There is a tension at the heart of modern U.S. cartel enforcement. On one hand is the engine that has been driving most criminal and civil cartel enforcement since the mid-1990s — the Department of Justice’s corporate leniency or “amnesty” program. The modern leniency program offers a relatively simple bargain to the first intrepid cartelist who walks through DOJ’s door: complete criminal amnesty in exchange for complete cooperation. But, on the other hand, the simplicity of this bargain has historically been complicated by the significant countervailing likelihood of private “follow-on” lawsuits threatening some of the most severe penalties found anywhere in the U.S. legal system, including joint and several liability, treble damages, and the automatic recovery of attorneys’ fees and costs. By providing the government with the robust cooperation necessary to achieve criminal amnesty, a cartelist was also often ensuring private plaintiffs would have the evidence they needed to successfully obtain these civil penalties, which, at least for corporate defendants, can be more financially painful than anything the criminal process can provide. The result is that the cost-benefit analysis of invoking the DOJ’s amnesty program has not always been as straightforward as it appears or was likely intended. Continue Reading
The Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) recently issued a joint statement (the “COVID-19 Statement”) regarding what constitutes lawful “procompetitive collaborations” between companies to address certain needs for consumers and businesses during the coronavirus pandemic. It also detailed what constitutes unlawful anticompetitive behavior related to essential and frontline workers and other vulnerable employees. The DOJ and FTC used this opportunity to send a clear warning to companies who may seek to take advantage of the current pandemic by entering into agreements to restrain competition and employee mobility or lower wages. Separately, for those companies who are actively working to assist essential workers, businesses and the country as a whole, the COVID-19 Statement provides guidance on engaging in lawful “procompetitive collaboration” to benefit essential workers and the economy amidst the coronavirus pandemic. Continue Reading
On April 4, 2020, the Department of Justice issued a business review letter allowing collaboration among five distributors of personal-protective equipment (“PPE”), oxygen, and medications. This is the first business review letter issued under the expedited review procedure for streamlining pandemic-related public health efforts issued jointly by the Federal Trade Commission and DOJ on March 24, 2020 (as previously reported here and here). The DOJ turned the request for review around in only five days, but offered few new insights into how the agencies might weigh public-health considerations against potential competitive harms. Continue Reading
Make no mistake, the antitrust laws remain in full effect. The leadership of the Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) have made clear that these enforcers “stand ready to pursue civil violations of the antitrust laws, which include agreements between individuals and business to restrain competition through increased prices, lower wages, decreased output, or reduced quality as well as efforts by monopolists to use their market power to engage in exclusionary conduct.” The DOJ also promised to vigorously monitor and prosecute any criminal violations of the antitrust laws, “which typically involve agreements or conspiracies between individuals or businesses to fix prices or wages, rig bids, or allocate markets.” In fact, the DOJ has drafted proposed legislation to allow more time for its criminal cases by tolling the statute of limitations for criminal antitrust violations for no less than 180 days and until 60 days after termination of the national emergency declared by the President on March 13, 2020.
The COVID-19 pandemic has triggered worldwide pandemonium and is disrupting business throughout all sectors. It is undeniably a major shock for the global economy. While the need for a coordinated response has been recognised at the highest levels in the EU, this does not mean that the application of competition law is suspended during the crisis. Continue Reading
This post has been updated as of March 24, 2020.
On Monday, March 23, it was reported that the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) were preparing to announce a streamlined procedure through which companies seeking to collaborate on a response to the coronavirus pandemic may obtain an expedited review and approval of their contemplated venture. (https://www.bloomberg.com/news/articles/2020-03-23/u-s-to-speed-antitrust-reviews-for-firms-teaming-up-on-virus). Specifically, the DOJ and FTC are expected to jointly commit to processing and completing reviews of coronavirus-targeted collaborations in one week or less. The agencies may roll out the details as early as Monday. Continue Reading
The unique EU State aid control law requires, in principle, prior notification by Member States and approval by the Commission of all State aid. During a time of crisis, like the COVID-19 pandemic, EU law allows for a flexible approach for approving urgent State aid. In this post, we discuss the current state of play in the EU and offer some general items to consider for undertakings receiving State aid during this extraordinary time. Continue Reading
On March 10, 2020, the United States District Court for the District of Arizona issued a tentative ruling denying Axon Enterprise’s motion for preliminary injunction and dismissing its complaint against the Federal Trade Commission, due to lack of subject matter jurisdiction.
In response to COVID-19, the FTC’s Premerger Notification Office (PNO) just announced several changes for all Hart-Scott-Rodino (HSR) filings going forward. While these changes have been described as temporary, no specific end date has been identified.
- Hard copy HSR filings will no longer be accepted, until further notice
- No HSR filings whatsoever may be submitted on Monday, March 16.
- Starting at 8:30 a.m. on Tuesday, March 17, HSR filings must be submitted through a new, temporary e-filing system. That system is not yet operational. It will require parties to upload documents to a secure FTP site.
- While this temporary e-filing system is in place, early termination will not be granted for any filing.
The rapidly evolving COVID-19 (coronavirus) situation is impacting local and global companies, disrupting supply chains, creating volatility in the stock market, and causing great concern in local communities. As part of the federal government’s response to the coronavirus outbreak, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have announced that they will use their competition and consumer protection enforcement powers to go after offenders taking advantage of the concerns triggered by the COVID-19 outbreak. The DOJ will focus on “hard-core” Section 1 antitrust violations, like price-fixing of personal health protection products, while the FTC will focus on consumer protection violations, like scammers selling fake coronavirus treatments or vaccines. Continue Reading