Avoid Submitting Misleading or Incorrect Information During a Merger Review Process or Face an Investigation Even After the Notification Is Withdrawn
Antitrust & Competition Blog
by Zanda Romata, Robert Klotz and Charles Whiddington
1w ago
In merger procedures, it is a fundamental requirement for parties to provide accurate and complete information to the European Commission as it forms the basis of the Commission’s assessment of mergers. Under the EU Merger Regulation (EUMR), the European Commission can impose fines where parties intentionally or negligently provide misleading or incorrect information during the merger review process and in response to requests for information. In March this year, the European Commission issued a Statement of Objections to Kingspan, alleging it provided misleading or incorrect information durin ..read more
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The EU’s New Market Definition Notice
Antitrust & Competition Blog
by Charles Whiddington
1M ago
After a lengthy period of consultation, the European Commission has adopted a new Notice (‘Notice’) on the definition of the relevant market for purposes of EU competition law.  The Notice comes on the heels of a significant period of updating competition laws, including (i) a number of new block exemption regulations setting safe harbors (e.g. for vertical agreements, R&D, specialization agreements); (ii) new guidelines on vertical agreements; (iii) new guidelines on horizontal agreements, which have a chapter dedicated to sustainability arrangements; (iv) the Digital Markets Act; (v ..read more
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Disappearing No More: Maintaining Electronic Messages for Antitrust Investigations
Antitrust & Competition Blog
by Michael Weiner, John Kavanagh, Lee Berger and Travis West
2M ago
The Antitrust Division of the Department of Justice  and the Federal Trade Commission recently issued a revised model second request clarifying that companies under investigation have an obligation to preserve communications on messaging platforms including those on so-called ephemeral applications.  These applications, such as Slack, Microsoft Teams, Signal, and Google Chat, can be configured to delete messages automatically, posing a problem when a litigation hold is implemented.  A federal judge sanctioned Google in March of 2023 for telling the court that it was preserving m ..read more
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The FTC Updates Size of Transaction Thresholds and Filing Fees for Premerger Notification Filings for 2024
Antitrust & Competition Blog
by Michael Weiner, John Kavanagh, Lee Berger and Travis West
2M ago
The Federal Trade Commission (“FTC”) has announced updated size-of-transaction thresholds for premerger notification (Hart-Scott-Rodino or “HSR”) filings, as well as updates to the HSR filing fees and transaction value categories.  Separately, the FTC has also updated the de minimis thresholds for interlocking officer and director prohibitions under Section 8 of the Clayton Act. The HSR filing thresholds, which are revised annually based on the change in gross national product, trigger a premerger notification filing requirement with both the FTC and the Department of Justice’s (“DOJ”) An ..read more
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The Federal Trade Commission Weighs In on AI and Copyright
Antitrust & Competition Blog
by Andrew Golodny
5M ago
The Federal Trade Commission (FTC) recently submitted comments to the US Copyright Office as part of the Office’s notice of inquiry examining copyright issues related to artificial intelligence. The agency’s comments largely focused on two areas: potential threats to competition from AI, and copyright. Competition: The FTC cautioned that “the rapid development and deployment of AI also poses potential risks to competition” for several reasons: “The rising importance of AI to the economy may further lock in the market dominance of large incumbent technology firms. These powerful, vertically in ..read more
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Seventh Circuit: No-Poach Agreements May Be Per Se Illegal
Antitrust & Competition Blog
by Lee Berger, Travis West and Andrew Magloughlin
7M ago
A recent Seventh Circuit opinion by Judge Easterbrook held that no-poach agreements, absent valid ancillary restraints, can be per se illegal. Per se violations of the antitrust laws are inherently illegal—meaning no defenses or justifications are available. They have traditionally included conduct like horizontal price fixing, bid rigging, and market allocation.  This is the first appellate opinion to reach the conclusion that no-poach agreements can be per se violations. As the Department of Justice Antitrust Division (DOJ) has spent the past seven years arguing that no-poach agreements ..read more
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Landmark Judgment from the CJEU for Online Operators Whose Business Model Is Based on Personalized Content and Advertisement
Antitrust & Competition Blog
by Charles Whiddington, Anne-Gabrielle Haie and Zanda Romata
9M ago
On July 4, 2023, the highest EU court issued a landmark judgment in Case C-252/21, where the German court referred several questions for a preliminary ruling related to (i) the interplay between data protection concerns and competition law breaches; and (ii) interpretation of the EU General Data Protection Regulation (GDPR). This judgment has far-reaching implications for online operators whose business model is based on personalized content and advertisement. We highlight some of the main takeaways from the judgment below, namely: Relevance of data protection determinations in comp ..read more
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In Significant Ruling, Federal Court Grants Motion for Judgment of Acquittal in Federal Labor-Side Criminal Antitrust Case
Antitrust & Competition Blog
by Patrick Linehan, John Kavanagh, Damon Kalt, Lee Berger and Drew Harris
1y ago
In a yet another setback for the U.S. Department of Justice’s (DOJ) ongoing effort to prosecute labor-side violations of the Sherman Act, District of Connecticut Judge Victor A. Bolden granted a motion for a judgment of acquittal on April 28, 2023 in United States v. Patel. The order, which was entered before the jury was given an opportunity to deliberate, is not appealable and therefore brings an end to DOJ’s efforts to prosecute an alleged “no-poach” market allocation agreement. But more significantly, the order sets a high bar for proving a per se unlawful market allocation agreement in cr ..read more
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With Pretrial Diversion Agreement, DOJ’s Antitrust Division Achieves Another “Meh” Victory In Its Continued Effort to Police Labor Markets
Antitrust & Competition Blog
by Patrick Linehan, Damon Kalt, John Kavanagh and Drew Harris
1y ago
On January 23, 2023, a federal district court approved a pretrial diversion agreement between the Department of Justice (DOJ) and Ryan Hee, a former regional manager for a healthcare staffing company. The deal, which will likely result in Hee walking away without a conviction, is yet another lackluster result for DOJ’s thus-far largely unsuccessful effort to criminally prosecute alleged anticompetitive conduct in the labor markets. Indeed, despite a spate of victories at the motion to dismiss stage (covered in our previous posts here, here, and here), DOJ has yet to secure a labor-side Sherman ..read more
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DOJ’s New Corporate Enforcement Policy for the Criminal Division and its Impact on Cases handled by other Divisions
Antitrust & Competition Blog
by Iris Bennett, Ali Burney, Brian Fleming, Patrick Linehan, Dave Stetson, Wendy Wysong, Rachel Peck and Ryan Pereira
1y ago
In this blog post, we provide an overview of the updates to the Criminal Division’s Corporate Enforcement Policy (CEP) and discuss the impact of these changes on the corporate enforcement policies for criminal violations of sanctions and export controls, criminal violations of antitrust laws, and civil violations of the False Claim Act. On January 17, 2023, Assistant Attorney General Kenneth A. Polite, Jr. announced changes to the Department of Justice’s (“DOJ”) Corporate Enforcement Policy (“CEP”), including applying the most recent FCPA Corporate Enforcement Policy to all corporate criminal ..read more
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