Antitrust and Unfair Competition Law

Antitrust and Unfair Competition Law: E-briefs, News and Notes, July 2021

Welcome to the July E-briefs, News and Notes. We hope you find this edition useful. I want to thank Jeanifer Parsigian and Dana Cook-Milligan, (Winston & Strawn) and Kerry C. Klein (Farmer Brownstein Jaeger Goldstein Klein & Siegel LLP) and Evan Jaeger (University of Washington 2022 J.D. Candidate) for contributing the E-briefs found below.  E-briefs is in need of additional volunteer authors.  If you would like to be on the email list of attorneys to whom I send out requests for help, please let me know. There is no obligation to take on any particular case, but if you get the email messages about e-briefs, you can jump in when time/interest allows.  Also, please get in touch if you have any comments or suggestions for new features.  Thanks. bob@reconnollylaw.com.

E-Briefs

Department of Justice Offers Warning About Potential Implications of Recent Dismissal of Antitrust Complaint | Jeanifer Parsigian and Dana Cook-Milligan

By: Jeanifer Parsigian and Dana Cook-Milligan, (Winston & Strawn)

In a recent amicus curiae brief to the Ninth Circuit, the Department of Justice argues that the district court’s dismissal of an antitrust complaint without leave to amend has serious implications for plaintiffs’ obligations to allege facts of antitrust harm and the scope of anticompetitive effects.  While taking no position on the specifics of the dispute, the DOJ urges the Ninth Circuit to reverse to avoid creating harmful precedent in the Circuit.

The DOJ’s brief comes in an appeal of the recent dismissal with prejudice by Judge John Holcomb of the Central District of California in The PLS.com, LLC v. The National Association of Realtors, et al.  The National Association of Realtors (“NAR”) is a real estate trade association that promulgates rules to govern operation for the approximately 600 regional multiple listing services (“MLS”) that are affiliated with NAR.  The majority of active, licensed real estate professionals are members of NAR.  The PLS.com (“PLS”) was created in 2017 and offers a competing service to NAR.  They aggregate nationwide what are known as pocket listings, which are real estate listings marketed outside the common MLS system for reasons of privacy or security.  PLS essentially functions as a national MLS for pocket listings, which have become more common in recent years. 

PLS offers network efficiencies from MLS but also privacy and discretion, which they claimed NAR saw as an actual or competitive threat to its market position.  PLS alleged that, in response to that threat, NAR implemented a new policy called the Clear Cooperation Policy, which governs NAR-affiliated MLSs and imposes an “all or nothing” policy on real estate policies.  With this new policy, professionals are required either to submit listings through an NAR-affiliated MLS, with only a few exceptions, or risk losing access to the MLSs.  PLS alleged that this policy violated Section 1 of the Sherman Act and California’s Cartwright Act. 

NAR moved to dismiss, and the district court granted the motion to dismiss with prejudice, holding that (1) the “allegations do not show a plausible injury to the ultimate consumers—the home buyers and sellers;” (2) under the Supreme Court’s Ohio v. American Express Co. decision, 138 S.Ct. 2274 (2018), “a plaintiff must allege (and later prove) injury to participants on both sides of the market” – again both the home buyers and sellers; and (3) at least a decrease in output or increase in prices should be alleged. 

PLS appealed the dismissal to the Ninth Circuit, and the Department of Justice filed an amicus curiae brief offering its own warnings about the implications of Judge Holcomb’s decision.  Brief for the United States of America as Amicus Curiae in Support of Neither Party, The PLS.com, LLC v. The National Association of Realtors, et al., No. 21-55164 (9th Cir. June 2, 2021).  The DOJ took no position on the specifics of the dispute between PLS and NAR but argued that the district court misapplied relevant antitrust principles to all three of its legal findings in the dismissal order.

First, the district court was mistaken in requiring immediate injury to home buyers and sellers because the Sherman Act is “comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices.”  Downstream harm can be presumed based on “injury to competition at another level.”  And in this case, the DOJ argued that the direct consumers are brokers and agents rather than buyers and sellers, with end consumers harmed derivatively.

Second, the DOJ argued that the district court “over-read” AmEx, which does not require a two-sided market definition as a matter of law because the listing networks do not involve a simultaneous transaction.  The Supreme Court in AmEx, the DOJ argued, distinguished between transaction platforms, which offer a single product—the simultaneous transaction between participants, in which, “simultaneity is a ‘key feature’” because the sale to one side cannot be made without the simultaneous sale to the other side, e.g., a credit card sale—from nontransaction platforms.  Unlike a credit card transaction, the MLS and PLS do not perform simultaneous sales to buyers and sellers of real estate.  They operate like a dating service or classified newspaper ad that introduces two parties to each other, without the “simultaneous one-to-one transaction that was present in Amex.”  The DOJ therefore differentiates “nontransaction platforms” like MLS and PLS that merely facilitate transactions from “transaction platforms,” and argues that defining single-sided markets in nontransaction platforms can be appropriate.

