Carl Hittinger

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FTC Proposes Sweeping Changes to HSR Reporting Requirements

By Marc Schildkraut, Steven H. Goldberg, Thomas Hogan, Carl Hittinger and Jeffrey E. Liskov on June 30, 2023 Posted in Alert

On June 27, the Federal Trade Commission issued a press release announcing proposed changes to reporting requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR). The proposed changes will substantially increase the information that must be gathered and reported in connection with an HSR filing. These changes, if adopted, would multiply the … Continue Reading

A Familiar Refrain: Judges Remind Lawyers and Their Experts of the Importance of Explaining Antitrust Cases in a Way Laypeople Can Understand

By Carl Hittinger and Justin Kadoura on April 10, 2023 Posted in Antitrust Litigation

Key Takeaways: Panelists echoed a familiar tune at the 2023 ABA Antitrust Spring Meeting’s “Views from the Bench”: Judges wish antitrust lawyers and their expert witnesses would do a better job of explaining and narrowing down the factual and legal issues in their cases.[1] The problems associated with the opacity of antitrust cases come up … Continue Reading

Dan Foix, Carl Hittinger and Tyson Herrold Author Article on Efforts to Renew Enforcement of Largely Dormant Act

By Danyll Foix, Carl Hittinger and Tyson Herrold on March 16, 2023 Posted in FTC

Partners Dan Foix and Carl Hittinger and Counsel Tyson Herrold authored a Feb. 27, 2023, article for Westlaw Today titled “The FTC considers reviving Robinson-Patman enforcement.” The authors write that the Federal Trade Commission, which has not attempted to enforce Robinson-Patman in decades,“will look for what it views as a clear violation that it can use to … Continue Reading

FTC Seeks to Ban Non-Compete Restrictions in Employment Contracts

By BakerHostetler, Carl Hittinger, Joyce Ackerbaum Cox, Tyson Herrold and Christine M. Kennedy on January 6, 2023 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

Federal Trade Commission’s Historic Attempt to Drive a Mack Truck Through the Sherman Act

By Carl Hittinger, Jeffry Duffy, Tyson Herrold and Justin Kadoura on November 21, 2022 Posted in Alert

Key Takeaways The Federal Trade Commission (FTC) issued a historic statement, setting out a new framework for assessing “standalone” claims of “unfair methods of competition” that can be brought by the FTC alone under Section 5 of the FTC Act and that do not independently violate the Sherman, Clayton or Robinson-Patman acts. Although the FTC’s … Continue Reading

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

By Carl Hittinger and BakerHostetler on November 4, 2022 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

Hospital Mergers: The Future of COPA Immunity

By Carl Hittinger, Marc Schildkraut and Tyson Herrold on October 26, 2022 Posted in FTC

In October 2022, the Federal Trade Commission issued a Public Comment opposing a Certificate of Public Advantage (COPA) for the merger of State University of New York Upstate Medical University (SUNY Upstate) and Crouse Health System, Inc. The FTC’s Public Comment advises the New York State Department of Health that the merger would harm competition, … Continue Reading

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

By BakerHostetler, Carl Hittinger, Tyson Herrold and Nicholas Rose on September 14, 2022 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

Baseball’s Antitrust Exemption Marks Its 100th Anniversary with a New Challenge

By Carl Hittinger and Tyson Herrold on August 1, 2022 Posted in Antitrust Litigation

For more than a century, minor league baseball and Major League Baseball (MLB) have thrived in a symbiotic relationship. Minor league teams affiliate with major league teams for financial support and access to major league staff. In exchange, major league teams receive a share of minor league revenue and access to budding talent. The year … Continue Reading

Baby Formula Shortage Subject of FTC Scrutiny

By Carl Hittinger, Julian Perlman, Marc Schildkraut, Alyse Stach, Victoria Weatherford and BakerHostetler on June 2, 2022 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

Is Big Chicken Cooked? DOJ Intervenes in Price-Fixing Investigation

By Carl Hittinger and Jeanne-Michele Mariani on August 5, 2019 Posted in Articles

Pork is the other white meat, beef is what’s for dinner, and chicken is now under investigation by the Department of Justice for possible antitrust violations. Looks like the DOJ is back in the criminal cartel investigation business. In June, the DOJ intervened in a class action antitrust lawsuit, filed in the U.S. District Court … Continue Reading

Carl Hittinger, Jeanne-Michele Mariani Examine Drug Price Spikes and Antitrust Laws

By Carl Hittinger and Jeanne-Michele Mariani on December 18, 2018 Posted in Uncategorized

Partner Carl Hittinger and Associate Jeanne-Michele Mariani authored an article published by The Legal Intelligencer on Nov. 30, 2018. The article, “Price Hikes and Spikes and the Antitrust Laws,” uses the well-known example of “Pharma bro” Martin Shkreli and his company’s abrupt price hike for Daraprim from $13.50 to $750 a pill to consider whether such price jumps should be necessarily … Continue Reading

Carl Hittinger, Jeanne-Michele Mariani Assess Justice Kavanaugh’s Testimony Regarding Antitrust Law

By Carl Hittinger and Jeanne-Michele Mariani on November 13, 2018 Posted in Antitrust Litigation

Partner Carl Hittinger and Associate Jeanne-Michele Mariani authored an article published Oct. 26, 2018, by The Legal Intelligencer. The article, “Justice Kavanaugh’s Antitrust Testimony Before the Senate Judiciary Committee,” examines the testimony of U.S. Supreme Court Justice Brett Kavanaugh during his confirmation hearings last month, before his nomination was approved in the Senate. They write that when asked about his … Continue Reading

