Jun 29, 2020

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

Anticompetition

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

Healthcare

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


Jan 16, 2020

Okay, Google: Did You Violate U.S. Antitrust Laws?

Google[1] rang in the New Year with a fresh lawsuit, filed against it on November 25, 2019, looming in the United States District Court for the Northern District of Georgia by Inform, Inc. (“Inform”), an online advertising company.[2] Nothing says “Merry, Merry” and “Happy New Year” like a fresh batch of anticompetitive claims against the search engine we all resorted to for our obligatory “what to give Dad” and “30-day cleanse” searches.  The suit alleges that “[t]o maximize [Google’s] advertising profits, to protect their valuable monopolies against potential competitive threats, and to extend Defendants’ [monopolies] globally and across digital devices,… Read more