I have not written a blog post in some time. Been busy, or perhaps a bit lazy, but the Fourth Circuit opinion in United States v. Brewbaker,   __ F. 4th __(4th Cir. 12/1/2023), 2023-2 Trade Cases ¶82,716; 2023 Westlaw 8286490 caught my attention. The decision represents a surprising departure from black letter law that collusion between competing bidders is a criminal ( i.e. per se) violation. The Brewbaker court overturned the bid rigging conviction of a Brewbaker, former executive of aluminum pipe maker, Contech, finding that his indictment did not allege a per se antitru ..read more

Two items recently in the cartel news caught my eye because they have something in common: the chicken parts criminal price fixing prosecution failures and Donald C. Klawiter’s article calling for A Really New Leniency Program: A Positive, Cooperative, and Enthusiastic Partnership for Effective Antitrust Enforcement, Antitrust, Vol. 36, No. 3, Summer 2022. What they have in common is a sharp and unfortunate turn by the Antitrust Division to not welcoming input from the antitrust criminal defense bar before making important decisions. The antitrust/cartel bar is a well-respected group of a ..read more

I have no expertise in predicting whether the Supreme Court will grant certiorari on any given petition. But I am hopeful that the high court will do so on the issue of whether the application of the per se rule in a criminal antitrust case is unconstitutional. I have seen a couple of items recently that may be a sign that the Court is ready to address this issue. First, there have been a number of Supreme Court cases where the constitutional rights of criminal defendants have been strengthened/upheld. In Hemphill v. New York, No. 20-637 (January 20, 2022) the Supreme Court upheld a criminal d ..read more

With 2021 coming to a close, a look back at antitrust legislation introduced in Congress over the last year will provide a sense of what new antitrust laws could come in 2022. More than a dozen bills are currently pending in Congress that could impact the future of antitrust law. Bipartisan support for strengthening the laws to rein in the tech giants could push some of these measures over the finish line in 2022. While calls for antitrust reform and tougher antitrust enforcement have been heard for years in Washington, D.C., these pleas grew ever louder in 2021. With the new Biden Administrat ..read more

On November 29, 2021 in U.S. v. Neeraj Jindal and John Rodgers, Civil Action No. 4:20-CR-00358A (N.D. Texas), District Court Judge Amos L. Mazzant rejected defendants’ motion to dismiss the indictment on various grounds, including challenges to the per se rule. Among other arguments, defendants argued that “wage-fixing” was not covered by the Sherman Act because it did not involve the purchase and sale of goods. Defendants also argued that courts did not have enough experience with wage-fixing (this was the government’s first wage-fixing indictment) to label the conduct a per se violation. The ..read more

In an October 16, 2016 FTC/DOJ press release: FTC and DOJ Release Guidance for Human Resource Professionals on How Antitrust Law Applies to Employee Hiring and Compensation the Antitrust Division first announced: “Going forward, the Justice Department intends to criminally investigate naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between the employers.” The Antitrust Division has since made good on that promise with several criminal cases, some involving individuals as defendants, currently in the courts.  See ..read more

At an October 1, 2021 in-person conference (Fordham’s 48th Annual Conference on International Antitrust Law and Policy) Acting Assistant Attorney General Richard A. Powers of the Antitrust Division spoke about the history of and Antitrust Division’s commitment to enforcing the antitrust laws, including criminal enforcement, in labor markets:  “If it was important for enforcers to protect competition in labor markets decades ago — and I believe it was — it is essential now.” I suggest reading the speech in its entirety (here) but I’ll quote a few of the remarks: “Between 2010 and 2012, th ..read more

The Supreme Court’s decision in Nat’l Collegiate Athletic Ass’n v. Alston, Nos. 20-512 and 20-520, 2021 WL 2519036, (U.S. June 21, 2021) is a boost for the Antitrust Division’s commitment to prosecute what it calls naked “wage fixing” and “no poach” agreements. In the prosecutions it has brought to date (still in the early stages) defendants have argued that the rule of reason, not the per se rule, should apply, because the courts do not have sufficient experience with wage fixing and/or no poach to put them in the class of per se violations. One of the cases being litigated is United States v ..read more

Congratulations to Senator Chuck Grassley and Patrick Leahy for the passage in the House of Representatives of their bipartisan legislation that has already passed the Senate that aims to protect whistleblowers who come forward with information on criminal antitrust violations.  In a December 8, 2020 Press Release  Senator Grassley said, “The Criminal Antitrust Anti-Retaliation Act encourages and shields from reprisal private sector employees to shine a light on activities that violate our antitrust laws. This bipartisan bill is an important step to safeguarding fair market ..read more

The U.S. Department of Justice Antitrust Division has issued more business review letters in 2020 than in any year since 2002. Recent years have averaged only one letter. So why is there this sudden interest in a statement of the Antitrust Division’s enforcement intentions with respect to proposed business conduct? Concerns about how the Antitrust Division might view coordination to address the COVID-19 pandemic explains some of this interest. Four of the seven letters issued so far in 2020 were pursuant to the Justice Department temporary review procedure responding to the COVID-19 pandemic ..read more