antitrust – Antitrust Law Blog

January 16, 2025January 16, 2025 by Sarah O'Laughlin Kulik

FTC and DOJ Issue New Antitrust Guidelines for Business Activities Affecting Workers

The FTC and DOJ Antitrust Division issued joint Antitrust Guidelines for Business Activities Affecting Workers purporting to explain how both the FTC and DOJ assess whether business practices affecting workers violate the antitrust laws. The new guidance is intended to replace the 2016 Antitrust Guidance for Human Resource Professionals and focuses on activity affecting competition in labor markets. In particular, the guidance stresses that agreements between businesses not to hire each other’s workers or agreements to fix wages, including by use of a third-party algorithm, may constitute criminal violations of the antitrust laws. It also discusses other types of business practices that can carry antitrust risk, such as information sharing, non-compete agreements, and non-disclosure agreements. The agencies periodically issue non-binding guidance such as this one which is intended as readable, practical guidance that will assist businesses in complying with the existing antitrust laws.

The impact of the new guidance is unclear given the timing of the release and how it was passed by the FTC. The issuance comes just days before President-elect Trump is set to take office, and the FTC voted to issue the new guidance by a partisan 3-2 vote. In particular, current FTC Commissioner Andrew Ferguson, who President-elect Trump plans to appoint the new Chair of the FTC, issued a dissent taking the position that “the Biden-Harris FTC announcing its views on how to comply with the antitrust laws in the future is a senseless waste of Commission resources” because “the Biden-Harris FTC has no future.” Fellow Republican Commissioner Melissa Holyoak joined in the dissent. It is possible that the newly constituted Commission under the new Trump Administration could withdraw this guidance and return to the 2016 Antitrust Guidance until it has the time to issue guidance reflecting the new Commission’s enforcement position.

January 14, 2025 by William Shotzbarger

Large No-Poach Class Settlement Gets Preliminary Approval in District of Connecticut

A putative class of aerospace workers recently obtained preliminary approval of large settlements with several government contracting firms in antitrust litigation in the U.S. District Court for the District of Connecticut. The nine named plaintiffs are current and former employees of Pratt & Whitney, which is now a division of RTX Corp. (formerly Raytheon Technologies Corporation). Pratt & Whitney manufactures jet engines for commercial and military aircraft. The other five defendants are suppliers of engineering services to Pratt & Whitney.

In their class action complaint, the plaintiffs alleged that the defendants conspired to restrict the recruitment and hiring of each other’s employees in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Such agreements are commonly referred to as no-poach agreements. Specifically, the plaintiffs alleged that there were three types of illegal no-poach agreements: (1) an agreement between Pratt & Whitney and the engineering services firm defendants not to recruit or hire each other’s employees, which Pratt & Whitney primarily enforced; (2) an agreement that Pratt & Whitney would not hire from the engineering services firms without their prior written approval; and (3) additional bilateral agreements between certain firms and Pratt & Whitney limiting Pratt & Whitney’s ability to recruit and hire employees from that firm. Plaintiffs argued that this conspiracy restrained competition in the labor market for aerospace workers and suppressed employees’ compensation.

In order to obtain dismissal of the case with prejudice and an exchange of releases, Pratt & Whitney has agreed to pay $34 million into a settlement fund for the benefit of the class. Similarly, the engineering services firm defendants have agreed to pay $26.5 million into a similar fund. A hearing has been set for May 7, 2025 to determine final approval of the settlement after any objections or opt-outs from class members.

October 3, 2024October 3, 2024 by Duane Morris

Environmental Initiatives Are Not Exempt from Antitrust Enforcement, FTC Says

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.

August 1, 2024August 1, 2024 by Duane Morris

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.

June 7, 2024 by Duane Morris

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.

April 24, 2024 by Duane Morris

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.

April 19, 2024April 19, 2024 by Duane Morris

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.

April 3, 2024 by Duane Morris

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.

March 21, 2024 by Christopher H. Casey

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.

March 7, 2024 by Duane Morris

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.

Read the full Alert on the Duane Morris website.