Antitrust

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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 Judge Jacqueline Scott Corley found “the record evidence points to more consumer access,” rather than showing signs of reduced competition. Federal Trade Commission v. Microsoft Corporation, et al. 

On June 15, 2023, the Federal Trade Commission’s Bureau of Competition issued a statement on the relationship between voluntary interviews with the agency and contractual provisions that require or limit the disclosure of information. The Bureau explains that voluntary interviews are a key aspect of investigations because they “are essential to help [them] understand real-world dynamics and effects,” and “reduce unnecessary burdens on marketplace stakeholders and Bureau staff.” In the statement, the Bureau asserts that certain contractual restrictions impede investigations, and should be considered void.

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.

 As this year’s roundtable of enforcers demonstrated, big business is probably antitrust enforcers’ greatest fear. Spring in Washington means Cherry blossoms and antitrust. And last week, 3,700 antitrust lawyers and government officials from around the globe descended on Washington to visit the Cherry blossoms and discuss how they need more government intervention to make the economy work for everybody and need to bring ever more “plausible” cases in order to nudge and push the courts along.

New York Attorney General Letitia James announced new price gouging rules intended to clarify New York’s price gouging law, N.Y. Gen. Bus. Law §396-r, earlier this month.  The proposed rules seek to address many of the perceived limitations of the statute exposed during the COVID-19 pandemic and subsequent economic turbulence triggered by supply chain bottlenecks and record inflation.  Public comments on the proposed rules are due May 1, 2023.

The Supreme Court heard oral argument last week in cases that will have extensive implications for online platforms, and, more broadly, for internet speech across the board. Gonzalez v. Google, in particular, may result in a first-of-its-kind clarification of the scope of 47 U.S.C. § 230. 

The Federal Trade Commission has announced revisions to HSR Act and Clayton Act Section 8 thresholds, which are indexed annually in alignment with prior year economic activity. As is our annual practice, the alert below identifies the adjustments that are likely to be the most relevant to our clients, and…

Antitrust claims in a class action case filed against Amazon in U.S. Federal District Court will largely proceed, after the Court allowed most of the consumers’ pricing claims to survive a motion for summary judgment.  The Court dismissed a Sherman Act claim, but allowed most other claims to proceed.  Of particular note, Amazon’s “most favored nation” (MFN) policy will continue to be under scrutiny, despite the fact that courts typically do not find MFNs to be anticompetitive.  It is widely recognized that MFNs, in fact, often serve procompetitive purposes.