A Look at Judge Kavanaugh’s Antitrust Record

By Carl Hittinger and Tyson Herrold on September 10, 2018 Posted in Articles

BakerHostetler Partner Carl Hittinger and Associate Tyson Herrold authored an article published Aug. 24, 2018, by The Legal Intelligencer. The article, “Is Judge Kavanaugh a Fan of Antitrust Laws? Let’s Take a Look,” examines the limited antitrust jurisprudence record of U.S. Court of Appeals Judge Brett Kavanaugh, who has been nominated to replace Justice Anthony … Continue Reading

Carl Hittinger, Tyson Herrold Author Article that Assesses Congressional Attempts to Update FTC Merger Review Process

By Tyson Herrold and Carl Hittinger on June 27, 2018 Posted in FTC

Partner Carl Hittinger and Associate Tyson Herrold authored an article published June 22, 2018, by The Legal Intelligencer. The article, “How Smart is the Proposed Merger Review SMARTER Act?,” discusses a long-awaited bill before Congress that would significantly streamline the standards for the Federal Trade Commission’s (FTC) merger review process and finally align the different … Continue Reading

Class Actions Now Flowing From FTC and DOJ’s No-Poach Enforcement

By Tyson Herrold and Carl Hittinger on May 15, 2018 Posted in Class Action Litigation

Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on May 5, 2018. The article, “Class Actions Now Flowing from FTC and DOJ’s No-Poach Enforcement,” discusses the increase of class action lawsuits brought under Section 1 of the Sherman Act against national franchises for imposing employee no-hire agreements on … Continue Reading

DOJ Now Targeting HR Professionals for Criminal Antitrust Violations

By Tyson Herrold and Carl Hittinger on April 9, 2018 Posted in Antitrust Litigation

Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on March 30, 2018. The article, “DOJ Now Targeting HR Professionals for Criminal Antitrust Violations,” examines the Department of Justice’s (DOJ) ongoing enforcement of certain no-poach employee and wage-fixing cases. Specifically, the article lists DOJ complaints successfully filed against employers and analyzes the difference between naked … Continue Reading

Should a Judge’s Personal Judicial Experience Affect Antitrust Pleadings?

By Carl Hittinger and Tyson Herrold on March 19, 2018 Posted in Antitrust Litigation

When the U.S. Supreme Court scrapped Conley v. Gibson’s “no set of facts” federal pleading standard in Twombly (2007) and Iqbal (2009), courts initially struggled to apply the inherently ambiguous “plausibility” standard. In the immediate aftermath, some courts frankly misconstrued Twombly and Iqbal to invite a Daubert-style “gate keeper” appraisal of complaints in which judges could (and should) prune claims that, based on their own personal experience … Continue Reading

No Health Care Merger Too Small for the FTC to Take an Antitrust Look

By Carl Hittinger and Tyson Herrold on February 12, 2018 Posted in FTC, Healthcare

In our November and December 2016 articles, we discussed the Federal Trade Commission’s proclivity to challenge health care mergers, even when the purported anticompetitive effects of the relatively economically limited merger would be confined to a local geographic region. For example, in 2014, the FTC, joined by the Idaho state attorney general, in St. Alphonsus … Continue Reading

New Antitrust Division Chief Prioritizes Regulation of Standard Setting Organizations

By Carl Hittinger and Tyson Herrold on December 6, 2017 Posted in Articles, Patents

As we discussed in our May 2017 article, the current head of the DOJ’s Antitrust Division, Makan Delrahim, brings considerable intellectual property experience to the division. Delrahim started his legal career at the Office of the U.S. Trade Representative as deputy director for intellectual property rights. He later served on the Intellectual Property Task Force … Continue Reading

Supreme Court to Decide First Antitrust Case in Two Years

By Carl Hittinger and Tyson Herrold on November 9, 2017 Posted in Antitrust Litigation, Articles, Sherman Act 2

On Oct. 16, the U.S. Supreme Court granted certiorari in United States v. American Express, the court’s first antitrust case of the 2017 term and the first antitrust case they have reviewed since 2015. The American Express case presents complex questions about the legality of anti-steering provisions in agreements between credit card companies and the … Continue Reading

Presidential Powers and Antitrust Politics: Part Three

By Carl Hittinger and Tyson Herrold on October 13, 2017 Posted in Antitrust & Politics, Articles

In July and August, we discussed the president’s role in setting antitrust policy at the Department of Justice, Antitrust Division. Specifically, we pointed out that presidents routinely face competing domestic and foreign policy challenges that require a delicate balance and flexible approach to antitrust enforcement. For example, President John F. Kennedy directed the DOJ to … Continue Reading

Presidential Powers and Antitrust Politics: Part One

By Carl Hittinger and Tyson Herrold on July 31, 2017 Posted in Antitrust & Politics, Articles

In June, we discussed the Trump administration’s candidate for the top post in the Department of Justice’s Antitrust Division: Makan Delrahim. During Delrahim’s confirmation hearing, Sen. Amy Klobuchar pressed him, “What would you do, if you’re in this job, if the president, or the vice president, or a White House staffer calls, and wants to … Continue Reading

DOJ’s Possible Antitrust Chief’s Senate Confirmation Hearing

By Carl Hittinger and Tyson Herrold on June 19, 2017 Posted in Antitrust & Politics, Articles

Last month, we discussed Makan Delrahim’s background, including his experience litigating antitrust and intellectual property matters at the Department of Justice during the George W. Bush administration and his extensive lobbying work at Brownstein, Hyatt, Farber and Schreck. On May 10, senators from the Senate Judiciary Committee held a hearing and asked Delrahim about several … Continue Reading