WELCOME to the July/August 2022 edition of E-Briefs, News and Notes from the Antitrust and Unfair Competition Law Section. We recently issued a Special Edition of E-Briefs, News and Notes devoted to providing application information for law students and current judicial law clerks who may be interested in a position with a government enforcement agency. The Special Edition is available here.
This edition has our usual content.
- In Section News we proudly announce the selection of Elizabeth C. Pritzker, of Pritzker Levine LLP, as the Sections 2022 Antitrust Lawyer of the Year. Elizabeth will be honored at our ALOY dinner following our annual Golden State Antitrust and Unfair Competition Law Institute on November 10 in San Francisco. Hold the date!
- Section News also has information about the Section’s new UCL Institute—consisting of three panels and a cocktail reception—on September 29 in Los Angeles.
- E-briefs contains summaries of new cases involving reverse payments, monopolization claims, and no-poach agreements.
- Deeper Dive is an analysis of the DOJ’s evolving policy regarding preindictment meetings with defense counsel.
- The Enforcement Agency Press Releases show that, despite some litigation setbacks, the enforcement agencies are very active in labor law/employment investigations. The FTC’s recent challenge to a Meta proposed merger also shows a continuing willingness to stretch competition law into new areas.
- The In Case You Missed It section re-posts numerous articles and other matters of interest to antitrust and unfair competition lawyers. To the extent possible, the news items reprinted are not behind a paywall.
Thanks to all the contributors to this edition. If you have any suggestions for improvement, or an interest in contributing to E-Briefs, please let us know.
Message from the Chair
One reason I joined the Section is to attend in-person events to see friends and colleagues in the antitrust and UCL bar. We are finally past the long, cold, dark winter of Covid that eliminated in-person events. This fall we are fully returning to in-person events, and I want to highlight two events that I hope you will attend.
- Sept. 29, 2022, UCL Institute, Omni Hotel, Los Angeles: This new UCL event will consist of three engaging panels: Meet the UCL and FTC Enforcers; Emerging UCL Issues; and Strategies and Pitfalls in UCL Litigation. The panels will be followed by a cocktail reception. The fee for attending the panels and the reception is only $25. Learn more about the program and register today.
- Nov. 10, 2022, Golden State Antitrust and UCL Institute (GSI) and 2022 Antitrust Lawyer of the Year: Julia Morgan Ballroom, San Francisco. Our annual GSI program and 2022 Antitrust Lawyer of the Year reception and dinner are back on our usual fall schedule. Elizabeth Pritzker (Pritzker Levine, LLP) will be honored as the Section’s 2022 Antitrust Lawyer of the Year. GSI will have the usual lineup of topical and engaging panels. Registration will open soon.
The entire Executive Committee looks forward to seeing you!
David M. Goldstein
Chair, Antitrust and UCL Section
Elizabeth Pritzker Recognzied as 2022 Antitrust Lawyer of the Year
The Antitrust and Unfair Competition Law Section of the California Lawyers Association is pleased to honor Elizabeth C. Pritzker of Pritzker Levine LLP as the 2022 “Antitrust Lawyer of the Year.” The Section will honor Elizabeth on November 10, 2022, at our Antitrust Lawyer of the Year dinner following our Golden State Antitrust and Unfair Competition Law Institute.
Elizabeth has been a leading plaintiffs-side antitrust attorney for over two decades, establishing herself in key roles in the In re DRAM Antitrust Litigation, the In re SRAM Antitrust Litigation, and the California Natural Gas Antitrust Cases.
Registration Now Open for the Inaugural UCL Institute | September 29, 2022
The Antitrust & Unfair Competition Law Section’s brand new UCL Institute will feature leading UCL practitioners from across the private and public sector. This multi-session conference will feature programs on government enforcement activity, recent developments in unfair competition law, and practical advice for litigating a UCL case. Following these panels, all attendees are invited to stay for an outdoor reception featuring an open bar and hors d’oeuvres. Learn more about the program and register today.
Place: Omni Los Angeles Hotel at California Plaza, 251 South Olive Street
Date: Thursday, September 29, 2022
Time: 2:00 p.m. to 5:30 p.m. – Panels
5:30 p.m. to 7:00 p.m. – Reception (Open Bar and Hors D’oeuvres)
CLE: 3.00 Hours
Price: Only $25!
