In February 2020, at the 13th International Cartel Workshop, Deputy Assistant Attorney General (DAAG) Powers provided some insight as to the DOJ’s current views about the Antitrust Division’s Leniency Program. The headline: no major changes; but there are a few interesting takeaways, which we offer below.
DOJ Announces First Settlement Under Trump Administration Regarding “No-Poach” Agreement
Can Purchasing Efficiencies Save Mega-Mergers? The D.C. Circuit Says “No”
The D.C. Circuit recently blocked a proposed merger between two of the nation’s three largest health care insurers – Anthem and Cigna, raising doubts about the viability of the efficiencies defense in merger cases despite such a defense having been explicitly recognized in the 2010 FTC and DOJ Horizontal Merger
Arizona Sheriff’s Criminal Contempt Charge Reinforces Importance of Compliance with Civil Orders
President Andrew Jackson is reported (likely inaccurately) to have flaunted a Supreme Court decision by retorting, “John Marshall has made his decision; now let him enforce it!” Any litigant who has been on the receiving end of an unwanted court order may find this sentiment a familiar one. As a federal judge in Arizona recently reminded Maricopa County Sheriff Joe Arpaio, however, refusal to comply with a court order in a civil lawsuit can be criminal. Neither Presidents nor Sheriffs are above the law when it comes to complying with a civil order, and other civil litigants would do well to remember the consequences of such disobedience.
Antitrust Agencies Propose Updates to IP Licensing Guidelines and Invite Comments
On August 12, 2016, the Federal Trade Commission and the Department of Justice proposed changes to the Antitrust Guidelines for the Licensing of Intellectual Property, also known as the IP Licensing Guidelines. Since they were first issued in 1995, the agencies, courts, and businesses have relied on these Guidelines when
Court Finds Spanish-Language Movies May Be A Proper Antitrust Product Submarket
Can Spanish-language media content constitute a proper antitrust product submarket for purposes of a Sherman Act claim? A federal district court in Houston appears to be the first to address the issue and has signaled that, at least at the motion to dismiss stage, the answer may be sí, se puede. With 13.1% of U.S. residents speaking Spanish at home as of 2014, media companies with merger plans or business arrangements relating to Spanish-speaking consumers should pay close attention.
To Save Secrecy Lawsuit, Twitter Must Challenge DOJ’s Decision to Classify Surveillance Requests
This month, a federal judge dismissed Twitter’s lawsuit challenging limits on the disclosure of government requests for information on Twitter users, pressing the company to file an amended complaint contesting the government’s decision to classify such requests.
The case, Twitter, Inc. v. Lynch, began in 2014 after the U.S. Department of Justice (DOJ) prohibited Twitter from releasing a report that listed the aggregate number of surveillance requests the company had received pursuant to the Foreign Intelligence Surveillance Act (FISA). The surveillance requests sought information about Twitter users in connection with national security investigations. The FISA restricts public disclosure of certain details about surveillance requests. Interpreting these non-disclosure provisions, the DOJ determined that the aggregate number of surveillance requests received by Twitter constitutes classified information that may not be released publicly.
Need to Decrypt an iPhone? There’s an “Act” for That
A pair of recent cases pitted the U.S. Department of Justice (DOJ) against Apple, Inc. (Apple) in a Herculean struggle between asserted interests in national security and privacy. In both cases, the DOJ relied on the same statute – the All Writs Act of 1789 – which operates to fill the gaps of “federal judicial power when these gaps threaten[] to thwart the otherwise proper exercise of federal courts’ jurisdiction.” Michael v. I.N.S..
One case involved a request by the DOJ to decrypt the iPhone of Syed Farook, the gunman in the San Bernardino terrorist attack. A few weeks ago, a federal magistrate judge in the Central District of California ordered Apple to assist the FBI in bypassing the phone’s security functions so that investigators could analyze the phone’s contents. Apple vigorously fought the ruling, both in federal court and in the court of public opinion, warning of the breach of privacy posed by the government’s demands and that, essentially, no iPhone would be safe. Although the DOJ later withdrew its request after the FBI was able to unlock the iPhone using undisclosed “alternative” methods, the battle sparked a robust national debate.