At the American Bar Association’s recent antitrust meeting in Washington, D.C., the Federal Trade Commission (FTC) Office of Policy and Coordination’s Deputy Assistant Director Synda Mark cautioned companies seeking to collaborate on environmental initiatives that they are not exempt from antitrust enforcement. Mark commented during a panel discussion that antitrust officials will not “turn a blind eye” to anticompetitive conduct, despite corporate promises of the environmental benefits of collaborative conduct, noting that the FTC works only to prevent economic harms and that environmental justice goals do not “seep into the antitrust analysis.” Read the full Alert on the Duane Morris website.
NCAA Student-Athlete Settlement Proposal Takes Its Best Shot at Resolving Three Antitrust Cases
On July 26, 2024, attorneys for the NCAA, the Power Five conferences and classes of college athletes filed a motion for preliminary approval of a settlement agreement to resolve three antitrust litigations: House v. NCAA, Hubbard v. NCAA and Carter v. NCAA. Read the full Alert on the Duane Morris website.
Billion-Dollar Settlement to Resolve Antitrust Litigation Will Impact Student-Athletes and NCAA Enforcement
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.
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.
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.
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.
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.
DOJ and 16 State Attorneys General Sue Apple for Monopolization
Continuing the government’s antitrust enforcement campaign against the tech industry, the DOJ Antitrust Division, along with 16 states, today sued Apple Inc., in federal court in New Jersey, making sweeping allegations of a widespread scheme to monopolize the market for smartphones in the United States. Specifically, the government plaintiffs allege that Apple violated Section 2 of the Sherman Act as well as Wisconsin and New Jersey state antitrust laws. With this lawsuit, the U.S. antitrust agencies now have pending monopolization actions against all four “big tech” companies: Apple, Google, Meta and Amazon.
The complaint alleges that Apple has a monopoly in two markets, the “smartphone” market and the narrower “performance smartphone” market, and that it has maintained its monopoly in both markets by anti-competitive restrictions on app developers and potential rivals. According to the complaint, these restrictions have allowed Apple to “extract higher fees, thwart innovation, offer a less secure or degraded user experience, and throttle competitive alternatives.”
Like the other government cases against the tech industry, this case promises to be a long drawn-out battle.
White House Announces New Strike Force on Unfair and Illegal Pricing
The federal government is taking a more aggressive approach to lowering prices and costs for American consumers. On March 5, 2024, President Joseph Biden announced a new Strike Force on Unfair and Illegal Pricing co-chaired by the Department of Justice (DOJ) and Federal Trade Commission (FTC). The strike force is yet another attempt by the federal government to implement the president’s July 2021 Executive Order on Promoting Competition in the American Economy.
Federal and State Antitrust Enforcers Reiterate Focus on Healthcare
Federal and state antitrust enforcers are keenly focused on potential anticompetitive conduct in the healthcare space.
Federal Trade Commission Chair Lina Kahn recently noted that “the FTC is squarely focused on tackling illegal business practices that deprive Americans of access to affordable and innovative healthcare” in a speech to the American Medical Association’s national advocacy conference. According to Chair Kahn, medical professional consistently express frustration to the FTC “about how the business of healthcare today forces many [medical providers] to subordinate [their] own medical judgment to corporate decision-makers at the expense of patient health.” In response to those complaints, Chair Khan highlighted a few recent enforcement efforts, including scrutiny of group purchasing organizations, drug wholesalers, and pharmacy benefit managers; tackling unlawful consolidation in healthcare markets and roll-ups of healthcare providers. She also touted the FTC’s work protecting healthcare workers, tackling unlawful practices by pharmaceutical companies, including suits to block two major pharmaceutical mergers, and protecting patient privacy and data.
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