In the latest of a string of losses for antitrust enforcers, the Northern District of California resoundingly denied the FTC’s bid to enjoin the Microsoft-Activision merger, allowing the deal to proceed a week in advance of its upcoming merger termination date. In a case that tested the bounds of antitrust law in vertical integration deals, Presiding
Antitrust and Section 230: Where Are We After Gonzalez v. Google’s Dodge?
In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.
The Potential Antitrust Impact Of High Court Section 230 Case
Section 230 of the Communications Decency Act was originally thought of as “force for securing decency on the Internet,” as the late Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit explained in a dissenting opinion in the 2019 Force v. Facebook Inc. case.
But its enactment under Title 47 of the U.S. Code, Section 230 also represented a commitment to the preservation of “the vibrant and competitive free market.”[2]
The free market ideal — explicitly codified in the statute — has taken prominence over the decent-internet ideal, and Section 230 has become the most powerful legal protection for online platforms that rely on content created or shared by others.
Four Key Takeaways from the FTC Director’s Remarks on the Proposed Rule to Ban Non-Compete Agreements
- The FTC recognizes this policy could potentially have far-reaching implications across industries and encompass “functional non-competes.” Wilkins explained that the proposed rule would apply to “all workers” who are “under the jurisdiction of the FTC,” whether an employee is paid, unpaid, or an independent contractor. Throughout the interview, Wilkins described how other types of
A New Dawn for the FTC: Eschewing Traditional Antitrust Laws to Challenge Non-Competes Using Section 5 Powers
The FTC set its sights on non-compete agreements as it debuts its powers under Section 5 of the FTC Act—demanding more of employers than is required under traditional antitrust laws.
Through Section 5 of the FTC Act, Congress affords the FTC the unique ability to identify and police against “unfair methods of competition,” beyond the contours of other antitrust statutes—namely, the Sherman and Clayton Acts. In the past, the FTC’s policy has been to employ Section 5 in a limited set of circumstances invoking “the promotion of consumer welfare.” In a statement made on November 10, 2022, the FTC shed its previous policy in favor of a more expansive and amorphous view of its statutory authority under Section 5. According to the FTC’s “non-exclusive set of examples of conduct,” unfair methods of competition include: (i) mergers and exclusive dealing arrangements that “have the tendency to ripen into violations of the antitrust laws;” (ii) “practices that facilitate tacit coordination;” and (iii) “parallel exclusionary conduct that may cause aggregate harm.” As a result of the FTC’s “know it when you see it” approach, practitioners and professionals were left in the dark as to how the FTC would choose to exercise its Section 5 authority.
Three Notable Antitrust & Tech Updates That May Have Flown Under Your Radar
Antitrust and tech is in the legal news almost daily, and often multiple times a day. Here are a few recent developments with notable implications that may have flown under the radar: 1) renewed focus on gig economy issues; 2) potential enforcement efforts regarding director overlaps; and 3) challenges to MFN pricing.
The Privacy and Antitrust Paradox in the Age of Data
It used to be privacy was largely the domain of constitutional law and patient health care law: the Fourth Amendment, and then the Fourteenth Amendment, and the Health Insurance Portability and Accountability Act (HIPAA). Today, privacy is the practice of navigating the state-by-state patchwork of data security laws and regulations, subject matter specific privacy laws
Law360 Expert Analysis: How To Navigate The Coming Antitrust Policy Tests
The FTC has announced penalties in two separate enforcement actions totaling almost $2 million for alleged violations of the HSR Act. The matters: U.S. v. Clarence L. Werner c/o Werner Enterprises, Inc.; and U.S. v. Biglari Holdings Inc. include claims of failures to file notification under the HSR Act and failures to observe the required
How to Navigate the Coming Antitrust Policy Tests
2021 will be remembered in antitrust law. Not since the 1970s has there been so much chatter over the fundamental purposes of antitrust policy, or such potential for actual sea change.
Half a century ago, Robert Bork and the Chicago School argued that antitrust law had lost its way and should focus on consumer welfare. Bork’s view was that antitrust enforcement was getting in the way of legitimate competition, and the U.S. Supreme Court was quick to embrace the consumer welfare standard.
Preparing for the New FTC Warning-Letter Process in M&A
With a rash of changes since Chair Lina Khan took command, the Federal Trade Commission is proving the maxim that the only certainty is uncertainty.
Its new policy of issuing warning letters to deals that have successfully navigated the Hart-Scott-Rodino premerger review process — announced in an FTC “Competition Matters” blog post Aug. 3 — is injecting new and unnecessary uncertainty on parties just trying to get the deal done.
A look behind and into the FTC’s new practice and its early and likely impacts on mergers and acquisitions reveals some potentially unintended consequences.