Tour Wins First Round in Antitrust Legal Fight with Players

Photo of BakerHostetlerPhoto of Alyse StachBy BakerHostetler and Alyse Stach on Posted in Antitrust Exemptions & Immunities, Sports
On August 9, 2022, a federal judge hearing the antitrust lawsuit filed by 11 professional golf players against the PGA Tour ruled against three of the players who had sought a temporary restraining order. The order, if granted, would have allowed those three players who had qualified for the PGA Tour’s playoffs to play in … Continue Reading

Is Antitrust Liability in the Future for the PGA Tour, and Beyond?

Photo of BakerHostetlerPhoto of Alyse StachBy BakerHostetler and Alyse Stach on Posted in Antitrust Exemptions & Immunities, Sports
On August 3, 2022, 11 professional golfers, led by Phil Mickelson, filed an antitrust complaint in the Northern District of California against the PGA Tour for the actions it took against the golfers – including suspension from PGA Tour events – for their participation in events for the new Saudi-backed LIV Golf Invitational Series (LIV … Continue Reading

Decision Benefits Franchise Businesses and Finds Alston Bars Challenge to No-Poach Agreements

Photo of BakerHostetlerPhoto of Nicholas RosePhoto of Tyson HerroldBy BakerHostetler, Nicholas Rose and Tyson Herrold on Posted in Antitrust Litigation
In June 2021, the Supreme Court reaffirmed in NCAA v. Alston that antitrust claims under Section 1 of the Sherman Act “presumptively” call for rule-of-reason analysis and that only the rare case merits “quick look” or per se treatment. __ U.S. __, 141 S.Ct. 2141, 2151 (2021). Recently, in Deslandes v. McDonald’s USA, LLC, Judge Jorge … Continue Reading

Baby Formula Shortage Subject of FTC Scrutiny

Photo of Carl HittingerPhoto of Julian PerlmanPhoto of Marc SchildkrautPhoto of Alyse StachPhoto of Victoria WeatherfordPhoto of BakerHostetlerBy Carl Hittinger, Julian Perlman, Marc Schildkraut, Alyse Stach, Victoria Weatherford and BakerHostetler on Posted in Food Industry, FTC
On May 23, 2022, the Federal Trade Commission (FTC), at the prompting of President Joe Biden, announced that it will launch a civil investigation into the ongoing shortage of baby formula throughout the country. The FTC is hoping to unearth the factors that have contributed to market consolidation in light of the pressing supply chain … Continue Reading

Antitrust Division Announces Newfound Intent to Pursue Monopolization Cases Criminally

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust & Politics, Antitrust Compliance, Government Investigations
This week, during a panel discussion at the American Bar Association’s annual National Institute on White Collar Crime, Antitrust Division Deputy Assistant Attorney General Richard Powers sent shockwaves through the defense bar with a surprising revelation. Speaking about the Antitrust Division’s plans for vigorous enforcement, he revealed that the Division intends to use its power to … Continue Reading

New Executive Order Targeting Noncompete Agreements Foreshadows Significant Issues for Employers

Photo of BakerHostetlerPhoto of Joyce Ackerbaum CoxPhoto of Meagan MartinPhoto of John SiegalBy BakerHostetler, Joyce Ackerbaum Cox, Meagan Martin and John Siegal on Posted in Government Investigations
On July 9, 2021, President Biden issued a sweeping Executive Order aimed at promoting competition in the American economy. Within the Executive Order, President Biden specifically encourages the Federal Trade Commission (FTC) to regulate noncompetition agreements (generally referred to as “noncompetes”). Read the full Alert.… Continue Reading

NCAA, COVID and Paying Players: Negotiating Payment in the Midst of a Pandemic

Photo of BakerHostetlerBy BakerHostetler on Posted in Sports
In May, three judges on the U.S. Court of Appeals for the Ninth Circuit ruled unanimously against the NCAA in its appeal of the lower court decision, finding that the organization’s policies that prohibit student-athletes from being compensated are, in fact, anticompetitive. Last year we examined the decision in Alston v. NCAA, an opinion by … Continue Reading

