On December 18, 2023, The Federal Trade Commission and Antitrust Division of the Department of Justice concluded a nearly two-year process of updating both the horizontal and vertical merger guidelines with the release of the 2023 Merger Guidelines.  The new Merger Guidelines align closely with the objective—expressed by both FTC and DOJ—to expand the types of enforcement actions seeking to prevent the formation of monopolies and to address existing monopolization by established firms in various industries.  The Agencies have already begun referring to the new Guidelines in enforceme ..read more

This article originally appeared on Law360. Over the last three years, the U.S. Department of Justice has pursued its first-ever criminal antitrust cases targeting alleged deals between companies to avoid poaching each other's employees and to fix wages. In total, the DOJ has brought six cases. Four resulted in acquittals, while just one case yielded guilty pleas. Last month, the DOJ voluntarily dismissed its sixth and last case without explanation. A number of lessons can be drawn from this wave of labor-market prosecutions. In terms of a legal theory, the DOJ did quite well. C ..read more

Last month, we discussed where things stand regarding Microsoft’s proposed $69 billion acquisition of Blizzard, Inc. (“Activision”) in light of domestic and international challenges to the proposed deal.  This week, the closely-watched merger encountered another obstacle, as the FTC issued an order returning its challenge to administrative adjudication. In the parallel action initiated in federal court, the FTC’s bid for a preliminary injunction of the proposed merger was rejected by Judge Jacqueline Scott Corley of the Northern District of California on July 10, 2023. As a reminder, here ..read more

The Seventh Circuit recently revived an antitrust challenge to a clause in McDonald’s franchise agreements barring franchises from poaching other franchises’ employees.  (See our previous coverage of antitrust challenges to no-poach agreements, reported on: Feb. 9th, 2022; May 2nd, 2022; Sept. 22nd, 2022; Nov. 29th, 2022; Feb. 14th, 2023; and May 15th, 2023.)  In a unanimous opinion by Judge Frank Easterbrook, the Seventh Circuit held that the district court erred by rejecting the plaintiffs’ theory that the no-poach clause was per se unlawful at the motion-to-dismiss ..read more

Since the announcement of a proposed merger between Microsoft and Activision Blizzard, Inc. (“Activision”) in February 2022, enforcement agencies worldwide have adopted a spectrum of positions in response.  The EU Commission and the South African Competition Tribunal both approved the merger, while the United Kingdom’s Competition and Markets Authority initially blocked the deal.  In the United States, the Federal Trade Commission (“FTC”) vigorously opposed the merger and sought an injunction to halt it.  That effort failed on July 10, 2023, when Judge Jacqueline Scott Corl ..read more

On July 13, 2023, the U.S. Court of Appeals for the Third Circuit declined to block the $315 million purchase of Imperial Sugar Company (“Imperial”) by United States Sugar Corporation (“U.S. Sugar”), rejecting the Department of Justice’s (“DOJ”) claim that the merger would violate antitrust law and increase prices.  See United States v. United States Sugar Corp., et al., No. 21-cv-1644, 2023 WL 4526605 (3d Cir. July 13, 2023).  The Third Circuit’s decision let stand the District of Delaware’s initial order from September 2022, United States v. U.S. Sugar Corp., et al., No. 20-16 ..read more

In May, we discussed two antitrust lawsuits brought against JetBlue Airways Corporation (“JetBlue”) by the U.S. Department of Justice (“DOJ”) in the District of Massachusetts.  One lawsuit is focused on JetBlue’s proposed acquisition of Spirit Airlines, Inc. (“Spirit”), while the other concerns JetBlue’s Northeast Alliance (“NEA”) with American Airlines Group, Inc. (“American”).  The latter lawsuit went to trial in Fall 2022, and on May 19, 2023, Judge Leo T. Sorokin issued his Findings of Fact and Conclusions of Law (the "Opinion") in favor of the DOJ.  In the Opinion, the cour ..read more

Two labor-market criminal antitrust trials recently ended in acquittals, further demonstrating the challenges the United States has faced in this area  (See our previous coverage of this prosecution trend, reported on: Feb. 9th, 2022; May 2nd, 2022; Sept. 22nd, 2022; Nov. 29th, 2022, and Feb. 14th, 2023).  In United States v. Patel, a district judge granted the defendants’ motion for judgment of acquittal on charges of a no-poach agreement before the case went to the jury.  And, in United States v. Manahe, a federal jury in Maine acquitted four healthcare agency managers of no-p ..read more

JetBlue Airways Corporation (“JetBlue”) is currently defending two antitrust lawsuits brought by the U.S. Department of Justice (“DOJ”) in the District of Massachusetts.  In the first, which was filed in March, DOJ challenges JetBlue’s proposed acquisition of Spirit Airlines, Inc. (“Spirit”).  JetBlue and Spirit filed Answers in that action this week.  The second lawsuit, which went to trial in Fall 2022, questions JetBlue’s Northeast Alliance with American Airlines Group Inc. (“American”).  In both, DOJ contends that the relevant product market definition is scheduled air ..read more

On April 14, 2023, the Supreme Court issued a consolidated opinion in Axon Enterprise, Inc. v. FTC and SEC v. Cochran.[1]  We previously covered the oral argument in these cases here.  These cases address whether respondents in federal administrative proceedings have the ability to pose constitutional challenges to those proceedings in federal court prior to exhausting the administrative process.  The Supreme Court, in an opinion by Justice Kagan, held that respondents may do so. The decision could have profound implications for the future of federal administrative proceedi ..read more