Featuring three panels of leading practitioners from the government and private bar:
Meet the UCL and FTC Act Enforcers
- Maricela Segura, Director, FTC Western Region Los Angeles
- Nicklas Akers, Senior Assistant Attorney General, Consumer Protection Section, California Department of Justice
- Christina Tusan, Supervising Attorney, Consumer and Workplace Protection Unit, Los Angeles City Attorney’s Office
Emerging UCL Issues
- Michael L. Mallow, Los Angeles Managing Partner and Co-Chair of Class Action & Appellate Litigation Practice Group, Shook, Hardy & Bacon
- Roland Tellis, Head of Class Action Practice Group, Baron & Budd
- Thomas A. Papageorge, Head of Consumer Protection Unit, San Diego District Attorney’s Office
Strategies and Pitfalls in UCL Litigation
- Gayle I. Jenkins, Co-Chair for Class Actions, Winston & Strawn
- Hoon Chun, Head Deputy for Consumer Protection, Los Angeles County District Attorney’s Office
- Tracy Hughes, Attorney, Robinson Calcagnie
Registration Now Open for the 2022 Annual Meeting | September 15-17, 2022
September 15-17, 2022 | REGISTER HERE
The CLA Annual Meeting is back in-person this year. Dust off your travel gear, pack your fanciest clothes, and join us in San Diego! As CLA’s biggest event of the year, this three-day conference is packed with quality connections, industry insights, and innovative business solutions. Fulfill CLE credits, enjoy keynote speakers, meet sponsors, and learn about the latest trends in the legal community. Sign up now.
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.
Visit the CLA Career Center: Post a job; find a job.
In Re Seroquel—Court Dismisses Pay-for-Delay Claims | Meiran Yin, Associate at Latham & Watkins LLP, and Daniel Hemming, JD Candidate at Georgetown University Law Center
On July 5, 2022, the U.S. District Court for the District of Delaware dismissed a variety of claims in In re Seroquel XR Antitrust Litigation, No. 20-1076-CFC. The Plaintiffs are pharmaceutical wholesalers (the Direct Purchasers), union health and welfare funds and municipalities who operate employee and retiree health benefit plans (the End-Payors), as well as pharmaceutical retailers (the Retailers). Mem. Op., id. (D. Del. July 5, 2022), ECF No. 178, at 1, 15. The Defendants are AstraZeneca Pharmaceuticals, Handa Pharmaceuticals, Par Pharmaceuticals, and Accord Pharmaceuticals. Plaintiffs allege that AstraZeneca, which manufactures the anti-psychotic drug Seroquel XR®, entered into settlement agreements with and made large non-cash “reverse payments” to Handa, Par, and Accord, in order for the latter group to stop challenging the validity of AstraZeneca’s patent and to delay the market entry of generic versions of Seroquel XR®. Id. at 1–2, 9–13. Defendants moved to dismiss. The court dismissed all federal antitrust claims based on the Accord/AstraZeneca agreement and a selection of the End-Payor’s state law antitrust claims.
The settlement agreements at issue arose out of an Abbreviated New Drug Application (ANDA) litigation under the Hatch-Waxman Act. The Hatch-Waxman Act provides procedures for generic manufacturers to file ANDA to seek FDA approval for generic drugs shown to be bioequivalent to a drug previously approved, so long as certain procedures are followed. If the owner of the patent on the branded drug files suit within 45 days of the ANDA filing, then a 30-month stay of the FDA’s approval of the generic is triggered. The first ANDA filer also enjoys a 180-day exclusivity period in which other generic manufacturers may not enter the market.
AstraZeneca owns U.S. Patent No. 5,948,437 (the ’437 patent) covering Seroquel XR®. In 2008, Handa filed its ANDA for generic Seroquel XR® in four dosages. Earlier in the year, Accord also filed its ANDA for generic Seroquel XR® in one dosage. Pursuant to Hatch-Waxman procedures, Handa and Accord filed paragraph IV certifications, asserting that the ’437 patent was “invalid, unenforceable, or would not be infringed by their respective generic products.” Id. at 10. In response, AstraZeneca filed infringement suits against Handa and Accord.
