Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Tag Archives: antitrust law

Tech Takeaways: SCOTUS Weighs in on Pivotal Tech Cases

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. … Continue Reading

FTC Announces 2023 Thresholds Under HSR Act and Clayton Act New Filing Fee Schedule Implemented

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 reiterates several important practice tips. … Continue Reading

Four Key Takeaways from the FTC Director’s Remarks on the Proposed Rule to Ban Non-Compete Agreements

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 … Continue Reading

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. … Continue Reading

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 … Continue Reading

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 … Continue Reading

Second Circuit Overturns FTC Antitrust Decision Against 1-800-Contacts Involving Trademark Settlement Agreements

Earlier this month, the Second Circuit overturned a decision by the Federal Trade Commission (the “FTC”) holding 1-800-Contacts violated antitrust law by entering into trademark settlement and related agreements that restricted bidding on auctions held by companies that operate search engines. 1-800 Contacts v. Federal Trade Commission. Although the Second Circuit recognized that trademark settlement … Continue Reading

Antitrust Enforcers Need Merger Presumptions to Reduce Market Power?

Under the Clayton Act (15 U.S.  Code § 18), certain business acquisitions are prohibited where “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” Long-standing jurisprudence has established that merger challenges require, at the outset, a prima facie showing of the likelihood of a substantial lessoning … Continue Reading

Antitrust Enforcers Preview Incoming Spotlight on Blockchain

The tide of regulation of cryptocurrency and blockchain could be turning in the United States. Following comments by newly-confirmed Treasury Secretary (and former Federal Reserve Chair) Janet Yellen describing Bitcoin as “inefficient” and “extremely volatile,” the price of the coin dropped 10% in 24 hours. During her confirmation hearings, Yellen described cryptocurrencies as a “particular … Continue Reading

Regulators Ready, Gladiators Ready – Digital Markets to Face Greater International Scrutiny

Across the globe, an increasing number of international regulators have opened inquiries or adopted new rules and regulations to address competition law concerns about digital platforms and digital markets.  Whilst the spotlight is likely to initially fall on the conduct and business practices of large online platforms – the so-called gatekeepers – we expect international … Continue Reading

The House Judiciary Committee Takes on Big Tech

“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in a series of hearings following the Subcommittee’s 16-month probe into Big Tech’s gatekeeping power. This one, titled Reviving Competition, … Continue Reading

What Constitutes a “Trade” or “Market” Area Under State Price Gouging Statutes?

Price gouging enforcement is at an all-time high, but many ambiguities about the application of these state laws remain. Among the many questions left unanswered: what does a statute mean when it says “trade area” or “market area”? Many laws refer to the price at which the same or similar good or service is available … Continue Reading

Can a Declaratory Judgment Protect My Company From a Price Gouging Lawsuit?

Much of the discussion to date regarding price gouging laws has rightly focused on the two core elements of a price gouging lawsuit: what constitutes a violation and what are the defenses? And while these defenses are valid, most would prefer to never have to spend the time and expense getting a case dismissed in … Continue Reading

What’s My Price? Price Gouging Enforcement, Bargaining Power and Stealth Price Increases

Businesses may be wondering whether there is increased risk of price gouging liability when they impose higher penalty terms, ask for higher up-front payments, raise rates, or otherwise seek terms that may be more burdensome. Sellers and service provides should consider the risk of being held liable for non-price terms that result in higher customer … Continue Reading

Private Plaintiff and Class Action Price Gouging Claims Spread as Emergency Continues

Private plaintiffs and state enforcers have been targeting businesses up and down the supply chain for price gouging violations. Some of these actions have been over the price of goods long associated with the COVID-19 pandemic, such as toilet paper and medical supplies. Yet others, such as a dispute in which a California winery has … Continue Reading

Price Gouging Laws and Overlapping States of Emergency

Most price gouging laws have been in effect throughout the country since early March due to the pandemic. As hurricane season gets underway, businesses should be aware that new states of emergency may be declared, overlapping with current pandemic states of emergency. New states of emergency may trigger price gouging laws that cover a variety … Continue Reading

Pandemic Price Gouging Laws Unintentionally Harming Businesses and Consumers

Most price gouging laws have been in effect for upwards of five months. These laws were not designed for the length and national scope of the current pandemic, which has led to them unintentionally harming businesses and the economy, and ultimately consumers along the way. In a recent Fortune article, Proskauer’s antitrust lawyers Chris Ondeck … Continue Reading

How to Calculate a Baseline Reference Price for Price Gouging Compliance

Price gouging statutes typically operate by setting a baseline over which any price increase is presumptively illegal, subject to various exemptions. But different states use different formulas for their baselines. Businesses who provide covered goods or services therefore need to determine the relevant baselines in order to calculate whether, and how much of, a price … Continue Reading

Price Gouging Laws Expected to Remain in Effect Through the End of the Year

In response to the public health crisis caused by COVID-19, states of emergencies were declared across the nation in order to implement emergency response plans and halt the spread of the virus. Generally, state governors have the power to declare states of emergency, by issuing executive orders which outline the duration of the declaration and … Continue Reading

Calculating Damages for Price Gouging Violations: Why Customer Refunds are Only Part of a Company’s Concerns

As the COVID-19 pandemic continues and the triggering states of emergencies are largely extended, companies are increasingly focused on compliance with state price gouging statutes. State attorneys generals have launched investigations and brought lawsuits, and several class actions have been filed by consumers against companies for alleged price gouging, up and down the supply chain. … Continue Reading

Does ‘New and Improved’ Products Mean I Can Charge a New and Improved Price?

State price gouging laws do not typically address product improvements or reformulations. Still, businesses should consider price gouging restrictions when releasing “new and improved” products, as the same pricing considerations that may apply to new products may also apply to improved, updated or reformulated products.… Continue Reading

Introducing a New Product or Service? Why Price Gouging Laws May Still Apply

While price gouging is often discussed in the context of existing products, new products and services may be covered as well. As a result, businesses looking to introduce new products during a price gouging emergency can seek guidance from the relevant price gouging laws before setting a price for their new good or service.… Continue Reading

Pricing Controls under the Defense Production Act

With the federal government’s increasing focus on enforcing price gouging compliance, attention has turned to the Defense Production Act (the “DPA”). Passed in 1950 in response to the Korean War, the DPA is modelled on the War Powers Acts of 1941 and 1942 and gives the President, among other things, sweeping power to control the … Continue Reading
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