anticompetitive Archives

Jun 29, 2020

Congress Reauthorizes the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)

Sections 212-214 of the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)[1] might live to see another day. On June 25, 2020, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, repealing the Act’s sunset provision.[2] ACPERA, enacted in 2004, aimed to encourage antitrust violators to cooperate with government prosecutors and private litigants in antitrust cases. The carrot: if an amnesty applicant into the Department of Justice’s Antitrust Division’s leniency program provided “satisfactory cooperation” to plaintiffs, the applicant’s Sherman Act (or similar state law) civil damages could be reduced to actual, instead of treble,… Read more

Jun 5, 2020

The Failing Firm Defense and Miraculous Recoveries: The Federal Trade Commission’s Warning to Merging Parties and Counsel during COVID-19

The Federal Trade Commission has issued a number of statements regarding its intention to enforce United States antitrust laws during COVID-19. The head of the FTC’s Bureau of Competition, Ian Conner, echoed this commitment in his blog post on May 27, 2020. In the post, Conner stated that the FTC will continue to closely scrutinize failing firm claims by merging parties.[1] Consumers, he said, “deserve the protection of the antitrust laws now as much as ever.”[2] The failing firm defense usually involves the argument that the acquired and the acquiring firms are failing, “which presumably would justify the merger on… Read more

May 21, 2020

COVID-19 and Competition: Antitrust Law During the Global Pandemic

Overview COVID-19’s rapid spread has necessitated collaborations to equip communities with the proper tools to combat the disease. Many have risen to the occasion and worked tirelessly to help protect the health and safety of the United States. As the DOJ and FTC (the “Agencies”) put it in their March 24th Joint Antitrust Statement, however, “others may use [COVID-19] as an opportunity to subvert competition or prey on vulnerable Americans.”[1] The FTC, DOJ, and Trump Administration have taken measures to guide businesses on how to collaborate legally and have sent forceful reminders about the repercussions of violating antitrust laws during… Read more