GCR USA - 22 January 2020
Judge Lorna Schofield of the US District Court for the Southern District of New York turns 64 today. While antitrust was not a focus during her time as a private practitioner, she has become well-acquainted with its intricacies since taking the bench in late 2012. Judge Schofield has presided over the Foreign Currency Exchange antitrust litigation, and over US Airways’s claims that Sabre participated in a conspiracy to raise commission costs.
GCR USA - 21 January 2020
After the holiday for Martin Luther King Jr Day, Congress is back in action. The American Booksellers Association’s antitrust conference seeks to trump all other news on Capitol Hill today, and GCR USA will have you covered tomorrow on what will surely be the talk of the town.
GCR USA - 17 January 2020
Federal Trade Commission member Christine Wilson warned yesterday that antitrust enforcement cannot solve all problems in healthcare. One day earlier, in oral argument before a federal appeals court, her agency defended the scope of its authority to conduct that enforcement. Judge Thomas Hardiman warned at the outset that the argument might go into extra innings – and indeed it did, running longer than two hours. We also have updates on a class action filed by app developers against Facebook; a federal court's ruling in favour of AmEx; and a Supreme Court amicus brief in support of Google.
GCR USA - 16 January 2020
Most countries have only a single agency responsible for conducting antitrust enforcement, but the US has more than 50. In recent years, the US state attorneys general have played a more forceful role in the realm of competition enforcement – best evidenced by a challenge to the T-Mobile/Sprint merger brought by a coalition of states independent from federal enforcers. Assistant attorney general Makan Delrahim told the Wall Street Journal yesterday that a state victory would create “major uncertainty in M&A.” Meanwhile, New York attorney general Letitia James said she did not know if state-only challenges would become a pattern, but she defended their sovereign powers. “As you know, the [state] attorneys general historically have been involved in antitrust cases and we will continue to look at mergers all across this nation in a wide range of industries that are anticompetitive and that hurt consumers”.
GCR USA - 15 January 2020
The T-Mobile/Sprint merger trial heads to the ninth inning today. Only Judge Victor Marrero knows the score going in as the merging companies and a coalition of states make their final arguments before the US District Court for the Southern District of New York. But similar to baseball, litigation can feel like an endless pastime and extra innings may very well be in order. For the integrity of the game and the sake of the court, let us hope nobody is out there signalling what pitch is coming by battering the lid of a trash can.
GCR USA - 14 January 2020
Louisiana State University was crowned college football’s national champion last night. No surprises there, as the team was the favourite in the championship game against Clemson University. The draft vertical merger guidelines the US antitrust agencies issued on Friday also offered few surprises, antitrust practitioners told GCR USA. We have detailed reactions to the draft guidelines, plus Post Holdings and Treehouse Foods abandoning their merger and an update on the Generic Pharmaceuticals Pricing litigation.
GCR USA - 13 January 2020
After more than 34 years, the US antitrust enforcers have taken another swing at producing a set of non-horizontal merger guidelines. Those first published by the Department of Justice in 1984 have become an afterthought for an antitrust apparatus more often focused on mergers between horizontal competitors. This time, both the DOJ and Federal Trade Commission weighed in on the matter. And unlike most new parents, the agencies did not trumpet the birth of their newborn for maximum attention; instead, they announced the draft guidelines in a pair of press releases sent out after 5pm on Friday.
GCR USA - 10 January 2020
All the speakers at the Federal Trade Commission’s workshop yesterday on non-competes in the workplace agreed that, in certain instances, contractual provisions designed to prevent employees from moving to a competitor can be harmful. But the conference delved much deeper into the topic of deciphering right from wrong. The event sparked a day’s worth of nuanced debate over what, if any, actions the FTC should take and if the agency has the evidentiary support to back it up.
GCR USA - 09 January 2020
The most recent House of Representatives antitrust subcommittee hearing back in November might seem like a distant memory, but legislators gave the heads of the US antitrust agencies a reminder on Tuesday with a long list of follow-up questions. Next week, the committee goes on the road. The antitrust subcommittee will host its fifth hearing on competition in digital markets in Boulder, Colorado – closer to the California homes of some of the large technology companies whose conduct the subcommittee is investigating.
GCR USA - 08 January 2020
On this day in 1982, the Department of Justice concluded two monumental antitrust cases. American Telephone & Telegraph agreed to sell its 23 local telephone companies – about two-thirds of its assets – to settle claims it had monopolised a variety of telecommunications services and equipment in violation of federal antitrust law. The same day, the agency dropped its 13-year lawsuit against International Business Machines in which it had alleged monopolisation of “interstate trade and commerce in general purpose digital computers”. Then-assistant attorney general William Baxter said the IBM case was “without merit” and “very weak”. Corded-phones and IBM’s personal computers have since been surpassed, but there will always be new technology-based competitive landscapes to sort out – such as blockchain. And as it happens, IBM is on that.
Data courtesy of FTC.gov