On May 23, 2024, the NCAA reached a historic $2.8 billion settlement with former college athletes who had filed an antitrust class action demanding billions in potential compensation allegedly denied to them for decades. This represents a major turning point in college athletics. Read the full Alert on the Duane Morris website.
DOJ and 30 Attorneys General Bring Antitrust Suit Against Live Nation and Ticketmaster
On May 23, 2024, the Department of Justice Antitrust Division (DOJ) and Attorneys General from 29 states and the District of Columbia sued Live Nation and its wholly owned subsidiary, Ticketmaster, for violations of federal antitrust law in the U.S. District Court for the Southern District of New York. United States of America, et al., v. Live Nation Entertainment, Inc., et al., No. 1:24-cv-03973 (S.D.N.Y. May 23, 2024). Among other relief, the government is seeking to require the divestiture of Ticketmaster, a little over a dozen years after DOJ allowed Live Nation to acquire Ticketmaster.
The Complaint alleges that Live Nation “serves as the gatekeeper for the delivery of nearly all live music in America today.” DOJ and the Attorneys General allege that Live Nation controls “around 60% of concert promotions at major concert venues” and that Ticketmaster “controls roughly 80% or more of major concert venues’ primary ticketing for concerts and a growing share of ticket resales in the secondary market.” With that control as leverage, the Complaint alleges that Live Nation and Ticketmaster have violated Sherman Act Sections 1 and 2 and various state competition laws.
DOJ and FTC Launch Public Inquiry into Serial Acquisitions
On March 23, 2024, the Justice Department Antitrust Division (DOJ) and Federal Trade Commission (FTC) jointly issued a Request for Information (RFI) on serial acquisitions and roll-up strategies, a consolidation strategy often used by private equity firms. The RFI seeks information from “any sector or industry in the U.S. economy, including, but not limited to, housing, agriculture, defense, cybersecurity, distribution, construction, aftermarket/repair, and professional services markets. The RFI is intended to complement the federal government’s investigation into healthcare competition.
The public has 60 days to submit comments to the RFI, meaning until July 22, 2024. According to the RFI, public comments will inform FTC and DOJ enforcement priorities and future actions.
Alleged Health Insurance Price-Fixing Cartel Against Multiplan and Insurers
Providers in a putative class action filed on May 7, 2024, claim that Multiplan and certain named insurers in its network are a “cartel” that has agreed to underprice out-of-network reimbursement paid to providers in the Multiplan network in violation of federal antitrust laws.
To read the full text of this post by partner Seth Goldberg, please visit the Duane Morris Health Law Blog.
DOJ Announces Task Force Targeting Anticompetitive Conduct in Health Care Industry
The Department of Justice (DOJ) Antitrust Division’s newly formed Task Force on Health Care Monopolies and Collusion (HCMC) “will guide the division’s enforcement strategy and policy approach in health care, including by facilitating policy advocacy, investigations, and where warranted, civil and criminal enforcement in health care markets,” according to its May 9, 2024 announcement.
The HCMC announcement came on the same day that Assistant Attorney General Jonathan Kanter discussed DOJ’s antitrust enforcement efforts with the Washington Post. In that interview, AAG Kanter stated that “[t]he platformization of health care has resulted in multi-sided giants, intermediaries that have a coordinated stack of businesses that flow together, including payers, including providers, including PBMs, claims processing, banks.” The HCMC “will identify and root out monopolies and collusive practices that increase costs, decrease quality and create single points of failure in the health care industry,” according to DOJ’s press release. Katrina Rouse will lead the HCMC.
The HCMC is yet another effort in the so-called “whole-of-government” approach articulated by the Biden Administration to enforce the antitrust laws, in particular with respect to the health care industry. In March, DOJ, with the Federal Trade Commission and U.S. Department of Health and Human Services, jointly issued a Request for Information requesting public comment on transactions in the health care space. Earlier this month, the agencies extended the comment period by 30 days with the new deadline being June 5, 2024.