Further, even if MLS and PLS were two-sided markets, the DOJ argued that alleging separate harm to both sides would not be required.  In AmEx, the Supreme Court “relied on a net-harm allegation as showing ‘anticompetitive effects in the market as a whole.’”  The DOJ argued that sometimes, competition can be harmed in a two-sided market even if there is not a separate harm to both sides.  This is consistent with the DOJ’s position in AmEx, in which they argued that AmEx’s anti-steering rules unreasonably restrained trade by stifling price competition, raising merchant fees, inflating retail prices, blocking low fee rivals, and suppressing innovation.  See generally Brief for the United States as Respondent Supporting Petitioners, Ohio v. American Express Co., No. 16-1454 (Dec. 7, 2017).  The DOJ further argued in AmEx that the plaintiffs were not required to overcome the potential benefits for cardholders as long as the alleged restraint was prima facie anticompetitive – harm to both sides of the two-sided platform did not need to be pleaded to establish harm to competition. 

Third, while the type of “antitrust injury” remains limited to only losses flowing from an anticompetitive behavior, based on Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977), the DOJ argued that this antitrust injury is more inclusive than only increased prices or reduced output.  Plaintiffs should be able to allege a variety of injuries flowing from anticompetitive behavior such as a decreased quality in the market, reduced consumer choice, hampered innovation, and the reduction of consumer preference in setting either price or output.  The DOJ further argued that “the district court’s holdings that PLS failed to allege anticompetitive conduct inherently contradict its determination later in the opinion that PLS plausibly alleged a prima facie unreasonable restraint of trade.”  The DOJ argued that the contradiction in the district court’s decision “flows from the district court’s misapplication of relevant antitrust principles.”

The DOJ then concluded that the Ninth Circuit “should hold that PLS did not need to allege immediate injury to end-users; a reduction in output or increase in prices; a two-sided market; or separate harm on both sides of that market.”  Failure to reverse the district court’s dismissal order will create new precedent in the Ninth Circuit that will place a more significant burden on antitrust plaintiffs—including, presumably enforcement agencies like the DOJ Antitrust Division.  Further, the DOJ’s amicus argues that antitrust enforcement should be permitted in industries where there is an alleged harm to intermediaries, not just end users, which would be consistent with decisions out of other circuits.  See, e.g. Volvo North America Corp. v. Men’s International Professional Tennis Council, 857 F.2d 55 (2d Cir. 1988) (holding that an owner-producer of professional tennis tournaments can allege antitrust injury even if the restraint was imposed on the tennis player intermediary rather than downstream consumers of the tournaments); Potters Medical Ctr. v. City Hospital Ass’n, 800 F.2d 568, 575-77 (6th Cir. 1986) (holding that a small hospital can sue a monopolist hospital for restricting its doctors’ staff privileges without needing to claim immediate harm to the end-user patient). 

While the DOJ’s position remains consistent between AmEx and this case, the Ninth Circuit’s decision could speak volumes about the scope of the Amex decision’s import for potential antitrust plaintiffs, including the DOJ’s enforcement efforts going forward.  And a decision affirming the dismissal could reinforce the consumer welfare standard as the touchstone of antitrust harm. 

Second Circuit Decides Trademark Settlements Deserve More Than a Quick Look in 1-800 Contacts, Inc. V. FTC | Kerry C. Klein and Evan Jaeger

By:
Kerry C. Klein, Farmer Brownstein Jaeger Goldstein Klein & Siegel LLP
Evan Jaeger, University of Washington 2022 J.D. Candidate

The United States Court of Appeals for the Second Circuit vacated and remanded a Final Order of the Federal Trade Commission (FTC or Commission) finding that agreements among competitors to refrain from bidding on keyword search terms  for internet advertisements violate Section 5 of the FTC Act, 15 U.S.C. § 45.  1-800 Contacts, Inc. v. FTC, No. 18-3848, 2021 U.S. App. LEXIS 17508 (2d Cir. June 11, 2021). Holding that an “inherently suspect” framework was improperly applied by the FTC, the decision is noteworthy for its analysis of when an abbreviated analysis should apply to restraints on competition.

FACTUAL BACKGROUND

Contact lens retailers, like many businesses, advertise online using “search advertising.” Search engines produce sponsored and organic results to users’ searches depending on the keywords used in the search. The sponsored results are paid advertisements. Advertisers bid on keywords at auction for the opportunity to attribute that keyword to their ad. Competitors can bid on each other’s brand names to get their ad to appear when a potential customer searches for their competitor’s name. Brand names are often trademarked. 1-800 Contacts, Inc. (“1-800”) is an internet-based contact lens retailer. Via bidding on “negative keywords,” an advertiser may also prevent its ad from being displayed when a consumer searches for a particular keyword. Id. at *5.

