Tyson Herrold

Criminal No-Poach Update: DOJ Seeks to Contain Fallout from Judgment of Acquittal

By Tyson Herrold on June 1, 2023 Posted in DOJ

The Department of Justice (DOJ) continues to pursue no-poach agreements as criminal conduct despite yet another recent defeat, this time in United States v. Patel. In Patel, the DOJ alleged that employees of an aerospace company and outsourcing competitors conspired to restrict the hiring and recruiting of aerospace engineers and other employees in violation of … 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

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

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

By BakerHostetler, Nicholas Rose and Tyson Herrold on July 25, 2022 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

Franchise No-Poach Agreements: Is Reform on The Horizon?

By Jeffrey Martino and Tyson Herrold on January 6, 2021 Posted in DOJ

In 2016, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued Joint Guidance for Human Resource Professionals warning that no-poach agreements restricting employee hiring may violate the antitrust laws.[1] That guidance, along with pre-guidance litigation, has established some clear ground rules. Naked no-poach agreements are per se illegal under §1 of the … Continue Reading

Combating COVID-19 Through Competitor Collaboration

By Tyson Herrold and Brady Cummins on April 7, 2020 Posted in FTC

Join members of the BakerHostetler Antitrust and Competition Team on Monday, April 13, 2020 for a webinar where they will examine criminal and civil antitrust risks and the best practices businesses should follow to protect themselves, including an exploration of the immunities offered by the Defense Production Act, the Pandemic and All-Hazards Preparedness Act and … 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

Trump’s Pick for Department of Justice Antitrust Division Chief

By Carl Hittinger and Tyson Herrold on May 4, 2017 Posted in Antitrust & Politics, Articles

Last month we discussed Supreme Court Justice Neil Gorsuch’s confirmation hearings. Specifically, we noted the Senate Judiciary Committee’s failure to nail Gorsuch down on key antitrust issues, including issues he handled as an experienced antitrust lawyer and decided as a judge on the U.S. Court of Appeals for the Tenth Circuit, which we also wrote … Continue Reading

The Senate’s Uneventful Gorsuch Confirmation Hearing

By Carl Hittinger and Tyson Herrold on April 25, 2017 Posted in Antitrust & Politics, Articles, Sherman Act 2

Recently, we discussed in prior articles the antitrust legacy of Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit and nominee for the Supreme Court of the United States. Gorsuch has significant antitrust experience, both in private practice and on the bench. While at Kellogg, Huber, Hansen, Todd, Evans … Continue Reading

Antitrust Legacy of High Court Nominee Gorsuch in Private Practice

By Carl Hittinger and Tyson Herrold on April 4, 2017 Posted in Antitrust & Politics, Articles, Sherman Act 2

Last month, we discussed the antitrust jurisprudence of Neil Gorsuch, currently of the U.S. Court of Appeals for the Tenth Circuit judge and nominee to the Supreme Court of the United States. Our discussion focused on three of Gorsuch’s opinions during his decade-long tenure with the court of appeals. Even before Gorsuch was nominated to … Continue Reading