Amended California Price Gouging Law Closes Potential Loopholes

California Penal Code § 396 prohibits price gouging in California during a state of emergency. California enacted a few amendments to Section 396 that are effective now.  As explained in more detail below, among other things, the amendments close potential loopholes relating to e-commerce, sales of new products, and the relevant benchmark date for pre-emergency prices. Continue Reading

Digital Platforms — New EU Regulations and Competition Law Tools

The ever increasing market power and often criticised conduct of data driven platforms is not new, but lately the efforts to tackle these appear to have taken a decisive turn. We are now on the verge of new rules and tools to tackle the competition issues arising with the tech giants.

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Is There an HSR Sea Change on the Horizon? Advance Notice Seeks Information on Possible Amendments to Numerous Provisions of the HSR Rules

At the same time as it issued its notice of proposed rulemaking expanding the definition of “person,” the Federal Trade Commission (“FTC”) issued an advance notice of proposed rulemaking (“ANPRM”) to request information related to seven topics “to help determine the path” for future amendments to the HSR Rules.  In explaining the reasons for the ANPRM, the FTC expressed its strong interest in making sure the Rules are “as current and relevant as possible,”  and observed that certain of the Rules, some of which have not been changed since they were first promulgated in 1978, may need updating.  The ANPRM contains more than forty pages of questions soliciting information to help determine the need for “potential future amendments to numerous provisions” of the Rules. Continue Reading

Tell Me More – Antitrust Agencies to Demand More Information from Investment Funds

The Federal Trade Commission (“FTC”) recently issued a notice of proposed rulemaking to amend the premerger notification rules (the “Rules”) that implement the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) to change the definition of “person” and create a new exemption.  The new definition of person is specifically designed to obtain more information from certain investment entities, such as investment funds and master limited partnerships, by including “associates” in the definition. Continue Reading

DOJ Antitrust Division Releases New Merger Remedies Manual

On September 3, 2020, the DOJ’s Antitrust Division released its Merger Remedies Manual.  The manual provides important guidance on what DOJ considers to be adequate solutions to addressing competitive issues in M&A deals challenged by DOJ.  Several key points are identified below. Continue Reading

The European Commission Adopts White Paper on Foreign Subsidies – A Trend Towards Protectionism on a Global Level?

As State aid measures granted by EU Member States continue to surge in the aftermath of the COVID-19 outbreak and ongoing pandemic, the European Commission (“Commission”) has turned to subsidies coming from non-EU countries.

On 17 June, the Commission announced that it had adopted a consultative White Paper which sets out proposed new legal tools to deal with the distortive effects caused by foreign subsidies in the European Single Market. With this, it opened a public consultation seeking input from stakeholders on the proposals set out in the White Paper. The public consultation will be open until 23 September 2020.

With the benefit of some distance since the issuance of this White Paper, we assess the proposal and the responses to it. Continue Reading

U.S. Courts Annual Review: Supreme Court

* Reprinted with permission from Global Competition Review. The full version of GCR’s US Courts Annual Review, published in July 2020, is available here.

The United States Supreme Court’s single antitrust case of the 2019 term, Apple, Inc v. Pepper upheld the long-standing and often criticized direct purchaser rule in the realm of sales through iPhone apps and other online sales platforms. The direct purchaser rule, established through the Supreme Court’s decisions in Hanover Shoe v. United Shoe Machinery Co and Illinois Brick Co v. Illinois limited standing to “the overcharged direct purchaser, and not others in the chain of manufacture or distribution.” In Apple v. Pepper, the Court grappled with these concepts in the virtual retail space where the class plaintiffs alleged that Apple’s 30 percent fee on sales of iPhone applications through its App Store represents a monopoly overcharge that should be recoverable by purchasers of the apps. The Court considered whether the developers of iPhone applications, rather than the consumers were more directly harmed by Apple’s alleged monopoly. Continue Reading

SEC and DOJ Adopt Memorandum of Understanding to Formalize Interagency Cooperation in the Securities Industry

On June 22, 2020, Assistant Attorney General Makan Delrahim, head of the Antitrust Division at the Department of Justice, and Jay Clayton, Chairman of the Securities and Exchange Commission, signed a Memorandum of Understanding (“MOU”) concerning “Cooperation with Respect to Promoting Competitive Conditions in the Securities Industry.” Continue Reading

Maybe the FTC Can’t Take That to the Bank: The Supreme Court’s Decision in Liu v. SEC and Its Implications for the FTC’s Ability to Seek Equitable Monetary Relief

On July 9, 2020, the U.S. Supreme Court granted petitions for certiorari in FTC v. Credit Bureau Center and AMG Capital Management, LLC v. FTC, cases that question the Federal Trade Commission’s authority to demand equitable monetary relief such as restitution and disgorgement under Section 13(b) of the FTC Act, which permits courts to issue “injunction[s]”  without express reference to equitable monetary relief. The Court’s decision in these cases will have sweeping ramifications for the FTC, which has referred to its efforts to obtain disgorgement under Section 13(b) of the FTC Act as “a cornerstone of the FTC’s enforcement program for more than 30 years.”[1] Continue Reading

High Risk of Second Requests in the Cannabis Industry

The cannabis industry faced heightened antitrust scrutiny from the Department of Justice (DOJ) in 2019.  There were public reports regarding several “Second Requests” seeking information about potential cannabis transactions.  Second Requests are a part of expensive and time-consuming antitrust investigations typically issued in the approximately 2 percent of transactions that present significant anticompetitive concerns.  To have several Second Requests within a short period of time in the same industry, particularly in an emerging industry such as cannabis, appeared unusual to many observers.  Recent events have shed light on some possible reasons for DOJ’s heightened focus. Continue Reading

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