Internet-based contact lens retailers accounted for 17 percent of the contact lens market in 2015, and 1-800 accounts for the majority of online sales of contact lenses. Id. Between 2004 and 2013, 1-800 entered into fourteen agreements with competitors in which they agreed to reciprocal online search advertising restrictions so that a search for one company’s trademark would not result in a competitor’s ads being shown as a result. Id. at 8-9. The agreements prohibit bidding on others’ trademarks, but do not prohibit bidding on generic keywords. Id. at 8. The agreements also require the parties to employ negative keywords so that a search including one party’s trademarks will not trigger a display of the other party’s ads. Thirteen of the agreements were trademark settlement agreements. Id. 1-800 enforced the agreements when it perceived them to be breached.

ADMINISTRATIVE PROCEEDINGS

In 2016, the FTC brought an administrative complaint against 1-800 alleging the agreements and subsequent enforcement violated Section 5 of the FTC Act. Id. at *9. The complaint alleged the agreements prevented competitors from bidding on trademark keywords to place ads that would have informed consumers that the same contact lenses were available for cheaper elsewhere, thereby reducing competition and making it more difficult for consumers to compare online retail prices. Id. at *9-10. 1-800 argued that trademark settlement agreements are immune from antitrust scrutiny under FTC v. Actavis, 570 U.S. 136 (2013), and that there were procompetitive justifications for the agreements. Id. at *10.

An Administrative Law Judge (ALJ) ruled that a violation had occurred. Id. The ALJ rejected 1-800’s argument that Actavis granted settlement agreements immunity from antitrust scrutiny. Id. at *10. Applying a “rule of reason” analysis and elements of the Sherman Act, the ALJ found actual anticompetitive effects from the agreements and rejected 1-800’s procompetitive justifications. Id. The ALJ found that, while trademark protection is procompetitive, it did not justify the advertising restrictions and that 1-800 failed to show how reduced litigation costs would benefit consumers. Id. The ALJ issued an order barring 1-800 from entering into further agreements with marketers or sellers of contact lenses to limit search advertising auction participation. Id. at *10-11.

1-800 appealed to the FTC. Id. at 11. The Commission upheld the ALJ’s decision. Id. However, the majority analyzed the settlement agreements differently from the ALJ. Instead of engaging in a full rule of reason analysis, the FTC classified the agreements as “inherently suspect” and found “direct evidence” of anticompetitive effects on consumers. Id. The Commission rejected 1-800’s procompetitive justifications and identified less anticompetitive alternatives to the advertising agreements. Id. One Commissioner dissented, reasoning that the Commission incorrectly applied the inherently suspect framework and failed to appropriately consider 1-800’s procompetitive justifications. Id.

THE SECOND CIRCUIT OPINION

Appeal in the Second Circuit followed, with 1-800 again arguing that: (1) trademark settlements are immune from antitrust review per Actavis; (2) the Commission incorrectly applied the inherentlysuspect framework and the agreements should be considered under a rule of reason analysis; and (3) under a rule of reason analysis the agreements do not constitute a violation of the Sherman Act, and therefore the FTC Act, due to procompetitive justifications. Id. at *12, 20, & 25.

TRADEMARK SETTLEMENTS AND ACTAVIS

The Second Circuit rejected the argument that trademark settlements are immune from antitrust scrutiny as a general rule. Id. at *13. In Actavis, the Supreme Court analyzed what are known as “reverse payment” patent settlements. While Actavis purports that an IP owner may preclude competitors from bidding on its valid trademark term, this does not insulate agreements regarding intellectual property rights from antitrust scrutiny. Id. at *14-15. The agreement’s legality is still determined by measuring its anticompetitive effects against procompetitive justifications. Id. at *14.

RULE OF REASON ANALYSIS & INHERENTLY SUSPECT FRAMEWORK

The Second Circuit held it was proper for the Commission to apply Sherman Act jurisprudence in their analysis of the alleged violation of Section 5 of the FTC Act because the FTC Act’s prohibition of unfair competition and deceptive practices overlaps the scope of the Sherman Act. Id at *15. “To prove a Sherman Act violation – and by extension, a Section 5 violation – the FTC must establish (1) a contract, combination, or conspiracy exists that (2) unreasonably restrains trade.” Id. at *16.

Under the familiar rule of reason analysis, an antitrust plaintiff must demonstrate that a contract or combination is in fact unreasonable and anticompetitive. Id. If a plaintiff establishes anticompetitive conduct, the defendant must offer procompetitive justifications for the agreement. Id. If the defendant can identify procompetitive justifications, then the plaintiff must show that less restrictive alternatives existed for achieving the same competitive benefits. Id. at *31. Courts apply an abbreviated rule of reason analysis, sometimes known as the “quick look” approach, in situations where someone with a rudimentary understanding of economics could conclude the arrangements have an anticompetitive effect on customers. Id. at *18-19.The Commission called this approach the “inherently suspect framework”. Id. at *18. Under the inherently suspect framework, neither direct evidence of harm nor proof of market power is needed to show anticompetitive effects. Id.

The Second Circuit rejected the inherently suspect framework because the agreements could plausibly have a net procompetitive effect, thus requiring a more thorough rule of reason analysis. Id. at *21. The court also determined that courts do not have sufficient experience with this type of conduct to permit the abbreviated analysis undertaken by the Commission. Id. The Second Circuit concluded that when not only are there cognizable procompetitive justifications, but also the type of restraint has not been widely condemned in the courts’ judicial experience, more than a quick look is required.