FTC Votes to Ban Non-Compete Agreements
On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to approve a final rule banning non-competes with all workers 120 days after publication in the Federal Register, and invalidating existing non-competes with all workers except senior executives. Although the final rule abandons many aspects of the rule proposed in January 2023, the final rule represents a sea change in the law relating to non-compete clauses in the United States. Read the full Alert on the Duane Morris website.
FTC to Vote April 23 on Rule to Ban Noncompete Agreements
The Federal Trade Commission will vote at an open commission meeting to be held virtually on Tuesday, April 23, 2024, at 2:00 p.m. Eastern on its proposed rule banning employers from entering into noncompete agreements with workers. If issued, the final rule would go into effect 60 days following its publication in the Federal Register, and companies would have to be in compliance 180 days after publication. Read more on Duane Morris’ website.
SCOTUS Declines to Review Antitrust ATM Fee Dispute
On April 15, 2024, in Visa Inc., et al., v. National ATM Council, Inc., et al., No. 23-814 (Apr. 15, 2024), the U.S. Supreme Court declined a petition for review submitted by Visa Inc. (“Visa”) and Mastercard Inc. (“Mastercard”) urging the Supreme Court to resolve a circuit split over the correct standard of review courts should use when evaluating motions for class certification. Mastercard and Visa argued that the U.S. Court of Appeals for the D.C. Circuit erred by only requiring plaintiffs to show that questions common to the class predominate and allowing the fact finder to later address issues related to uninjured class members. The Supreme Court denied the petition for review.
The D.C. Circuit’s ruling in Visa v. National ATM Council is required reading for any corporate counsel handling antitrust class actions involving price-fixing allegations and underscores the importance of the standard of review used by courts when considering class certification. Read the full post on the Duane Morris Class Action Defense Blog.
FTC Bureau of Competition Director Says Companies Should Assume Agency Looking at Potential Section 5 Cases
Speaking at the American Bar Association Antitrust Section’s annual Spring Meeting on Friday, April 12, Henry Liu, Director of the Bureau of Competition at the Federal Trade Commission, said that parties that are under an antitrust investigation by the FTC should assume that the agency is looking not only at whether the conduct being investigated violates the Sherman Act, but also whether the conduct may fall into a “gray zone” and thus be subject to the FTC’s authority to police “unfair methods of competition” under Section 5 of the FTC Act.
Liu described this “gray zone” as encompassing conduct where, for technical reasons, the existing case law shows that the Sherman Act is a less attractive theory for the agency. Nonetheless, if the FTC determines that the conduct “harms the competitive process” through nefarious means such as deception or coercive tactics, bringing a Section 5 claim is a viable option. Enforcement of “gray zone” conduct under Section 5 is consistent with the FTC’s 2022 Policy Statement expanding the scope of what the FTC considers unfair methods of competition.
A potential example he cited is an invitation to collude, where there is not yet a reduction in competition. For cases involving such conduct that is “adjacent” to violations of Sections 1 and 2 of the Sherman Act, Liu said that the FTC will not hesitate to bring “standalone” cases under Section 5; however, such standalone enforcement actions remain rare.
Decertification Denied in Antitrust Home-Selling Commission Class Action
On March 26, 2024, Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri denied HomeServices of America’s (“HomeServices”) motion to decertify a class of home sellers alleging that that Defendants violated the Sherman Act by entering into a conspiracy to follow and enforce a rule adopted by the National Association of Realtors (“NAR”) that had the effect of raising commission rates in Moehrl et al. v. The National Association of Realtors et al., No. 1:19-CV-01610 (W.D. Mo. Mar. 26, 2024). HomeServices argued that the class of plaintiffs fail to satisfy Rule 23(b)(3) because trial showed that individual facts and proof predominated over common issues. The Court accepted Plaintiffs’ arguments that its expert sufficiently demonstrated a but-for world through common evidence, satisfying the predominance requirement of Rule 23(b). Moerhl is required reading for any corporate counsel handling antirust class actions involving price-fixing allegations.
Read more on the Duane Morris Class Action Defense Blog.