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What antitrust enforcement will look like during a second Trump administration is, like antitrust law, complicated. Notions that Republicans are pro-business and therefore will take a laissez-faire approach to antitrust enforcement are outdated and simplistic. During Trump’s first term, antitrust enforcement was far from moribund, blending traditional Republican preferences for deregulation with a populist skepticism toward Big Tech and market concentration generally. This anomalistic meeting of progressive Democrats and conservative Republicans in the antitrust space even garnered a mash-up moniker – the “Khanservaties” – a group of conservative Republicans including Missouri Senator Josh Hawley and erstwhile Attorney General nominee and former Florida Representative Matt Gaetz, who praised Biden-appointed Federal Trade Commission (FTC) Chair Lina Khan. Vice President-elect J.D. Vance also provided backhanded praise for Khan, stating, “I look at Lina Khan as one of the few people in the Biden administration that I think is doing a pretty good job.” Continue Reading Antitrust During Trump 2.0: It’s Complicated

Leading up to the U.S. presidential election this November, our Antitrust & Competition team continues to offer insights into what antitrust enforcement may look like under the next presidential administration. As we look forward to the next four years, we should also look back on antitrust enforcement under previous recent administrations. Much has been made of the more aggressive and public stance on antitrust enforcement under the Biden administration. The Federal Trade Commission (“FTC”) and the Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) have put forth several significant policy changes and proposed rules, including new merger guidelines and a proposed ban on noncompetes. All that said, at least some of the data may indicate a less radical change in antitrust enforcement under Biden as compared to Trump than the conventional wisdom suggests.Continue Reading Antitrust Under Biden: Taking a Closer Look at the Numbers

Yesterday, August 28th, the Federal Trade Commission (the “FTC”) and the Department of Justice Antitrust Division (the “DOJ”) (the “Antitrust Agencies”), together with the Department of Labor (the “DOL”) and National Labor Relations Board (the “NLRB”), signed a new agreement (the Memorandum of Understanding or “MOU”) that seeks to enhance the ability of the FTC and DOJ to investigate the impact of mergers and acquisitions on labor markets.Continue Reading U.S. Federal Antitrust Agencies Announce Cooperation Initiative with Labor Agencies in Merger Review

On July 3, 2024, Judge Ada Brown of the U.S. District Court for the Northern District of Texas entered a limited, preliminary injunction barring the Federal Trade Commission (“FTC”) from enforcing its controversial Final Rule (“Rule”) which purports to ban almost all non-compete agreements. Importantly, Judge Brown’s preliminary order only enjoined enforcement of the Final Rule against the named plaintiffs who opposed it. On August 20, 2024 – just two weeks before the Rule’s effective date – Judge Brown greatly expanded the scope of her initial ruling by granting summary judgment for the plaintiffs and ordering the Rule be completely “set aside” and “not be enforced or otherwise take effect on September 4, 2024[.]” Judge Brown’s order may be the fatal blow for the Rule, and should end a months-long saga of uncertainty for employers.Continue Reading Final Word on Final Rule? Texas District Court Eviscerates FTC’s Non-Compete Ban

On July 3, District Judge Ada Brown of the Northern District of Texas issued an order enjoining the Federal Trade Commission (“FTC”) from enforcing its “Final Rule” against plaintiffs Ryan, LLC (“Ryan”) and the U.S. Chamber of Commerce (the “Chamber”). If implemented, the Final Rule would effectively render nearly all non-compete agreements unlawful. Accordingly, this opinion was one of the most highly anticipated judicial decisions in antitrust and labor and employment law in recent memory.Continue Reading Not So “Final”? Texas Federal Court Enjoins Enforcement of FTC’s Noncompete Ban, Leaving Future of Commission’s Rule in Doubt

On June 6, 2024, California Attorney General Rob Bonta announced that he led a multistate coalition of eleven (11) state attorneys general in in submitting a comment letter (the “Comment Letter”) in response to the Federal Trade Commission, the U.S. Department of Justice, and the U.S. Department of Health and Human Services’ (together the “Agencies”) request for information regarding consolidation in healthcare by private equity. On March 5, 2024, the Agencies issued a “Request for Information on Consolidation in Healthcare Markets,” on the same day the Agencies hosted a public workshop regarding the impact of private equity investment in the healthcare system. Continue Reading California Attorney General Advocates for Greater Antitrust Enforcement in Private Equity in Healthcare

The health care industry has been a particular focus of antitrust concern in recent years, including recent policy initiatives, private equity warnings, and enforcement actions from both the Department of Justice (DOJ) and Federal Trade Commission (FTC). The new Task Force on Health Care Monopolies and Collusion (HCMC), announced this month by the DOJ, is the latest example of antitrust scrutiny on the industry.Continue Reading New DOJ Health Care Task Force Portends Continued Aggressive Antitrust Enforcement

On April 23, 2024, the Federal Trade Commission (“FTC”) issued its Final Rule banning employers from imposing post-employment noncompete requirements on their workers (the “Final Rule”). The FTC has indicated that it will continue to prioritize enforcement in the healthcare industry, with objectives seeming to include alleviating physician shortages and improving access to healthcare. What the Final Rule means for healthcare organizations generally, and for nonprofits in particular, is not entirely clear and is likely to be challenged. Continue Reading What the FTC’s Noncompete Ban Means for Healthcare

On April 23, 2024, the Federal Trade Commission (the “FTC”) voted 3-2 to issue its final rule (“Final Rule”) banning employers from imposing noncompete clauses on their workers, approving the final rule in a special Open Commission Meeting. Continue Reading FTC Votes to Ban Noncompete Agreements

The Federal Trade Commission (“FTC”) has filed an amicus brief in Teva Branded Pharmaceuticals Products R&D, Inc. v. Amneal Pharmaceuticals of New York, LLC to further the agency’s efforts to promote and protect generic drug and biosimilar competition. In the case, Teva asserts that Amneal’s Abbreviated New Drug Application (“ANDA”) for an asthma inhaler infringes upon five patents it has listed in the FDA’s Orange Book–a challenge that under FDA regulations triggers a 30-month stay of FDA’s approval of the generic inhaler. Amneal’s counterclaims assert that the Teva patents, which relate to the inhaler device and dose counter, rather than the drug itself, were improperly listed and has asked the court for judgment on the pleadings and an order to delist the patents at issue.Continue Reading FTC’s Campaign Against Improper Orange Book Listings Continues with Amicus Brief in Teva’s Challenge of Amneal Asthma Inhaler ANDA