Applying the rule of reason, the Second Circuit first examined the anticompetitive effects of the agreements. Anticompetitive effects may be shown through direct evidence of output reductions, increased prices, or reduced quality. Id. at *25. The Second Circuit rejected the Commission’s argument that there is direct evidence of increased prices caused by the agreements because the government only presented theoretical evidence unsupported by actual analysis of the agreements’ effect on the price of contact lenses in the relevant market. Id. at *25-26. The government also argued the agreements disrupted information flow as another anticompetitive effect. Id. at *27. The court did not rule on the viability of this theory of harm because of the existence of procompetitive justifications. Id.

After thoroughly analyzing the anticompetitive effects, the court moved on to consider the procompetitive justifications, finding that the protection of petitioner’s trademark interests constitutes a valid procompetitive justification. According to Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50 (2d Cir. 1997),protective trademark agreements are generally favored under the law because they reduce consumer confusion and avoid trademark litigation. Id. at * 28-29. However, not every trademark agreement has a procompetitive justification, particularly where the trademark protection provisions may be auxiliary to an overarching illegal agreement. Id. at *30. In this case, the court found that the agreements were not part of any underlying illegal agreement and were legitimate procompetitive justifications. Id. *30-31.

Finally, the court found no less restrictive alternatives, stating courts owe significant deference to trademark agreements negotiated by parties to those agreements. Id. at *34. While there is risk of collateral harm, it is antithetical to the goals of trademark policy to force companies not to aggressively enforce their trademarks. Id. The government offered the alternative that 1-800 and other parties could have agreed to disclose the identity of the rival seller in each search advertisement instead of prohibiting advertising on trademarked terms. Id. at *32. The government argued that the court should not grant as much deference to the private agreement as it would in a private antitrust suit because the FTC is different than a private party. Id. The Second Circuit rejected this argument, stating that the government still would need to show that the alternative is substantially less restrictive and achieve the same legitimate competitive benefits, which the government failed to do here. Id.

Accordingly, the Second Circuit vacated the Commission’s final order and remanded the case with instructions to dismiss the complaint. Id. at 35.

National College Athletic Ass’n v. Alston, 594 U.S. _ (June 21, 2021) | Bob Connolly

Limits on education-related benefits for student-athletes struck down under Rule of Reason; holding casts doubt on other financial limits permitted student athletes.

Bob Connolly

On June 21, the Supreme Court upheld a district court’s order against the NCAA enjoining the NCAA from applying the organization’s limitations on education-related benefits to student athletes.  The Supreme Court considered only the subset of NCAA rules restricting education-related benefits that the district court enjoined. The plaintiffs had dropped, for this litigation, their challenge to restrictions on other forms of benefits/compensation. In the unanimous opinion, the Court found that the district court had properly subjected the compensation restraints to rule of reason analysis, rejecting the NCAA’s argument that its restrictions should be judged under a very deferential standard.  The Supreme Court further supported the district court’s finding that, applying the rule of reason, the NCAA’s restrictions violated Section 1 of the Sherman Act, i.e. the restrictions were an unreasonable restraint of trade.  Colleges will now be able to offer scholarships to complete undergraduate, or graduate degrees at any school and paid internships after athletes have completed their collegiate sports eligibility.  The big question raised by this decision, to be answered later, is whether NCAA rules against student-athletes being paid, getting paid endorsements or otherwise compensated for their labor will be struck down.

Justice Gorsuch authored the opinion, with an important concurrence opinion by Justice Kavanaugh.  The key points takeaways from the opinion are:

1.         Rule of Reason Applies to the NCAA’s Restraints On

Compensation for College Athletes.

The key holding in the case, and the one that foreshadows further attacks on the NCAA’s restraints on compensation for student athletes, is that such compensation restrictions are properly subject to rule of reason analysis.  It was not disputed that college athletics was a relevant market and that in that market the NCAA had monopsony power. The district court below conducted a fact specific assessment of this market power and market structure in assessing the actual effect on competition, which was to depress compensation for at least some student-athletes below what a competitive market would yield.

The Supreme Court rejected the NCAA’s argument that its compensation restrictions should have been analyzed under an extremely deferential standard because it is a joint venture among members who must collaborate to offer the product of intercollegiate athletic competition.  The NCAA also contended that the Supreme Court had, in National Collegiate Athletic Ass’n v. Board of Regents of Univ of Okla., 468 U.S. 85, (1984), approved the NCAA’s restrictions on student-athlete compensation. The Court rejected this assertion, noting the in Board of Regents, the Court struck down restraints on televising games and compensation restraints were not at issue in that case. The NCAA argued that a comment in Board of Regents about the value of amateur sports was an endorsement of student-athlete compensation restrictions but the Court here noted that that was a passing comment on an issue not presented and not dispositive in the present case.

