On January 11, 2023, Elizabeth Wilkins, the FTC’s Director of the Office of Policy Planning, spoke to the Capitol Forum about the FTC’s proposed rule to ban non-compete agreements. This conversation was the most significant discussion of the proposed rule by the FTC since it was announced on January 5. Below are the four most salient takeaways.
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 Seventh Circuit Asks, “What’s Wrong With Having Lots of Patents?”
The answer? Not much, in itself. If one patent is good, 132 is probably fine too. That was Judge Easterbrook’s reasoning in a recent decision addressing indirect purchasers’ antitrust challenge to AbbVie’s so-called “patent thicket” of 132 patents around the blockbuster drug Humira, arguing the sheer number of patents blocked
Supreme Court to Re-Examine Fair Use: Warhol Foundation v. Goldsmith
On March 28th, the Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, a case involving the core issues around copyright fair use. The case involves a series of Warhol drawings and silkscreen prints adapted from an original photograph of Prince taken by Lynn Goldsmith. Likely to interplay with the recent fair use decision in Google v. Oracle, the Supreme Court’s decision in this case has the potential to reshape the contours of fair use and the fate of the transformative use test. The outcome of the decision will have a widespread impact on how artists, particularly appropriation artists and creators of “fan art,” draw from other works.
It’s Not a Threat, It’s a Promise: Timeline of the DOJ’s Statements and Actions Against Wage Fixing and No Poach Agreements
Over the past year, the Department of Justice (“DOJ”) has increasingly been hot on the heels of suspected anti-competitive labor violations. To date, the DOJ has brought a few actions against employers across industries relating to wage-fixing and no-poach agreements. As these cases take hold, and potentially even head toward trial, this article examines the DOJ’s previous statements and current actions regarding its stance on anti-competitive labor violations.
The Administrative State Under Attack: Potentially Far Reaching Implications of Supreme Court’s Decision to Hear Challenge to FTC Administrative Review Process
In 1984, the Supreme Court ruled unanimously that courts must defer to an administrative agency’s reasonable interpretation of an ambiguous statute. But last year, the Supreme Court stripped the FTC of its ability to seek equitable monetary remedies such as disgorgement or restitution. And a couple weeks ago, the Supreme Court dismantled the Occupational Safety and Health Administration’s (“OSHA”) vaccine mandate, with Justice Gorsuch writing that the decision prevents OSHA from becoming a “roving commission to inquire into evils and upon discovery correct them.” The Supreme Court may be positioning itself to say something similar about the FTC.
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
Federal Judge Finds Copyright Issues “Embedded” in Social Media Re-Posts
Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively rejected the Ninth Circuit’s “server rule,” under which the Ninth Circuit held that re-posting of online content does not constitute a separate act of infringement where the infringing copy is stored only on third party servers. Instead, Judge Rakoff held that by re-posting the copyrighted content online, defendants had implicated plaintiffs’ exclusive display right – regardless of whether they created and stored a copy on their own servers. The opinion states that to hold otherwise would be to “make[] the display right merely a subset of the reproduction right.” Nicklen v. Sinclair Broadcast Group, Inc., et al.