Competition Corner
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April 23, 2024
|9 min read
FTC Adopts Final Ban on Worker Non-Competes
On April 23, 2024, the U.S. Federal Trade Commission promulgated a final rule banning non-compete clauses in contracts with employees and other workers (the Rule).
August 31, 2023
|6 min read
On July 31, 2023, China’s antitrust law enforcement agency, the State Administration for Market Regulation (SAMR), summoned four hog-farming companies for a regulatory meeting, with concerns over a no-poach agreement among them.
January 20, 2023
|3 min read
Federal Court Closes the Book on Publishers’ Attempted Merger
Last year, we previewed the Department of Justice’s antitrust lawsuit seeking to block Penguin Random House’s purchase of its competitor, Simon & Schuster, as a prominent example of the DOJ’s recent increased focus on monopsony theories of competitive harm. After a year of litigation, the case reached resolution in November, when U.S. District Court for the District of Columbia (now D.C. Circuit) Judge Florence Pan issued a decision enjoining the merger, determining it would lessen competition in the market to acquire publishing rights and therefore violated Section 7 of the Clayton Act.
January 6, 2023
|8 min read
FTC Proposes Rule Prohibiting Most Non-Compete Clauses for “Workers”
On January 5, the Federal Trade Commission released a Notice of Proposed Rulemaking (NPRM) to prohibit employers from imposing most non-compete clauses on workers. The proposed rule is the current FTC’s most significant attempt yet at utilizing antitrust enforcement and administrative rulemaking to increase competition in labor markets. If finalized and upheld against likely court challenges, the rule would significantly impact businesses throughout the country.
September 6, 2022
Is it Strike 3 for MLB’s Antitrust Exemption? The Latest Sports Antitrust Cases at Bat
Winston & Strawn’s Women in Antitrust limited podcast series continues with a new episode focusing on the world of sports. Partner and host Diana Leiden pitches some curve balls to two other talented partners who have been involved in groundbreaking sports antitrust decisions—Law360 Sports & Betting Rising Star Jeanifer Parsigian and Crain’s New York Business’s Notable Woman in Sports Angela Smedley—on the MLB’s antitrust exemption, the impact of Alston v. NCAA, and potential legislation challenging the status quo.
July 28, 2022
|3 min read
Lessons From the International Cartel Workshop
The ABA and IBA hosted the 2022 International Cartel Workshop in Lisbon, Portugal, over three days in late June. The biennial workshop is considered the premier international cartel conference, and was attended by senior members of the private bar and government enforcers from around the world, including several members of Winston’s Antitrust/Competition Group.
July 27, 2022
|2 min read
Another Step Towards Increased Antitrust Enforcement in Labor Markets
In the latest interagency collaboration, the FTC and National Labor Relations Board (NLRB) entered into a memorandum of understanding last week aimed at rooting out practices that harm workers in the gig economy and other labor markets, enhancing enforcement administered by the agencies and promoting interagency collaboration and outreach to protect workers against unfair methods of competition and labor practices.
June 17, 2022
|1 min read
FTC Reaffirms Importance of Narrowly Tailoring Non-Competes in M&A Transactions
On June 14, 2022, the Federal Trade Commission (“FTC”) announced that it had required ARKO Corp. and its subsidiary GPM to roll back certain provisions of their acquisition of 60 Express Stop retail fuel outlets from Corrigan Oil Company, including limiting a broad non-compete provision.
December 16, 2021
|6 min read
FTC and DOJ Workshop Highlights Antitrust Considerations in Labor Markets
The Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) hosted a two-day virtual workshop on December 6 and 7 titled “Making Competition Work: Promoting Competition in Labor Markets.” The agencies had previously been tasked by President Biden’s “Executive Order on Promoting Competition in the American Economy” (the “Executive Order”) with addressing economic competition in labor markets. Among other priorities, the Executive Order called on the agencies to collaborate in assessing ways to promote worker mobility and address imbalances in labor markets as well as to update previous guidance in the area.
