There has been a nationwide shortage of infant formula following a recall and temporary closure of a major infant formula manufacturing facility in February 2022. This facility supplied as much as 40% of the nation’s infant formula. In the wake of these events, state attorneys general are on the lookout for unlawful price gouging of infant formula. Sellers of infant formula should make sure that they do not inadvertently run afoul of state price gouging restrictions.
Thomas Tyson is an associate in the Antitrust and Competition Practice Group in the firm's San Francisco office.
A California jury last week handed down what has been reported to be the first antitrust jury verdict involving the cannabis industry. As the cannabis industry continues to grow and evolve, cannabis-related antitrust disputes may well increase.
Continue Reading California Jury Awards Millions to Cannabis Company in Antitrust Case
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 High Risk of Second Requests in the Cannabis Industry
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 Amnesty and Its Punishments: ACPERA and the Future of U.S. Antitrust Cartel Enforcement