Finally, the Court rejected the NCAA’s contention that the rule of reason should not apply because of the special nature of college athletics and the important social value of preserving the amateur nature of college sports.  The Court rejected this argument citing National Soc. Of Professional Engineers, 435 US  679 (1978) and FTC v. Superior Court Trial Lawyers Assn, 493 U.S. 411 (1990) for the proposition that the social justifications proffered for restraints of trade [engineer and legal defense of the poor, respectfully] do not make the restraints any less unlawful.

2.         District Court Properly Applied the Rule of Reason Test

Having found that the district court was correct in subjecting the NCAA’s restraints to rule of reason analysis, the Court also agreed that the district court properly applied the analysis to the restraints.  The district court first found that that the NCAA enjoys “near complete dominance of, and exercise[s] monopsony power in, the relevant market”—which it defined as the market for “athletic services in men’s and women’s Division I basketball and FBS football, wherein each class member participates in his or her sport-specific market.”  Further, the district court found that the NCAA’s compensation limits “produce significant anticompetitive effects in the relevant market. The district court did find that NCAA rules that limit athletic scholarships to the full cost of attendance and that restrict compensation and benefits unrelated to education were reasonable because these payments could suppress consumer demand (the audience that pays to watch the product) by blurring the line between college and professional sports.  The plaintiffs did not challenge this ruling on appeal.  But the district court reached a different conclusion regarding compensation in the form of  education-related benefits. The district court found no evidence that allowing these benefits would decrease consumer demand for college sports because the compensation could be confused with professional athletes salaries. To the contrary, the plaintiffs demonstrated that consumer demand for college athletics could be maintained without the NCAA’s restraint on education-related benefits. The Supreme Court concluded the district court properly and carefully applied the multistep burden shifting rule of reason framework before enjoining the NCAA’s restrictions on education-related benefits for student-athletes. The Court upheld the district court’s injunction finding, “Enjoining the NCAA’s restrictions on these forms of compensation alone, the [district] court concluded, would be substantially less restrictive than the NCAA’s current rules and yet fully capable of preserving consumer demand for college sports.”

3.         Justice Kavanaugh’s Concurring Opinion

Justice Kavanaugh concurred in the opinion noting that the case involved only a narrow subset of the NCAA’s compensation rules, namely the rules restricting education-related benefits such as post eligibly scholarships at graduate or vocational schools.   But Justice Kavanaugh also observed that, “Price-fixing labor is price fixing labor” and “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.” Justice Kavanaugh ended with “The NCAA is not above the law.”

4.         Other Notes

This write-up is indeed an “e-brief.”  There is much more detail and flavor in the opinion.  Justice Gorsuch provides an interesting history of amateur/collegiate sports in America. The opinion also discusses the various tests–rule of reason, quick look, twinkling of an etc.–for evaluating whether an agreement is an unreasonable restraint.  The opinion also is not likely to be the last on the subject of the NCAA’s compensation restraints as the matter continues to be litigated in the courts–and possibly the subject of legislation in Congress.

Section News

Students Can Join the Section for Free

Law students can join up to three sections of the California Lawyers’ Association (CLA) for free?  We’d love to have you. Find more information here.

Celebrating Women in Competition Law in California | September 9, 2021

The Fifth Annual “Celebrating Women in Competition Law in California” panel presentation and networking event will be held on Thursday, September 9, 2021 at 5:30 pm. The event will feature a fantastic lineup of panelists who will engage in a lively discussion moderated by the Honorable Beth Labson Freeman. We have our fingers crossed that local health guidelines will allow us to hold this event in person. Please mark your calendars now and you will receive notification when registration opens in early July.

31st Annual Golden State Institute | November 17-18, 2021

Please save the date for the 31st Annual Golden State Institute on November 17-18, 2021!

This annual marquee event sponsored by the Antitrust and Unfair Competition Law Section promises expert panels on front page issues and cutting-edge legal developments, along with the unrivaled socializing and networking opportunities the Antitrust and Unfair Competition Law Section is renowned for. 2021 also marks the return of the Section’s star-studded California Antitrust Lawyer of the Year events. Don’t miss out!

For major sponsorship options, please email Antitrust@CAlawyers.org.

A Deeper Dive: Antitrust/Competition Careers in Government —Information for Students/Newer Lawyers

The most frequent career advice given to anyone who wants to work in the field of antitrust/consumer protection is to spend time working in one of the federal/state or local antitrust/consumer protection enforcement agencies.  It is a very exciting time to think about a career in antitrust with renewed interest in antitrust enforcement and big cases like Facebook and Google dominating the news, The information below is provided to give law students or newer lawyers information about how to become aware of career opportunities in government.

When job opportunities are announced there is often a short window of time in which to apply. It is, therefore, important if you are interested to set up alerts and know where to look for relevant openings.  And for Honors Program positions for students and recent grads, the application deadline is early–around the first week of September– so it’s best to review the process now, starting with the information provided below.

NOTE:  The information below is just to help get you started.  The agencies provide much more detail on their web sites which should be consulted carefully for up-to-date information.

