The American Bar Association Antitrust Law Section held its annual Spring Meeting from April 2 to 5 in Washington, DC, where federal, state, and international antitrust enforcers shared key updates and enforcement priorities. At the Spring Meeting, antitrust agencies signaled continued scrutiny of mergers, noncompete agreements, and Big Tech – plus an uptick in state-level enforcement and continued consumer protection activity – regardless of changes in administration.
US agencies are increasingly scrutinizing consummated mergers from years past, including Live Nation’s purchase of Ticketmaster and Meta’s acquisitions of Instagram and WhatsApp.
Reports indicate that, over the past three years, companies have abandoned 37 deals in the face of Federal Trade Commission pressure.
Merger activity in oil and gas markets remains high, and although agencies are scrutinizing these deals, they engaged in minimal enforcement activity this quarter.
EUROPEAN UNION
Court of Justice of the European Union Advocate General Nicholas Emiliou issued his opinion in the Illumina/Grail case, concluding that Article 22 of the EU Merger Regulation is not the European solution for dealing with “killer acquisitions.”
The European Commission (EC) issued a competition policy brief on non-price competition in EU merger control, noting that it is increasingly evaluating non-price competition parameters alongside traditional price effects for its merger reviews.
The EC suspects Kingspan to have intentionally, or negligently, provided incorrect, incomplete and misleading information while it investigated the company’s planned acquisition of Trimo in 2021.
UNITED KINGDOM
The Digital Markets, Competition and Consumers Act will grant the Competition & Markets Authority with powers to enforce the new digital markets competition regime and will apply to firms that are designated as having strategic market status.
In May 2024, the European Commission published a Competition Policy Brief classifying certain agreements related to labor markets as serious antitrust infringements. According to the Commission, so-called wage-fixing and no-poach agreements can only be justified in exceptional cases. The Brief follows the first unannounced inspections by the Commission concerning labor market agreements in Germany and Spain in the online meal ordering and delivery industry. It is vital that companies operating in Europe focus on educating their recruiting and human resources departments on antitrust rules to avoid severe fines.
LABOR MARKETS ON THE AGENDA
The Commission’s Competition Policy Brief could be interpreted as a warning for companies exposed to tight labor markets: Restrictive labor market agreements between competitors will be taken as seriously as price-related cartels. Companies must also bear in mind that competitors for labor are not limited to those companies with which they compete to sell products or services. It is sufficient that they compete for the same employees.
Given that restrictions on competition in labor markets mainly affect national markets, the main investigators will be (and already are) national competition authorities.
WHAT AGREEMENTS ARE CAUGHT
The following types of labor market agreements are considered potentially problematic:
No-poach agreements: In some cases, employers (in writing or orally) agree not to steal employees from each other. Such agreements can take different forms: In the case of nonsolicitation or no-cold-calling agreements, companies agree not to actively approach the other companies’ employees with a job opportunity. More far-reaching are no-hire agreements, i.e., companies agree not to hire (actively or passively) employees of other parties to the agreement. As a matter of principle, all forms of no-poach agreements in the Commission’s view constitute market sharing (supply-source sharing) within the meaning of Article 101(1)(c) of the Treaty on the Functioning of the European Union (TFEU) and therefore form a competition risk to be sanctioned.
Wage-fixing agreements: Sometimes, employers agree to fix wages or other types of compensation or benefits for their respective employees. The Commission considers these agreements akin to price fixing within the meaning of Article 101(1)(a) of the TFEU.
The Commission does acknowledge that no-poach agreements may pursue a legitimate objective by incentivizing companies to invest in training their own employees without fearing that they would be later lured away by competitors, and by preventing employees from taking non-patent intellectual property rights (such as trade secrets) to competitors. However, both types of agreements “reveal a sufficient degree of harm to competition” such that the Commission does not see a need to examine their effects. Due to their alleged negative impact on employees’ wages, firm productivity and innovation, they are regarded “by their very nature” as harmful.
The above does not apply, however, to collective bargaining agreements between organizations representing employers and employees, which are explicitly outside the scope of the Commission’s Competition Policy Brief. The Court of Justice of the European Union (CJEU) recognized that certain restrictions of competition are inherent in collective agreements, which [...]
