According to people with knowledge of the matter, the Federal Trade Commission is conducting a preliminary investigation of soft drink companies to determine whether their pricing practices in the soft drink market segment violate the price discrimination prohibitions of the Robinson-Patman Act (the “RPA”). Section 2(a) of the RPA makes it unlawful for a supplier to discriminate in price between competing resellers of “commodities of like grade and quality” when the effect of such discrimination is to injure competition.

Continue Reading A Blast from the Past: FTC Bringing Back Enforcement of Robinson-Patman Act

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a broad proposed rule that would ban employers from imposing noncompete clauses on their workers. The FTC press release announcing the proposed rule states that noncompete clauses—which apply to about one in five American workers—suppress wages, hamper innovation, block entrepreneurs from starting new businesses and reduce American workers’ earnings between $250 billion and $296 billion per year.[1] The proposed rule would prohibit employers from: (1) entering into or attempting to enter into a noncompete with a worker; (2) maintaining a noncompete with a worker; or (3) representing to a worker, under certain circumstances, that the worker is subject to a noncompete. The term “worker” covers paid staff in addition to independent contractors and unpaid staff. The proposed rule does not apply to noncompete provisions imposed upon 25% owners of a business in transaction documents related to the sale of the business. The proposal is subject to a 60-day public comment period commencing when the Federal Register publishes the proposed rule.

Continue Reading FTC Seeks to Ban Noncompete Agreements in Employment Contracts

On November 10, 2022, the Federal Trade Commission issued its “Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act.” The Statement replaces prior guidance on the subject that was rescinded by the FTC on July 1, 2021[1] and “supersedes all prior FTC policy statements and advisory guidance on the scope and meaning of unfair methods of competition under Section 5 of the FTC Act.”

Continue Reading FTC Policy Statement on the Scope of Unfair Methods of Competition – A Broad But Vague Warning

In her September 20, 2022 statement before the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, Federal Trade Commission (“FTC”) Chairwoman Lina Kahn emphasized the FTC’s continued work combating repair restrictions that allegedly harm consumers, explaining that the FTC is “prioritizing action against business practices that unlawfully restrict consumers’ ability to repair their products, costing them more over the long term.”[1]

Continue Reading Federal Trade Commission Focused on Right to Repair Restrictions

Representing a sizable portion of the American economy, few industries in the United States have received more attention from the press, legislators, and antitrust agencies than the healthcare industry—particularly in recent years. Recent developments at the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) reaffirm that healthcare remains a top antitrust enforcement priorities in the United States.

Continue Reading U.S. Healthcare Industry Remains Antitrust Enforcement Priority

Since President Biden’s July 2021 direction to the Federal Trade Commission (“FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” the FTC has ratcheted up its scrutiny of and investigations into non-compete agreements and other restrictive covenants. Now, the FTC has expanded beyond post-employment restrictive covenants to tackle “sale of business” non-competes. Most recently, the FTC voted in favor of a deal-changing proposed order against ARKO Corp. related to its 2021 acquisition of sixty fuel outlets from Corrigan Oil Company.

Continue Reading Buyer (and Seller) Beware: The FTC Is Coming for Your M&A Non-Competes

On May 18, a coalition of 235 consumer, environmental, and public interest groups penned a petition urging the Federal Trade Commission (“FTC”) to investigate alleged anticompetitive business practices undertaken by electric utilities, pursuant to Article 6(b) of the FTC Act, which empowers the agency to conduct a broad investigative study and request information. Sec. 6(b), 15 U.S.C. § 46(b).

Continue Reading Federal Trade Commission Petitioned To Investigate Electric Utilities