December 10, 2021
|4 min read
DOJ’s First Criminal Indictment for Wage-fixing Survives Dismissal Attempt
The Eastern District of Texas denied Neeraj Jindal’s and John Rodgers’ motions to dismiss the Department of Justice’s (“DOJ”) first-ever criminal indictment for wage-fixing. The court found that wage-fixing agreements were a type of price-fixing and, as such, rejected defendants’ arguments that there was a lack of precedent to criminally prosecute the alleged conduct as per se illegal.
December 6, 2021
|9 min read
Antitrust 101: The Book Publishers Lawsuit and Monopsony Power
On November 2, the U.S. Department of Justice (DOJ) filed a civil antitrust lawsuit in the U.S. District Court for the District of Columbia, seeking to halt the world’s largest book publisher, Penguin Random House, from acquiring its competitor, Simon & Schuster. The case represents the most recent and high-profile example of the DOJ’s focus on monopsony theories of competitive harm.
September 10, 2021
|4 min read
On August 19, 2021, a Ninth Circuit panel confirmed that a full rule-of-reason analysis—as opposed to the more truncated per se treatment—applies to non-solicitation provisions in otherwise procompetitive collaborative agreements.
August 9, 2021
|7 min read
Class Action Claims Rejected for Plaintiffs in Two Franchise No-Poach Cases
In the fast-developing area of no-poach antitrust law, two courts have recently denied class certification bids for former Jimmy John’s and McDonald’s employees in their respective no-poach suits alleging that the chains’ franchise locations were prohibited from recruiting one another’s workers.
July 26, 2021
Episode 11: Executive Order Promoting Competition in the American Economy
What impacts will the sweeping Executive Order on Promoting Competition have on companies? In this episode of Winston & Strawn’s Competition Corner Podcast, Attorneys Molly Donovan, David Dahlquist, Susannah Torpey, and Kevin Goldstein discuss the Order’s directives and recommendations targeting labor markets, the tech sector, and the healthcare and life sciences industries.
July 16, 2021
|6 min read
Competition EO: Spotlight on Anticompetitive Concerns in Labor Markets
On July 9, 2021, President Biden issued the “Executive Order on Promoting Competition in the American Economy,” aimed at promoting economic competition and the interests of workers through the enforcement of antitrust laws, and the White House issued a corresponding “Fact Sheet” providing additional details behind the Order.
July 9, 2021
|3 min read
Competition EO: Biden Signs Sweeping Executive Order Aimed at Promoting Competition
On July 9, 2021, President Biden signed a comprehensive Executive Order aimed at promoting economic competition across the U.S. economy including through enhanced enforcement of antitrust laws.
April 14, 2021
|5 min read
In a stark rebuke of the U.S. Department of Justice’s (DOJ) ongoing effort to pursue its first-ever criminal prosecution of a company for entering into non-solicitation—or no-poach—agreements with competitors, the U.S. Chamber of Commerce (Chamber) recently filed an amicus brief assailing the constitutionality of the DOJ’s indictment on due-process grounds.
February 18, 2021
|4 min read
DOJ to Continue Focus on Prosecuting No-Poach and Wage-Fixing Agreements
The Acting Assistant Attorney General for the Antitrust Division, Richard Powers, sat for an interview with the American Bar Association (ABA) on February 12, 2021, to discuss the Department of Justice’s (DOJ) priorities under the new administration.
December 14, 2020
|3 min read
DOJ Gets Its First Criminal Indictment for Wage Fixing
The Department of Justice (DOJ) recorded its first criminal indictment for wage fixing on December 9, 2020. The two-count indictment was filed in the Eastern District of Texas against Neeraj Jindal for his alleged participation in a conspiracy to fix the wages of physical therapists and physical-therapy assistants providing at-home care in mid to late 2017.
December 1, 2020
|11 min read
What a Biden Administration Might Mean for Antitrust Law and Enforcement
While much of the impact of the new administration is still up in the air pending President-Elect Biden’s appointments of key personnel and the results of the Senate run-offs in Georgia, we are likely to see changes to the focus of the Department of Justice and Federal Trade Commission, and increased antitrust enforcement in several key industries, including tech, health care, and agriculture, over the next several years.