The Federal Trade Commission (FTC) and US Department of Justice have begun implementing the 2023 Merger Guidelines in their enforcement actions
During a virtual workshop, the FTC highlighted its focus on private equity (PE) acquisitions of healthcare service providers and expressed concerns about PE in healthcare
Artificial intelligence’s antitrust implications continue to draw FTC scrutiny
The European Commission (EC) used its super-simplified procedure in about one-third of all merger decisions in Q1 2024
EC regulators are taking an increasingly vigilant approach to merger control review to ensure market dynamics remain pro-competitive and pro-consumer
When it comes to antitrust criminal enforcement, 2023 will be remembered as the year when the US Department of Justice’s (DOJ) Antitrust Division redefined and tested the outer boundaries of its authority. This report looks back at the key events from the DOJ’s year in criminal antitrust enforcement.
Here’s a glimpse of what’s inside:
Despite four straight losses and a voluntary dismissal in labor market cases, the DOJ remains undeterred in bringing additional criminal wage-fixing and no-poach suits.
DOJ’s Procurement Collusion Strike Force secured several guilty pleas and stiff penalties in 2023 and will most likely continue pursuing aggressive investigative and litigation strategies moving forward.
The nearly decade-long investigation of the generic drug industry appears to be ending after the DOJ recently resolved and dismissed the remaining cases.
Deputy Attorney General Lisa Monaco highlighted cybersecurity, tech and national security as areas of heightened risk and thus heightened scrutiny, so corporations in these markets should take heed of the DOJ’s emphasis on corporate compliance in 2024.
A three-judge panel from the US Court of Appeals for the Fourth Circuit overturned an executive’s bid-rigging antitrust conviction, holding that the district court erred in applying the per se standard to the executive’s alleged bid-rigging conduct.
The executive, Brent Brewbaker, rigged bids between his former employer, Contech, and its distributor, Pomona Pipe Products. The Fourth Circuit found that while Contech and Pomona both submitted competing bids for North Carolina Department of Transportation (NCDOT) projects, and Contech coordinated with Pomona to make Contech’s bids slightly higher priced, this conduct could not be deemed inherently unlawful under prior precedent because the entities had a manufacturer-distributor arrangement and were not simply direct competitors. In particular, the Fourth Circuit noted that manufacturer-distributor relationships such as the one between Contech and Pomona do not inherently lead to anticompetitive harm and may enhance competition.
Therefore, given the kind of relationship Contech and Pomona had, the Fourth Circuit held that the district court should have analyzed the conduct under the rule of reason to weigh the competitive implications of the parties’ agreement and conduct.
BACKGROUND
Contech manufactured and sold aluminum products.
Pomona distributed Contech’s aluminum products and was Contech’s exclusive dealer in North Carolina.
NCDOT used a bidding process for aluminum structure projects throughout the state. These projects required both the aluminum product and the services to install the aluminum structures.
Contech, Pomona and a third company were the consistent bidders for the NCDOT projects.
When either Contech or Pomona won a bid for a project, each would fulfill its contract using the other’s supply or services. Pomona, therefore, served as Contech’s “dealer” with Contech supplying Pomona the aluminum it needed to use in the projects Pomona eventually won; vice versa, Pomona provided necessary services to Contech when Contech won a bid. Neither Contech nor Pomona could win a bid without the products or services of the other.
In 2019, Brewbaker took charge of Contech’s bidding for these NCDOT projects and began intentionally submitting losing bids to enable Pomona to win by first asking for Pomona’s total bid price and then adding a markup to Contech’s bid price before submitting the bid to NCDOT.
DOJ alleged that Contech and Pomona engaged in bid rigging because they directly competed against each other’s separate bids. Brewbaker and Contech were indicted for violating Section 1 of the Sherman Act and conspiracy to commit mail and wire fraud.
Contech pleaded guilty to bid rigging and one fraud count.
Brewbaker proceeded to trial, and the district court convicted him of bid rigging and five other fraud-related counts (which were not overturned by the Fourth Circuit), upon concluding that Contech and Pomona’s conduct fell squarely within the definition of antitrust “bid rigging” under Section 1 of the Sherman Act.