  1. Suggestions for Law Students

If you are still in law school, or a recent grad, here are some tips for putting yourself in a better position to evaluate if antitrust is for you, and if so, where the opportunities might be:

  • Join the CLA/Antitrust and Unfair Competition section.  Law students can join up to three sections of the California Lawyers’ Association (CLA) for free.  We’d love to have you. More information here.
  • Create (and keep up-to-date)  a LinkedIn account and join in antitrust related LinkedIn groups.
  • Through the California Lawyers Association, LinkedIn, or other sources, find and attend webinars or other programs in the field that are of interest.  Many are  free to students.
  • If you are still in law school, take an antitrust/economics course.  It will help you decide whether you have an interest in this area of law, and if you do, it will show that interest to potential future employers. 
  • Talk to the Career Office in your law school for information/contacts they may have.
  1. Antitrust/Consumer Protection Government Opportunities

There are several possible avenues for job government job opportunities in antitrust:  Antitrust Division, US Department of Justice; Federal Trade Commission, and Attorney General’s Office, State of California.  Some District Attorneys’ offices also have consumer protection/antitrust sections.

United States Department of Justice, Antitrust Division

The Antitrust Division, US Department of Justice has responsibility for criminal enforcement of the antitrust laws as well as civil enforcement and merger responsibility.  The Antitrust Division hires new attorneys through its Honors Program as well as making lateral hires.  The Honors Program also hires summer law interns.

The Antitrust Division has field offices, including in San Francisco, with headquarters in Washington DC.

It is likely that the Antitrust Division will be hiring attorneys in the upcoming year.  On May 28, 2021, President Biden submitted his Budget for Fiscal Year 2022 to Congress, including $35.3 billion for the Department of Justice (“DOJ”), which was an overall increase of almost $4 billion from the previous administration’s DOJ request for Fiscal Year 2021. The Division requested $8.4 million to provide funding for 66 new positions to meet the additional workload of the Division’s enforcement programs in online platform investigations, criminal cartel prosecutions, and the Procurement Collusion Strike Force.

Honors Program Internships for 2cd Year Law Students

The Antitrust Division typically hires several summer interns for each of their offices/sections.  Applications are due early—by the first week of September. 

  • THE ATTORNEY GENERAL’S HONORS PROGRAM

Since 1953, the Attorney General’s Honors Program has been recognized as the nation’s premier entry-level federal attorney recruitment program.  The Honors Program attracts candidates from hundreds of law schools across the country representing a broad cross-section of experiences and interests.  Selections are made based on many elements of a candidate’s background, including a demonstrated commitment to government service, academic achievement, leadership, journal, moot court and mock trial experience, clinical experience, past employment, and extracurricular activities that relate to the work of Justice and the relevant component.  The Department of Justice seeks high caliber attorneys to advance its mission and welcomes applications from candidates whose backgrounds reflect the Nation’s rich diversity.

The Honors Program consists of two tracks—internships for law students and permanent positions for graduating students and judicial law clerks:

Summer Law Intern Program

The Summer Law Intern Program (SLIP) is the Department’s competitive recruitment program for compensated summer internships.  Each year, we hire approximately 50 paid summer legal interns. The majority of SLIP hires are second year law students who work at Justice the summer between their second and third years of law school.  The SLIP is also open to recent law school graduates between graduation and the start of a judicial clerkship or full-time qualifying legal fellowship.

Entry Level Attorneys

Eligibility is limited to graduating law students and recent law school graduates who entered judicial clerkships, graduate law programs, or qualifying legal fellowships within 9 months of law school graduation and who meet additional eligibility requirements.

The Antitrust Division offers eleven permanent positions and one two-year fellowship in the locations listed below.  Antitrust Division applicants may designate their interest in specific locations on the application.

Washington, DC  (10)
Chicago (2)
New York (1)
San Francisco (2)

Applications for Honors Program positions will open on July 31, 2021.  

Key Dates

  • July 31: Application opens
  • Early September: Application deadline
  • Late September:  Interview candidates selected
  • Mid-October – early November:  Main Honors Program interview period
  • Late November – February:  Offers Extended
Antitrust Division Lateral Hiring for Experienced Attorneys

As a general rule, an attorney who is an active member of the bar of any U.S. jurisdiction and has at least one-year post-J.D. legal or other relevant experience been eligible for an experienced attorney position.  Nevertheless, some attorney positions require greater experience and additional eligibility criteria.

All Justice organizations advertise their vacancies for experienced attorneys on the DOJ website (here). For email updates, click here.  Another source to be aware of is www.usajobs.gov.  All federal government jobs are advertised here.  In the “Enter a Department/Agency Name field,” type “antitrust division” and press Enter.