During the Handa litigation, it became clear that Handa’s generic would not infringe the ’437 patent. In turn, the FDA tentatively approved Handa’s ANDA but did not give final approval due to the 30-month stay triggered upon AstraZeneca filing suit. In response, AstraZeneca entered into a non-cash “reverse payment” agreement with Handa. Id. at 11. AstraZeneca promised not to sell its authorized generics during Handa’s 180-day exclusivity period and to allow Handa to purchase AstraZeneca’s product during the exclusivity period in exchange for Handa dropping its challenge of the ’437 patent as invalid and delaying its generic’s entry into the market. The Plaintiffs alleged the agreement was worth around $200 million. Id. at 12. Par later acquired Handa’s ANDA and was assigned the Handa/AstraZeneca settlement agreement.
Similarly, Accord received tentative approval of its ANDA in 2010. But Accord conceded in litigation that its generic product infringed the ’437 patent and its invalidity challenges proved unsuccessful in court. Id. at 13. Accord then entered into a similar settlement agreement with AstraZeneca. Plaintiffs asserted the agreement was worth about $100 million.
Plaintiffs allege that without the settlement agreements, Handa and Accord would have received final FDA approval and sold their generic products before November 1, 2016. Accordingly, brand Seroquel XR® would have faced competition in the market before November 1, 2016 and AstraZeneca would have sold authorized generic Seroquel XR® “contemporaneously with the market entry by Handa/Par and Accord.” Id. at 14–15. As a result, Plaintiffs claim that they paid supracompetitive prices for Seroquel XR®.
Direct Purchaser Plaintiffs’ Federal Antitrust Claims
Defendants argued dismissal of the Direct Purchasers’ complaint was required for two reasons. First, the federal antitrust claims were barred by the applicable statute of limitations. Second, Plaintiffs failed to plead antitrust standing.
Statute of Limitations
The parties agreed the statute of limitations for the federal antitrust claims was four years, but disputed when the Direct Purchasers’ claims accrued. Defendants argued the claims accrued in October 2011, when the settlement agreements were executed and publicly announced. Defendants do not believe that each of their continuing sales of Seroquel XR® restarted the limitations period because those sales were not “new overt acts,” but rather, were merely “a manifestation of the prior overt act of entering into [the settlement agreements].” Id. at 20 (emphasis in original). The court rejected this argument, holding the statute of limitations begins to run from the commission of an act that injures the plaintiff—i.e., here each sale of Seroquel XR® at supracompetitive prices. And, on policy grounds, the court reasoned that agreeing with Defendants would allow parties to enter into agreements which “divvy up a market for the purpose of raising prices” but escape liability by waiting four years to actually raise the prices. Id. at 25.
Defendants argued the Direct Purchaser Plaintiffs failed to allege facts plausibly supporting an antitrust injury.
As to the settlement agreement entered into between Handa/Par and AstraZeneca, Defendants argued the settlement agreement did not injure the Plaintiffs, because the FDA did not give final approval for the Handa generics until May 2017, after the period in which Plaintiffs claim they should have been able to purchase the product. But the court found the complaint plausibly alleged facts showing the FDA might have delayed the approval in light of the settlement agreements. Id. at 28–29. Viewed in the light most favorable to the Plaintiffs, absent the settlement agreement, the FDA would have approved the Handa/Par generics by November 1, 2016, thus satisfying antitrust standing requirements. Id. at 32–33.
Turning to the Accord/AstraZeneca agreement, the court reached a different conclusion. Defendants argued patent laws blocked the market entry of Accord’s generics because the products infringed AstraZeneca’s patent and Accord’s invalidity theories were unsuccessful in court. Plaintiffs argued the $107 million value of the reverse payment was sufficiently large as to imply the ’437 patent was of dubious validity. The court rejected Plaintiff’s argument because “multi-billion dollar jury awards are not uncommon” in pharmaceutical patent cases, and in light of that, a $107 million reverse payment settlement was not sufficiently large to support the inference of patent invalidity. Id. at 36–37. The court agreed with Defendants and dismissed all claims based on the Accord/AstraZeneca agreement. Id. at 40.