HOW THE DECISION WAS REACHED
The Fourth Circuit explained that the rule of reason standard is the default framework used to scrutinize most business practices under the antitrust laws. It weighs [...]
In the first half of 2023, antitrust enforcers remained remarkably busy both in the United States (US) and across the European Union (EU). The US Department of Justice’s (DOJ’s) Antitrust Division (Division) and the Federal Trade Commission (FTC) have continued their aggressive and novel effort to drag antitrust enforcement into the labor markets. The DOJ Procurement Collusion Strike Force (PCSF) has pursued its crackdown on antitrust and fraud involving government procurement with a number of recent cases. And DOJ has pushed the boundaries under Section 2 of the Sherman Act—both by revitalizing the criminal provisions of the law and by pursuing “attempts” to monopolize criminally. The European Union has also kept the pressure on those doing business overseas, imposing significant fines in recent matters and upgrading its online leniency program to make it easier for companies to report wrongdoing.
In this installment of Cartel Corner, we examine this continued aggressiveness toward antitrust enforcement. While these government enforcement efforts have not always been successful, they have nonetheless reframed the landscape for many companies and individuals. What was once thought of as a civil antitrust violation at worst—or no violation at all—is now often pursued criminally. And antitrust enforcers are speaking in more strident tones as they attempt to remake, in certain ways, the way companies do business in the United States and abroad.
Whether antitrust enforcers are ultimately successful remains to be seen. Nonetheless, the trend is real, and it is one that all companies should be prepared to address in the weeks and months to come.
This Review provides legal counsel and their teams easy reference guidance on essential EU competition law developments covering key areas of law and policy. Topics covered include:
In line with the evolution of the economy and the ongoing growth of online business and global trade, we’re seeing a corresponding increase in competition regulation and a rise in enforcement across all authorities. In our latest International News, we take a deep dive into the issues at play.
The growth of the online economy has triggered the US Federal Trade Commission’s (FTC) update of its 20 year old .com Disclosures: How to Make Effective Disclosures in Digital Advertising guide, and the development of an analytical framework for all digital distribution across the European Union. In just one seismic shift under the new EU Vertical Block Exemption Regulation 2022/720, dual-pricing, i.e., setting different wholesale prices for online/offline sales by the same distributor, is no longer considered a hardcore restriction unless its purpose is to prevent the effective use of the internet to sell the goods or services.
In the United States, there is an increased focus on anticompetitive mergers and acquisitions (M&A). The Biden Administration, the Department of Justice Antitrust Division, and the FTC have all stated that the regulatory landscape needs to be reshaped to better reflect dynamic markets, and their priority is the aggressive pursuit of litigation against offending parties rather than the granting of consent decrees. The tendency to “sin first and beg forgiveness later” will emphatically no longer work, as a recent French gun-jumping case demonstrates.
Both the United States and the European Union have also turned their attention to investigating wage fixing and no-poach labour market violations that are not connected with M&A or business collaborations. It’s clear that competition/antitrust authorities are determined to expand their remit.
Without question, 2022 has been a remarkably busy time for the US Department of Justice’s (DOJ’s) Antitrust Division (Division). Over just a few months, the Division rolled out meaningful revisions to its leniency policy aimed at encouraging prompt reporting of criminal violations, announced that it will (for the first time in nearly 50 years) bring criminal monopolization cases under Section 2 of the Sherman Act, continued to increase enforcement resources, and brought a number of new cases and obtained multiple guilty pleas.
However, activity does not always mean success. If there is any theme that defines the Division’s efforts over the last quarter, it is this: If at first you don’t succeed, try, try again. That is exactly what the Division has done. It tried two labor markets cases, ultimately losing both on a new and untested legal theory. And, over strong objections from a district court, the Division pursued an unprecedented third trial against those in the broiler chicken industry, resulting in a full acquittal for all defendants. None of this, however, has deterred the Division from continuing to pursue new investigations and bring new cases under novel legal theories.
In this installment of Cartel Corner, we examine recent and significant developments in antitrust criminal enforcement and profile what the Division has highlighted as its key enforcement priorities. If the past is prologue, we are bound to see more aggressive antitrust enforcement in the months to come, testing the boundaries of current antitrust law. Whether the Division can ultimately shift those boundaries, however, remains to be seen.