The following individuals currently work at the Antitrust Division and would be happy to talk to you about their experience:

Michelle Lee. I joined the Antitrust Division via the Honors Program, after graduating UC Berkeley School of Law in 2020. Prior to law school, I was a paralegal in the Criminal I Section of the Division in Washington DC, and during law school, I was an intern at the Federal Trade Commission in the San Francisco office. I am currently an attorney in the Antitrust Division’s San Francisco office, and am happy to speak with anyone interested in applying to an internship with the Antitrust Division, or to the Honors Program. My contact information is michelle.soyeon.l@gmail.com

Andrew Schupanitz. I joined the Division in 2016 as an Honors Attorney after graduating from Stanford Law School, where I was a joint degree student (I finally submitted my dissertation and received my history PhD in 2020). I cannot imagine a better or more interesting line of work and am happy to chat about/sing the praises of the Division and the work we do. The best way to reach me is by email: andrew.schupanitz@usdoj.gov

Federal Trade Commission

Like the Antitrust Division, the FTC will be experiencing a significant boost in budget. President Joe Biden’s proposed budget would give an 11% funding increase to the Federal Trade Commission (FTC).  Under the Biden budget, released Friday, May 28, the FTC, which has about 1,140 people and also investigates companies accused of deceiving consumers, would see its staff increase to about 1,250 in the 2022 fiscal year, which begins on October 1.

The FTC has field offices, including in San Francisco and Los Angeles with headquarters in Washington DC. For general information about jobs in the FTC, click:  Apply to the FTC where you can find information about current job postings, application instructions, evaluation information, displaced federal employees, and special hiring authorities. You can also apply to the Honors Paralegal Program through USAjobs.gov.  

Attorney Hiring in the Bureau of Competition:
The Federal Trade Commission’s Bureau of Competition enforces the nation’s antitrust laws. These laws promote vigorous competition and protect consumers from anticompetitive mergers and business practices, such as monopolistic conduct, attempts to monopolize, and conspiracies in restraint of trade. In addition to its enforcement work, the Bureau also provides guidance about the application of the antitrust laws to various stakeholders, including Congress, policy makers, other federal and state government agencies, foreign governments, industry participants, and the public.

Careers in the Bureau of Consumer Protection

The FTC’s Bureau of Consumer Protection—A Great Place to Work

The Federal Trade Commission—the nation’s consumer protection agency—is a dynamic organization that deals with evolving consumer issues, emerging technologies, and plain old-fashioned fraud. The Bureau of Consumer Protection works “For The Consumer” to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them.

For announcements across all agencies within the federal government, check out USA Jobs.  You can create a profile, explore opportunities and apply for open positions.

Peter Huston currently works at the FTC in San Francisco and also has had experience in private practice and the Antitrust Division, USDOJ.  He would be happy to would be happy to talk to you about his experience: phuston@ftc.gov.

State of California, Office of the Attorney General

There are two primary sections/offices in the California AG’s office dealing with antitrust and competition enforcement.

The Attorney General’s Antitrust Law Section enforces California’s antitrust laws both civilly and criminally, and federal antitrust laws civilly, through business merger/acquisition reviews, investigations of potential violations of the law, and, where necessary, litigation. 

  • Competition Unit, Healthcare Rights & Access Section

The Competition Unit, Healthcare Rights and Access Section, Public Rights Division, California Office of the Attorney General investigates and enforces California’s antitrust and competition laws as well as federal antitrust laws as they might impact the affordability, accessibility, and quality of healthcare and pharmaceutical products in California.”

For information about jobs in the Department of Justice and how to apply, click here.   The AG’s website also contains information about the Attorney General’s Honor Program (here).  The Attorney General’s Honors Program is a highly competitive program for recent law school graduates and newly admitted lawyers who are committed to a career in public service. 

The following individuals who are currently at the California AG’s office and would be happy to talk to you about their experience:

Agency Updates

Antitrust Division, US Department of Justice

June 30,2021 | Belgian Security Services Company and Three Former Executives Indicted for Bid Rigging on U.S. Department of Defense Contracts
A federal grand jury returned an indictment against Belgium-based Seris Security NV (Seris) and three executives for their roles in a conspiracy to fix prices, rig bids and allocate customers for defense-related security services, including a multimillion-dollar contract issued in 2020 to provide security services to the U.S. Department of Defense for military bases and installations in Belgium. This is the second charge and first indictment involving an international conspiracy obtained by the Procurement Collusion Strike Force (PCSF) and follows G4S Secure Solution NV’s (G4S) agreement to plead guilty in the investigation.

June 21, 2021 | Endeavor Executives Resign from Live Nation Board of Directors after Justice Department Expresses Antitrust Concerns
The Department of Justice announced today that two executives of Endeavor Group Holdings Inc. – Chief Executive Officer and Director Ariel Emanuel, and President Mark Shapiro – have resigned their positions on the Live Nation Entertainment Inc. Board of Directors after the department expressed concerns that their positions on the Live Nation Board created an illegal interlocking directorate. An interlocking directorate is where one person – or an agent of one person or company – serves as an officer or director of two companies. Section 8 of the Clayton Act prohibits the same person or company from serving as an officer or director of two competing companies, except under certain defined safe harbors.

