Janet L McDavid
Updates
Competition & Antitrust
Antitrust spotlight on HR professionals – call to review compliance programme
USA | 10 November 2016The US Antitrust Division of the Department of Justice and the Federal Trade Commission recently issued guidance for human resources (HR) professionals on steps to avoid antitrust violations. The guidelines – which cover 'no-poaching' agreements, agreements to fix wages or other terms of employment and the exchange of HR information – reveal the agencies' determination to scrutinise the employment arena and their intention to use, if necessary, their most powerful enforcement tools.
Information exchanges: a new frontier in antitrust enforcement
USA | 28 April 2016The treatment of exchanges of competitively sensitive information among competitors represents a new frontier in antitrust enforcement because the law in the United States differs from that in the European Union and some other countries. Both antitrust advisers and enforcers may find it challenging to know where to draw the line because information exchange cases are murkier than 'smoke-filled room' cases.
No antitrust immunity for state boards run by market participants
USA | 26 March 2015The Supreme Court recently ruled that state professional boards controlled by private entities must be supervised by state governments to fall within the scope of the state action antitrust immunity doctrine. Companies and private market actors that participate on state regulatory boards as part of hybrid agencies or in trade associations should be aware of the decision's potential impact.
Antitrust implications of cybersecurity information sharing clarified
USA | 08 May 2014The Department of Justice and Federal Trade Commission recently issued a joint policy statement on the antitrust implications of sharing cybersecurity information to help facilitate the flow of cyberintelligence throughout the private sector. The statement addresses the long-standing concern that sharing cyberintelligence may violate antitrust law under certain circumstances.
Supreme Court to decide first 'state action' case in 20 years
USA | 17 January 2013The US Supreme Court has heard argument in FTC v Phoebe Putney Health System , its first case on 'state action' immunity under the antitrust laws in 20 years. The court will use oral argument, and perhaps ultimately its opinion in the case, to clarify when foreseeable actions are also intentional. Antitrust commentators are likely to follow the case closely.
Likely antitrust enforcement during President Obama's second term
USA | 29 November 2012The Obama administration delivered on its promise to reinvigorate antitrust enforcement during its first term. The Antitrust Division of the Department of Justice and the Federal Trade Commission both raised the bar on merger and single-firm conduct enforcement, and the Antitrust Division continued the previous administration's strong enforcement against cartels. These trends now look set to continue during Obama's second term.
FTC-DOJ workshop focuses on antitrust analysis of most-favoured-nation clauses
USA | 01 November 2012The Department of Justice and the Federal Trade Commission recently held a joint, day-long workshop on the implications of most-favoured-nation (MFN) clauses for antitrust enforcement and policy. The consensus among economists, enforcers and practitioners is that MFN clauses can potentially have both pro-competitive and/or anti-competitive effects.
A new critical path for utility mergers
USA | 17 May 2012The Federal Energy Regulatory Commission recently took a decidedly different approach to its regulatory approval for mergers and acquisitions of electric utilities by declining to adopt the 2010 horizontal merger guidelines, issued by the Department of Justice and the Federal Trade Commission, which raised the thresholds that trigger market-power concerns.
Revised best practices for US-EU merger cooperation
USA | 03 November 2011The Federal Trade Commission, the Department of Justice Antitrust Division and the European Commission have published revised best practices for cases where the commission and a US agency are reviewing the same merger. Cooperation between the United States and the European Union raises potential strategic issues that companies should consider carefully when executing deals with both US and EU dimensions.
Department of Justice revises policy guide to merger remedies
USA | 14 July 2011The Antitrust Division of the Department of Justice has updated its policy guide to merger remedies. The new policy guide is intended to serve as a tool for division staff, merging parties and the bar seeking greater transparency into the division's current approach to merger remedies. Notably, the updated policy guide better reflects the division's recent willingness to craft innovative and comprehensive remedies.
Antitrust case leads to order enforcing criminal subpoenas
USA | 27 January 2011A recent Ninth Circuit decision confirmed that the risks associated with bringing foreign-originating evidence into the United States – even for what is believed to be a limited purpose – are very real and could result in that evidence being subpoenaed for use in a criminal investigation.
New merger guidelines emphasise flexibility
USA | 29 April 2010The Department of Justice Antitrust Division and the Federal Trade Commission have released for public comment a new draft of the Horizontal Merger Guidelines. Their acknowledgement of a more holistic, indeed subjective, approach will not surprise experienced counsel, but the judicial response is more difficult to predict in light of increasing insistence on rigorous economic proof.
