Jun 29, 2020

Congress Reauthorizes the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)


Sections 212-214 of the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)[1] might live to see another day. On June 25, 2020, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, repealing the Act’s sunset provision.[2] ACPERA, enacted in 2004, aimed to encourage antitrust violators to cooperate with government prosecutors and private litigants in antitrust cases. The carrot: if an amnesty applicant into the Department of Justice’s Antitrust Division’s leniency program provided “satisfactory cooperation” to plaintiffs, the applicant’s Sherman Act (or similar state law) civil damages could be reduced to actual, instead of treble,… Read more

Jun 5, 2020

The Failing Firm Defense and Miraculous Recoveries: The Federal Trade Commission’s Warning to Merging Parties and Counsel during COVID-19

Competition Law

The Federal Trade Commission has issued a number of statements regarding its intention to enforce United States antitrust laws during COVID-19. The head of the FTC’s Bureau of Competition, Ian Conner, echoed this commitment in his blog post on May 27, 2020. In the post, Conner stated that the FTC will continue to closely scrutinize failing firm claims by merging parties.[1] Consumers, he said, “deserve the protection of the antitrust laws now as much as ever.”[2] The failing firm defense usually involves the argument that the acquired and the acquiring firms are failing, “which presumably would justify the merger on… Read more

May 21, 2020

COVID-19 and Competition: Antitrust Law During the Global Pandemic


Overview COVID-19’s rapid spread has necessitated collaborations to equip communities with the proper tools to combat the disease. Many have risen to the occasion and worked tirelessly to help protect the health and safety of the United States.  As the DOJ and FTC (the “Agencies”) put it in their March 24th Joint Antitrust Statement, however, “others may use [COVID-19] as an opportunity to subvert competition or prey on vulnerable Americans.”[1] The FTC, DOJ, and Trump Administration have taken measures to guide businesses on how to collaborate legally and have sent forceful reminders about the repercussions of violating antitrust laws during… Read more

May 20, 2020

How Should Co-Ops, Condos and Office Buildings Adjust To New York’s Social Distancing Guidelines?

NY Executive Order

On April 25, 2020, Governor Cuomo promulgated Executive Order 202.17, which requires any individual over the age of two (and able to medically tolerate a face-covering) to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain social distance. For condominiums, cooperatives, and commercial office buildings, the concern is whether the lobby, laundry room, bathroom, and other common areas are considered “public places” where individuals are required to wear face-coverings. There is no official definition of “public space” within any of the executive orders, and therefore, the applicability of Executive… Read more

May 20, 2020

Vendors to Large Retail Bankrupts: Act Quickly to Preserve and Protect Your Rights

Out of Business

With retail clothing companies seeing a 79% decline in business, several prominent retailers have recently filed for bankruptcy – most notably JC Penny, J. Crew (including Madewell) and Neiman Marcus.  As a result, many wholesale vendors of apparel may be having their first ever experience with customer bankruptcies. Sellers must act swiftly when they learn a retail customer has filed. Delay or failure to do so may leave the vendors with little to no means of recovery. When a retailer files for bankruptcy, sellers have a variety of rights under the bankruptcy code and state law.  Two of those most… Read more

Apr 23, 2020

They Don’t Call Us “Counselor” For Nothing: Part Three of Three

Social Distancing

Part One discussed the role of a lawyer as counselor and the importance of sustaining a client’s morale, while Part Two dealt with balancing that morale with the ethical duty to provide candid advice.  Part Three will discuss the care and handling of clients when giving candid advice.  How does one best present the client with difficult, unpalatable alternatives? When deciding what advice to give, when to give it, and how to give it, counsel also has to assess the client’s personality.  This is where the theory underlying the Rules of Professional Conduct meets reality.  “The Rules of Professional Conduct… Read more

Apr 15, 2020

They Don’t Call Us “Counselor” For Nothing: Part Two of Three

Attorney/Client Conversation

In Part One, the importance of sustaining a client’s morale was discussed.  Sustaining morale becomes particularly difficult when rendering candid advice.  Part Two will discuss the balance between sustaining morale and rendering candid advice. Rule 2.1 of the Rules of Professional Conduct, in the part entitled “Counselor,” addresses “giving candid advice”: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. The Comment following the Rule 2.1 reveals the delicate balance a “counselor”… Read more

Apr 13, 2020

Updates: New York Federal & State Courts

NY Courts

In less than two weeks, there have been several changes to the response of the New York Federal & State Courts to COVID-19.  This blog post is to provide an update to our prior blog post that may be found here. New York Federal Courts SDNY All jury trials are now suspended until at least June 1, 2020. In-court appearances are restricted to “emergency matters” NDNY Most criminal proceedings are now temporarily being held remotely via Skype. New York State Court Court of Appeals  The Court of Appeals will not hear oral argument during the April/May session and the building… Read more

Apr 9, 2020

They Don’t Call Us “Counselor” For Nothing: Part One of Three

Counselor helping clients

Greetings from the Smith, Gambrell & Russell Litigation Blog: During challenging times like these, everyone could use a trusted advisor. With this in mind, the SGR Litigation Blog presents a three-part post entitled “They Don’t Call Us ‘Counselor’ for Nothing.” We hope you enjoy this series, which examines how attorneys counsel their clients by doing more than just providing legal advice. They Don’t Call Us “Counselor” For Nothing: Part One of Three The title “counselor” is often applied to lawyers; however, it connotes far more than one who gives legal advice.[1]  We have ethical and professional responsibilities to “counsel” clients,… Read more