Since the Retailers’ complaint alleged claims identical to the Direct Purchasers, Defendants asserted it should be dismissed for the same reasons. Accordingly, the court dismissed all claims based on the Accord/AstraZeneca agreement and allowed the rest.
The End-Payor Plaintiffs conceded their state law claims should be dismissed if the Direct Purchaser’s federal antitrust claims were dismissed. Accordingly, the court dismissed the End-Payor’s claims that were based on the Accord/AstraZeneca agreement. Id. at 41.
End-payor Plaintiffs’ State Law Antitrust claims
The End-Payor Plaintiffs were indirect purchasers since they reimbursed others who made direct purchases. Defendants argued that these indirect purchasers cannot bring federal antitrust claims because the Supreme Court has previously held indirect purchasers cannot satisfy antitrust standing requirements in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). But indirect purchasers can assert certain state law antitrust claims. Defendants asserted that claims under state law in several states should be dismissed for lack of antitrust standing, and claims under state law in a few other states should be dismissed for failure to allege effects on intra-state commerce.
Illinois: Defendants argued the state antitrust law prohibited indirect purchasers from maintaining a class action, and such prohibition was a substantive state law which must be applied in federal court. The court deemed the first argument waived because Defendants barely briefed the issue. On the second point, the court hesitated to wade into Erie’s murky waters, stating only that courts were divided on the state law’s import in federal court. The court accordingly allowed the claims to stand. Mem. Op., In re Seroquel XR Antitrust Litigation, No. 20-1076-CFC (D. Del. July 5, 2022), ECF No. 178, at 50.
Maryland: Maryland amended its Antitrust Act to allow claims by indirect purchasers. But Defendants argued the amendment had no retroactive effect, so indirect purchaser claims accruing prior to the amendment were barred. The court agreed, but noted the pre-amendment act still allowed claims by political subdivisions, which include End-Payor Plaintiffs the Mayor and City Council of Baltimore. The court therefore dismissed the claims asserted by non-political subdivision Plaintiffs on purchases made prior to the statutory amendment. Id. at 51.
Massachusetts: The state antitrust laws prohibited indirect purchasers from bringing suit and the court dismissed the End-Payors’ claims on this basis. Id. at 53.
Utah: The Utah Antitrust Act authorizes suits only by citizens or residents of Utah. Defendants asserted no named Plaintiff was a citizen or resident of Utah. The court agreed, dismissing the End-Payor’s claims under Utah law. Id. at 54.
Intra-State Effects: Defendants argued four state antitrust laws required effects on intra-state commerce to bring suit and there were no such allegations in the complaint. But the court found Plaintiff’s allegations that brand and generic Seroquel XR® were shipped into each state and sold to or paid for by the End-Payors sufficiently pleaded intra-state effects. Id. at 54–55.
Seventh Circuit Sides with Doctor in Antitrust Case Against Indiana Health Network and Clarifies the Hypothetical Monopolist Test | Thomas H. Burt and Rourke Donahue, Wolf Haldenstein
In Vasquez v. Indiana Univ. Health, Inc., the Seventh Circuit reversed the lower court’s decision granting a motion to dismiss against an Indiana doctor who alleged monopolistic behavior by a regional health network. No. 21‐3109, 2022 U.S. App. LEXIS 18857 (7th Cir. July 8, 2022). The opinion is an instructive application of the “hypothetical monopolist test” to plead a geographic market. It stands primarily as a caution to district courts in the limits of scrutinizing geographic market allegations on mere pleadings.
Facts: Dr. Ricardo Vasquez is an independent vascular surgeon in Bloomington, Indiana. Indiana University Health (“IU Health”) entered his regional market when it acquired Bloomington Hospital in 2010 and Premier Healthcare in 2017, also in Bloomington. After the Premier acquisition, IU Health employed 97% of primary care physicians (“PCPs”) in Bloomington and 80% of PCPs in the wider region. Id. at *3.