NFL ruling could apply beyond sports
USA | 18 March 2010The Supreme Court has heard oral argument in American Needle Inc v National Football League, a case likely to have a profound effect on the application of Section 1 of the Sherman Act to commercial joint ventures. The key question is whether the National Football League's 32 separately owned and operated member clubs are independent economic enterprises and thus capable of conspiring among themselves.
Criminal Antitrust Enforcement in Down Economy
USA | 11 June 2009During the current economic crisis, antitrust compliance may not be at the top of the in-house counsel priority list. However, companies in markets susceptible to cartels may want to consider the magnitude of these risks. Recessions often bring a heightened temptation on the part of businesses to engage in cartel behaviour.
Will Leegin Mark the End of an Era?
USA | 12 April 2007In Leegin Creative Leather Products Inc v PSKS the Supreme Court will consider whether to sustain or overrule the condemnation per se of minimum resale price agreements between a manufacturer and its customers, known as resale price maintenance.
How Far Does the Tunney Act Go?
USA | 19 October 2006The meaning of the 2004 Tunney Act amendments became the subject of intense debate this summer when the Antitrust Division sought approval of its consent decrees regarding the Verizon/MCI and SBC/AT&T transactions. The developments have created considerable uncertainty in the merger process.
Federal Trade Commission Reforms Merger Process
USA | 30 March 2006The Federal Trade Commission has responded to concerns that the second request process is too burdensome. The new policies are a good start and address some of the core problems with the merger review process, but open and honest communication between the agency staff and the parties will be required to ensure that the benefits of these reforms are realized.
Tying, Patents and Market Power: Independent Ink
USA | 01 September 2005The debate over whether a patent should be presumed to give market power has raged for decades. Most commentators agree that it makes little sense to presume market power from a patent since no such market power exists in most instances. In a forthcoming decision the Supreme Court is expected to abolish the presumption and bring this area of law into accord with current economic thinking.
Important Antitrust Changes Signed into Law
USA | 26 August 2004The US president recently signed into law the Standards Development Organization Advancement Act 2004. Among other things, the act grants standards development organizations the same limited antitrust protection enjoyed by certain research and production joint ventures, and increases maximum criminal penalties for antitrust violations.
Sentencing Guidelines: Compliance Programmes Should be Updated
USA | 27 May 2004The Organizational Sentencing Guidelines - which direct judges in determining penalties for corporate criminal law violations, including cartel enforcement penalties - were recently amended. The revised guidelines provide more precise standards for corporate compliance programmes designed to prevent and detect violations of the antitrust laws.
Supreme Court Changes Landscape for Section 2 Liability
USA | 19 February 2004The Supreme Court has ruled that Verizon Communications' breach of a duty to share its local telephone network with its competitors as required by telecommunications law does not support a claim for liability under Section 2 of the Sherman Act. The decision provides guidance on the scope of Section 2 and raises the bar for plaintiffs seeking redress for alleged refusals to deal by regulated monopolies.
The Interplay of Antitrust Law with Sports League Rules
USA | 11 December 2003A successful legal challenge to the National Football League's rules on player eligibility would likely focus on Section 1 of the Sherman Act, and seek either damages or an injunction against the rules. However, prospective plaintiffs must also evaluate the unique considerations resulting from using laws designed to preserve competition against industries that market competition.
FTC Announces New Merger Remedy Guidelines
USA | 05 June 2003The Federal Trade Commission has released a Statement on Negotiating Merger Remedies which provides guidance to companies and their antitrust counsel when divesting assets pursuant to a consent decree or when buying such assets. The statement serves as a partial roadmap to help streamline what is often a lengthy divestiture approval process.
FTC Announces Changes to Merger Review Process
USA | 06 February 2003The Federal Trade Commission (FTC) recently announced changes to the process by which it investigates proposed mergers and acquisitions. These relate to the 'second request' process and other merger reviews, and are intended to make the process more efficient while reducing the burden on merging parties.
Global Convergence in Merger Review Promoted
USA | 18 April 2002The International Competition Network, founded last year in New York, addresses the need for greater convergence of merger control procedures as well as the competition advocacy role of regulating agencies. A Merger Working Group has been created to develop best practice recommendations for reviewing multi-jurisdictional mergers.
