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Thomas Dillickrath is a partner in the Antitrust and Competition Practice Group in the firm’s Washington, D.C. office.

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 March 2, Deputy Assistant Attorney General Richard Powers laid out a significant and aggressive criminal enforcement agenda for the Antitrust Division of the Department of Justice. While speaking at the the ABA National Institute on White Collar Crime in San Francisco, CA, Powers began his remarks by noting that the Division’s Criminal Section currently had 18 indicted cases against 10 companies and 42 individuals, including 8 CEOs or Presidents. DAAG Powers also noted that the Section had 146 open grand jury investigations – more than at any time in the last thirty years and “expect[ed] to stay busy this year and beyond.”

Continue Reading Executives Beware: DOJ Antitrust Division is Taking a Hard Look at a Wide Spectrum of Potential Criminal Violations

President Biden recently wrote a letter to FTC Chair Lina Khan urging the Commission to immediately investigate potential anticompetitive behavior in the oil and gas sector. The President noted that gas prices have been rising, while the costs faced by oil and gas companies themselves have decreased. Concerned that the two largest oil and gas companies in the country are set to double their net income over 2019 while the gap between the price of unfinished gasoline and the price at the pump is increasing, he called on the FTC to “bring all of the Commission’s tools to bear if you uncover any wrongdoing.”
Continue Reading Antitrust Scrutiny Heating Up in Oil and Gas Industries

* 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 U.S. Courts Annual Review: Supreme Court

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 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

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 DOJ and FTC Issue Joint Statement Regarding COVID-19 and Antitrust Violations

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.
Continue Reading Arizona District Court Tentatively Dismisses Axon v. FTC

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 DOJ and FTC To Focus On Antitrust and Consumer Protection Violations Relating to Coronavirus

On January 3, 2020, Axon Enterprises Inc. filed a complaint against the Federal Trade Commission in the United States District Court for the District of Arizona challenging the constitutionality of the FTC’s administrative process.  Axon’s complaint marks the latest salvo in a decades-long critique of the disparity between FTC and Department of Justice merger enforcement procedures.
Continue Reading Axon Sues FTC Over Use of Administrative Adjudication in Merger Investigations