Vasquez alleged that IU Health amassed monopolistic market power in the region’s medical industry and initiated a “systematic and targeted scheme” against him in 2018. Id. at *3-4.He claimed IU Health wanted to tarnish his reputation and practice because he was committed to independent practice, whereas IU Health prefers to employ its doctors directly. To further this alleged scheme, IU Health revoked his admitting privileges to Bloomington Hospital in 2019 and IU Health employees allegedly spread lies that he has been sued with unusual frequency. Id.
Vasquez sued IU Health, claiming antitrust violations under the Sherman Act, 15 U.S.C. §§ 1–7, and the Clayton Act, id. §§ 12–27. IU Health moved to dismiss, arguing that neither the Sherman Act nor Clayton Act claims were premised on a plausible geographic market and that the Clayton Act claims also were time‐barred. The district court agreed on both points and dismissed the suit. Id. at *4.
Analysis: The Seventh Circuit devoted most of its discussion to explaining that Vasquez had sufficiently pleaded a geographic market under the “hypothetical monopolist test” for his Sherman and Clayton Act claims. This test asks,
[W]hat would happen if a single firm became the only seller in a candidate geographic region. If that hypothetical monopolist could profitably raise prices above competitive levels, the region is a relevant geographic market. But if customers would defeat the attempted price increase by buying from outside the region, it is not a relevant market; the test should be rerun using a larger candidate region.
FTC v. Advocate Health Care Network, 841 F.3d 460, 468 (7th Cir. 2016) (citations omitted).
In establishing Bloomington as the geographic market under this test, Vasquez first argued that the vascular surgery market in Bloomington is inherently local because vascular surgery patients need ongoing or even lifetime care. Accordingly, insurers face pressure to provide vascular surgery in or near Bloomington, allowing a hypothetical monopolist over vascular surgery to abuse its market power by jacking up payor prices and freezing out potential competitors. Vasquez, 2022 U.S. App. LEXIS 18857, at *6-7.
Next, Vasquez argued that vascular surgeons’ reliance on referrals makes Bloomington an appropriate geographic market because a hypothetical monopolist would control not only that market, but also the flow of patients to vascular surgeons. Id. at *7-8.
The Court clarified that the pleading stage is not the place for a detailed analysis of geographic market, which is typically analyzed using survey data performed by an expert. At the pleading stage, the Seventh Circuit held, only a “plausible story” was necessary. Here, Vasquez had pleaded plausible accounts of how IU Health could control prices within an identified geographic market. In fact, the Court held, Vasquez went even further and pleaded that IU Health already dominates the Bloomington market in reality, not just hypothetically. He reasoned that IU Health employs 97% of the PCPs in Bloomington and controls the hospital with the most advanced equipment and all the vascular surgeons, other than Vasquez. Id. at *8-9.
The district court had found Vasquez’s geographic market theory to be contradictory because he stated that patients prefer to receive care close by and that many patients at Bloomington Hospital arrive from rural areas far away. The Seventh Circuit brushed this aside, first pointing out that Federal Rule of Civil Procedure 8(d)(3) specifically permits contradictory pleadings. Id. at *10-11. Next, the Seventh Circuit reasoned that Vasquez’s claims were not in fact contradictory because urban patients can and prefer to receive care close by, whereas rural patients expect to and often must travel to neighboring cities to receive care. Id.
Additionally, the district court found that Bloomington could not be the appropriate geographic market if a significant portion of IU Health’s patients regularly travel substantial distances to get to Bloomington. The Seventh Circuit explained that this confused two different kinds of market. The geographic market for an antitrust claim need not correspond to the comprehensive market that the alleged monopolist serves. See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593 (1957).
Finally, the Seventh Circuit held that Vasquez’s Clayton Act claims could not be dismissed for untimeliness at the pleading stage. Vasquez filed suit four years and one month after IU Health acquired Premier, and Clayton Act claims have a four-year statute of limitations (15 U.S.C. § 15b). Importantly, the limitations period is qualified by the discovery rule. In re Copper Antitrust Litig., 436 F.3d 782, 789 (7th Cir. 2006).