Big Day for Big Tech: CEOs Testify in House Antitrust Hearing

Photo of Joshua JowdyPhoto of BakerHostetlerBy Joshua Jowdy and BakerHostetler on Posted in Technology
On Wednesday, July 29, 2020, the House Judiciary Committee’s Subcommittee on Antitrust conducted its sixth hearing into online platforms and market power, welcoming as witnesses the chief executive officers of Amazon, Apple, Google, and Facebook. The hearing lasted more than five hours and was styled as “Examining the Dominance of Amazon, Apple, Facebook and Google.” … Continue Reading

DOJ Takes a Stance on Section 230 Reform that Could Place Additional Burdens on Online Platforms

Photo of Darley MawPhoto of Jeffrey MartinoPhoto of Linda A. GoldsteinPhoto of BakerHostetlerBy Darley Maw, Jeffrey Martino, Linda A. Goldstein and BakerHostetler on Posted in DOJ
The Department of Justice (DOJ) recently outlined proposed reforms to Section 230 of the Communications Decency Act of 1996.[1] Section 230 has been in place since the early days of the Internet and protects online platforms from liability for certain third-party posts. It has recently become a point of contention between Big Tech and the … Continue Reading

Limits of State Action Protection for Colleges and Universities

Photo of Brady CumminsPhoto of BakerHostetlerBy Brady Cummins and BakerHostetler on Posted in Education
A recently filed antitrust complaint against Duke University (Duke) provides a fresh reminder for colleges and universities that the state action immunity doctrine is unlikely to be a complete shield from antitrust liability even if a public university is involved. On May 29, a professor at the University of North Carolina (UNC) filed a complaint … Continue Reading

1-800 Contacts Settles Class Action Lawsuit With Roots in FTC Action

Photo of Darley MawPhoto of BakerHostetlerBy Darley Maw and BakerHostetler on Posted in Advertising
Back in 2016, the Federal Trade Commission (FTC) sued 1-800 Contacts, claiming the online retailer devised an anticompetitive scheme with other online lens retailers to restrict search terms.  The FTC charged that 1-800 Contacts and its competitors entered into agreements which prevented the other online contact lens retailers from bidding for search engine keywords in … Continue Reading

When Routine Merger Review Opened More Than a Can of Tuna

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust Litigation
The shelf-stable tuna industry has been decidedly unstable behind the shelves. In 2014, two of the “big three” industry leaders – Bumble Bee Foods and Chicken of the Sea – announced a proposed merger that would have swamped the then-industry leader StarKist. The shelf-stable tuna industry has been decidedly unstable behind the shelves. In 2014, … Continue Reading

Antitrust Agency Turf War Over Big Tech Investigations

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles
The Federal Trade Commission and the Department of Justice have found themselves under the microscope as calls for antitrust investigations into “Big Tech” companies escalate. The Federal Trade Commission and the Department of Justice have found themselves under the microscope as calls for antitrust investigations into “Big Tech” companies escalate. The agencies, which share civil … Continue Reading

Does Section 2 of the Sherman Antitrust Act Need More Bite?

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles
Last month, two members of Congress introduced the Monopolization Deterrence Act, which would allow the Justice Department and the Federal Trade Commission to seek civil penalties for monopolization offenses under U.S. antitrust law. After almost 120 years, does the Sherman Antitrust Act need statutory tweaking? Sens. Amy Klobuchar and Richard Blumenthal seem to think so. … Continue Reading

Private Antitrust Litigation and State Action Immunity in the U.S. since 2015

Photo of BakerHostetlerBy BakerHostetler on Posted in Antitrust & Politics
An article written by Partners Carl Hittinger and Danyll Foix and Counsel William DeVinney was published Sept. 20, 2019, by Global Competition Review. The article, “United States: Private Antitrust Litigation,” reviews private antitrust litigation developments in the five years since the U.S. Supreme Court’s 2015 ruling in North Carolina State Board of Dental Examiners v. Federal … Continue Reading
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