June 11, 2021 | Justice Department Issues Statement on the U.S. Department of Agriculture’s Proposed Rules to Support Enforcement of the Packers and Stockyards Act
Acting Assistant Attorney General Richard A. Powers of the Justice Department’s Antitrust Division issued the following statement today after the U.S. Department of Agriculture’s (USDA) announcement concerning their proposed rules to support enforcement of the Packers and Stockyards Act:

“The Justice Department commends the USDA for the new steps it announced today to strengthen enforcement of the Packers and Stockyards Act to improve competition in our agricultural markets. The Antitrust Division remains committed to vigorous enforcement of the antitrust laws to protect American farmers, ranchers, and consumers, and to ensure they all benefit from robust competition. We stand ready to work hand in hand with the USDA to use our combined enforcement authorities to pursue these shared goals.”

Federal Trade Commission

June 15, 2021 | Lina Khan Sworn in as Chair of the FTC
Prior to becoming Chair of the FTC, Khan was an Associate Professor of Law at Columbia Law School. She also previously served as counsel to the U.S. House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law, legal adviser to FTC Commissioner Rohit Chopra, and legal director at the Open Markets Institute.

Khan’s scholarship on antitrust and competition policy has been published in the Columbia Law Review, Harvard Law Review, University of Chicago Law Review, and Yale Law Journal. She is a graduate of Williams College and Yale Law School.

June 25, 2021 | FTC Orders the Divestiture of Hundreds of Retail Stores Following 7-Eleven, Inc.’s Anticompetitive $21 Billion Acquisition of the Speedway Retail Fuel Chain
7-Eleven, Inc. and Marathon Petroleum Corporation have agreed to divest hundreds of stores used to sell gasoline and diesel fuel in 293 local markets across 20 states to settle Federal Trade Commission charges that 7-Eleven ’s acquisition of Marathon’s Speedway subsidiary violated federal antitrust laws. 7-Eleven consummated the acquisition on May 14, 2021, even though the company knew the acquisition violated Section 7 of the Clayton Act and Section 5 of the FTC Act.

The proposed order also prohibits 7-Eleven from enforcing noncompete provisions for franchisees or employees working at or doing business with divested assets

June 11, 2021 | Louisiana Real Estate Appraisers Board Agrees to Settle FTC Charges that It Fixed Prices for Appraisal Services in Louisiana
The Louisiana Real Estate Appraisers Board has agreed to stop fixing compensation levels for residential real estate appraisal services in Louisiana as part of a settlement reached with the Federal Trade Commission, after the agency alleged that the Board’s conduct violated federal antitrust law.

June 4, 2021 |  Statement of Acting Bureau of Competition Director Maribeth Petrizzi Regarding Decision of Pennsylvania Cement Producers Lehigh Cement Company LLC and Keystone Cement Company to Abandon Their Proposed Merger
“This is great news for cement customers in eastern Pennsylvania and western New Jersey. The FTC voted 4-0 to challenge this transaction because it would have reduced the number of significant competitors in the market for gray portland cement in this region from four to three. I’m grateful to the Bureau’s staff for their tireless efforts throughout this investigation, but also to our partners in the Pennsylvania Attorney General’s Office, who worked closely with us to ensure that cement customers in this region will continue to benefit from competition between Lehigh and Keystone.”

California AG’s Office

June 4, 2021 | Attorney General Bonta Conditionally Approves Sale of Los Angeles County Area Psychiatric Hospital
“It is part of the job of the Attorney General to ensure that the sale of a healthcare facility like Glendora Oaks is in the best interest of Californians, particularly the community served by the hospital,” said Attorney General Bonta. “Today, after thorough review of the proposed transaction, including listening to the opinions of the public, we’ve conditionally approved the sale of Glendora Oaks to CHLB. While we believe the sale will ultimately bebeneficial to thepeople of east LA County, our conditions allow DOJ to monitor and make sure the community’s needs are being met.”

Other News and Notes

  • Recently Published: Inclusivity and Excellence Guidelines and Best Practices for Judges Appointing Lawyers to Leadership Positions  In MDL And Class-Action Litigation, James F. Humphreys Complex Litigation Center George Washington Law School, March 15, 2021

    From the Foreword:
    The paper has three parts, preceded by a one-page summary; they are intended to represent stand-alone documents. The first part explains and documents the lack of diversity in leadership appointments in MDLs and class actions. The second part builds on the Duke GUIDELINES AND BEST PRACTICES for MDLs and applies them to class actions, establishing guidelines and best practices for ensuring that the lawyers leading these complex and important cases are the best qualified to do so and will continue to be in the years ahead.1 The third part makes recommendations to the Federal Judicial Center and the Judicial Panel on Multi-District Litigation.
  • Senate Passes Bill to Substantially Increase HSR Merger Filing Fees for Deals Greater than $5 billion
    On June 6, 2021, the US Senate passed the Merger Filing Fee Modernization Act of 2021. The bill substantially increases the Hart-Scott-Rodino Act (HSR) filing fees for large mergers, while also effectuating a slight decrease in HSR filing fees for smaller mergers. The text of the bill can be found here.
  • Big Banks Required to Fill Board Seats With Women Under ECB Proposal, Wall Street Journal, June 15, 2021, Patricia Kowsmann
    “Top European bank regulator would be able to block board appointments based on candidate’s gender.”

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