Antitrust Advocate

News, Developments and Practical Advice from Antitrust Leaders

Partner Carl Hittinger and Associate Jeanne-Michele Mariani authored an article published Oct. 26, 2018, by The Legal Intelligencer. The article, “Justice Kavanaugh’s Antitrust Testimony Before the Senate Judiciary Committee,” examines the testimony of U.S. Supreme Court Justice Brett Kavanaugh during his confirmation hearings last month, before his nomination was approved in the Senate. They write that when asked about his Court of Appeals dissents in antitrust cases, he provided little indication that he had wavered in…
BakerHostetler Partner Carl Hittinger and Associate Tyson Herrold authored an article published Aug. 24, 2018, by The Legal Intelligencer. The article, “Is Judge Kavanaugh a Fan of Antitrust Laws? Let’s Take a Look,” examines the limited antitrust jurisprudence record of U.S. Court of Appeals Judge Brett Kavanaugh, who has been nominated to replace Justice Anthony Kennedy on the U.S. Supreme Court. Hittinger and Herrold examine two Kavanaugh dissenting opinions in antitrust cases and note that…
We recently wrote that the Department of Justice’s and the Federal Trade Commission’s announcements condemning no-poaching agreements already have sparked civil class actions, including a putative class action against Jimmy John’s. Butler v. Jimmy John’s Franchise, LLP, No. 18-cv-0133, 2018 WL 3631577 (S.D. Ill. July 31, 2018). Since then, the district court denied a motion by Jimmy John’s to dismiss the plaintiff’s Section 1 claim. According to the allegations, the plaintiff in Jimmy John’s, Sylas…
Partners Carl Hittinger and Jeffry Duffy authored an article published by The Legal Intelligencer on July 27, 2018. The article, “Actavis and Reverse-Payments Suits in the Third Circuit After Five Years,” examines how purportedly anticompetitive patent-litigation settlement agreements between rival branded and generic pharmaceutical manufacturers—so-called “reverse payment” or “pay for delay” settlements—have generated numerous private lawsuits and remain one of the Federal Trade Commission’s top enforcement priorities. In the five years since Actavis, federal courts in the…
In a 5-4 decision in Ohio v. American Express, the Supreme Court affirmed that the anti-steering provisions of American Express’s merchant agreement do not violate Section 1 of the Sherman Act. Credit card companies’ core business involves two transactions. First, the credit card company provides credit services to its cardholders, as well as additional benefits such as frequent flier miles, cash back, etc. Second, in exchange for a per-transaction fee, the credit card company assumes…
Partner Carl Hittinger and Associate Tyson Herrold authored an article published June 22, 2018, by The Legal Intelligencer. The article, “How Smart is the Proposed Merger Review SMARTER Act?,” discusses a long-awaited bill before Congress that would significantly streamline the standards for the Federal Trade Commission’s (FTC) merger review process and finally align the different standards of the FTC and the Department of Justice for obtaining preliminary injunctions in merger reviews, which will have a…
Partners Robert Abrams, Gregory Commins, and Danyll Foix authored an article published in the Global Competition Review’s “The Antitrust Review of the Americas 2018.” Their article reviews how the “plausibility” pleading standard announced by the Supreme Court in recent years has changed not only how claims are alleged, but also how this standard may be useful in motions to dismiss, strike, and amend antitrust and class action claims. In these motions, three decisive…
Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on May 5, 2018. The article, “Class Actions Now Flowing from FTC and DOJ’s No-Poach Enforcement,” discusses the increase of class action lawsuits brought under Section 1 of the Sherman Act against national franchises for imposing employee no-hire agreements on their franchisees. Read the article.…
Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on March 30, 2018. The article, “DOJ Now Targeting HR Professionals for Criminal Antitrust Violations,” examines the Department of Justice’s (DOJ) ongoing enforcement of certain no-poach employee and wage-fixing cases. Specifically, the article lists DOJ complaints successfully filed against employers and analyzes the difference between naked restraints and ancillary restraints. Hittinger and Herrold report that Makan Delrahim, assistant attorney general for the…
The Department of Justice (DOJ) recently took the uncommon step of submitting an amicus brief to weigh in on a motion to dismiss. TIKD Services, LLC v. The Florida Bar, No. 1:17-cv-24103 (S.D. Fla. filed Nov. 8, 2017), Dkt. 115. Specifically, the DOJ intervened to clarify whether the analysis set forth in the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), about which we wrote…