USA Tipline

Smoke and mirrors: The Tipline for 25 June 2020

GCR USA - 25 June 2020

If you have ever attended an antitrust conference, you’ve likely heard lawyers praise US enforcement as being one of the few areas of government floating above the whims of politics. During testimony before the House Judiciary Committee on Wednesday, a whistleblower at the Department of Justice’s antitrust division said certain investigations were anything but. “It didn’t feel like a good-faith calling of balls and strikes that I had been used to seeing,” he said.

Five floors up: The Tipline for 24 June 2020

GCR USA - 24 June 2020

A DOJ attorney plans to testify today that the agency conducted in-depth investigations into 10 cannabis mergers because of the attorney general’s “personal dislike of the industry”. In his prepared remarks to the House Judiciary Committee, John Elias said political leadership at the agency continuously overruled recommendations from career staff that these mergers appeared unlikely to raise competitive concerns. According to Elias, assistant attorney general Makan Delrahim acknowledged these probes “were motivated by the fact that the cannabis industry is unpopular ‘on the fifth floor’” – allegedly a reference to Attorney General William Barr. In response, the DOJ says Elias has not presented any evidence to support his allegations and that the agency’s office of professional responsibility “determined that the Division acted reasonably and appropriately” in investigating the marijuana industry.

Competitive impurities in securities: The Tipline for 23 June 2020

GCR USA - 23 June 2020

The Securities and Exchange Commission ran away with the antitrust news cycle yesterday. The Supreme Court upheld the SEC’s disgorgement powers on Monday morning, signalling that the Federal Trade Commission's ability to recoup ill-gotten gains likely remains safe. Later in the day, assistant attorney general Makan Delrahim and SEC chair Jay Clayton teamed up – in person – to present ramped-up cooperation between the two agencies.

Sunset: The Tipline for 22 June 2020

GCR USA - 22 June 2020

Summer solstice came and passed this weekend. You’re likely longing for the good ole days of cramming shoulder-to-shoulder inside a sweaty metro car, zig-zagging an obstacle course of tourists blocking you from that meeting you’re already late to and, of course, advising your clients that successfully self-reporting an antitrust violation would limit their liability from trebled damages. But the Antitrust Criminal Penalty Enhancement and Reform Act sunsets today. Legislation that would permanently reinstate the law sits before both chambers, but it appears they are preoccupied with more pressing matters.

Juneteenth: The Tipline for 19 June 2020

GCR USA - 19 June 2020

Today marks Juneteenth, commemorating the 1865 freeing of enslaved African Americans in the farthest reaches of the former Confederacy: western Texas. The day has been a state holiday since 1980 but only recently gained widespread attention nationwide. Several prominent companies are closed for the holiday today – as is Paul Weiss, the new firm of two movers featured in today’s Tipline. Also in today’s briefing, Farelogix finds itself a buyer after the UK antitrust enforcer scuttled its deal with Sabre, and a group of Democratic senators call for the antitrust agencies to resume work on new vertical merger guidelines.

It’s 2:30 somewhere: The Tipline for 18 June 2020

GCR USA - 18 June 2020

Happy hour times have moved up for some while working from home. Executives at technology companies may find themselves suggesting an especially early time this week – say 2:30pm? – after the Department of Justice proposed changes to a 1996 law that protects online platforms from lawsuits. Also in today’s Tipline, chief executives at Facebook and Google say they are willing to testify before the House antitrust subcommittee and Solicitor General Noel Francisco resigns, citing a desire to return to private practice and spend more time with his family.

Whistleblower: The Tipline for 17 June 2020

GCR USA - 17 June 2020

If the Department of Justice’s antitrust division is mentioned on the front page of your newspaper this morning, it's not for securing a 40-month prison sentence for the former chief executive of a national food brand. House Judiciary Committee chair Jerrold Nadler announced on Tuesday that he had subpoenaed two DOJ whistleblowers to testify next week about the “unprecedented politicisation” of the agency. Nadler said one of the whistleblowers, Antitrust Division attorney John Elias, “can speak to improperly motivated activity”.

We don’t need no arbitration: The Tipline for 16 June 2020

GCR USA - 16 June 2020

Antitrust plaintiffs have always had it tough and a wave of judicial opinions favourable to defendants seeking to force arbitration has been yet another brick in the wall. Just ask dental supply distributor Archer & White Sales, which has spent the last eight years seeking to present its anticompetitive boycott claims to a Texas jury. With questions surrounding the arbitrability of their lawsuit now heading to the Supreme Court for a second time, GCR USA imagines Archer feels like a 1980s teenager blaring one of Pink Floyd’s anthems of rebellion: “Hey, teacher! Leave them plaintiffs alone!”

Interstate competition: The Tipline for 15 June 2020

GCR USA - 15 June 2020

While most sports remain shut down in the US, Florida got a jump last week on the fierce competition between colleges for athletes. The state’s governor, Ron DeSantis, signed a law that allows college athletes to soon profit from use of their names, images, and likenesses. The law enters into force more than a year before similar laws in California and Colorado take effect. At the signing ceremony at the University of Miami, DeSantis said the new law makes any college in the state a “great landing spot” for top recruits. Game on. Also in today’s Tipline, we have a last-minute dispute between the Department of Justice and former Bumble Bee chief executive Christopher Lischewski over who can speak at tomorrow’s sentencing.

Personal news: The Tipline for 12 June 2020

GCR USA - 12 June 2020

Employment restrictions made national headlines this week as Amazon sued former cloud computing marketing executive Brian Hall for taking a job at Google, aiming to enforce a non-compete agreement. In a widely shared tweet on Monday, Hall wrote “ummm some personal news?” with a link to a news story on the lawsuit. While Amazon’s move sparked debate on non-competes, fast food workers continue to bring legal challenges to “no-poach” contractual restrictions on their job mobility – and in these cases, employers typically want to stay out of court. In today’s Tipline, we have questions from an appellate judge on a fast food chain’s arguments on arbitration, plus a Hawaiian brewing divestiture.

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