The court reasoned that, at the pleading stage, it could not ascertain when Vasquez discovered his injury and, thus, when the clock started ticking. Vasquez’s discovery date could have been when IU Health acquired Premier in 2017, when its employees started spreading alleged lies about him in 2018, or when IU Health revoked his admitting privileges in 2019. Accordingly, this fact-intensive question could not be ironed out without engaging in discovery at a later litigation stage. Vasquez, 2022 U.S. App. LEXIS 18857, at *14-16.
Ultimately, the Vasquez court identified the error in the district court’s resolution at the pleading stage of questions that required discovery for resolution. Geographic market requires only a plausible account at the pleading stage, to later be resolved on a full record. Likewise, the timeliness issue turned on the close factual inquiry of when plaintiff’s clock began ticking, which could not be resolved on pleadings. Defendants seeking dismissal on assertedly flawed geographic market pleadings will need to show that the pleadings are significantly more implausible than those presented in Vasquez.
“Probable” or “Predictive” Antitrust Injury By Private Plaintiff Does Not Satisfy Standing Requirement to Challenge Merger | Cheryl Johnson
Cheryl Johnson, email@example.com
In Marion Healthcare v. Southern Illinois Hospital, Case No. 21-cv-00873-SPM, 2022 WL 2317303 (S.D. Ill. 6/28/2022), Marion, a surgery center in southern Illinois, challenged the acquisition by Southern Illinois Hospital System (SIH) of another Harrisburg-based hospital system, alleging that it would “enhance SIH’s already existing monopoly power in the market for acute care . . . and ambulatory surgery services,” and thus “substantially reduce competition in those markets . . . potentially raising costs to patients, reducing choice of institutional providers . . . and, further, causing antitrust injury . . . .” 2022 WL 2317303, at *2. SIH moved to dismiss, asserting that Marion lacked standing and failed to allege plausible antitrust injury and proximate causation. Id., at *1.
Standing. The court deemed Marion’s allegations that the merger would give rise to “increased prices to patients, a reduction of choice of institutional providers and physicians, reduced referrals suppressing Marion’s ability to compete, and the like” as “conclusory and hypothetical.” Id. at *3. While noting it was “possible, and arguably probable” that the merger would impact Marion’s business, Article III standing required pleading a concrete injury to the plaintiff that was not satisfied by allegations of “predictive” or “probabilistic injury.” Id., at *2-3.
Antitrust Injury. “Antitrust standing” is “called ‘proximate cause’ in the Seventh Circuit” and requires pleading antitrust injury beyond economic injury to one plaintiff and the type of injury that antitrust laws target. Id., at *3-4. Marion argued that under Seventh, Ninth and District of Columbia Circuit law, it could use the increase in the Herfindahl-Hirschman Index (“HHI”) to show that the merger might substantially lessen competition, providing an appraisal of the immediate impact of the merger, as well as a prediction of its impact upon competitive conditions in the future. Id., at *4. The court disagreed, stating that the cases all involved federal government enforcement actions in which the government, unlike private plaintiffs, need not demonstrate proximate cause. Id., at *4-5. While agreeing that a loss of physician referrals by Marion “can be antitrust injury,” it cited SIH’s statement that it had “no plans to change referral plans” as negating injury though SIH’s statement fell short of any guarantee. Id., at *4.
The court remarked that enforcement in this case was better left to the FTC and DOJ “especially as the current administration takes a heavier hand against hospital mergers” that increase consumer prices. Id., at *5. However, recognizing that it was “conceivable that consolidation of healthcare facilities could cause economic harm,” the court dismissed the complaint without prejudice. Id.
Court Applies Rule of Reason to Grant Motion for Judgment on the Pleadings to Dismiss Challenge to McDonald’s No-Solicitation and No-Hire Provision | David M. Goldstein and Marc Siegel, Famer Brownstein Jaeger Goldstein Klein & Siegel LLP
In Deslandes v. McDonald’s USA, LLC, Judge Jorge L. Alonso granted McDonald’s motion for judgment on the pleadings against a Sherman Act Section 1 claim based on a no-solicitation and no-hire provision (collectively, “no-hire provision”) in McDonald’s franchise agreements. The court applied the rule of reason–rather than the per se rule or quick look analysis–and concluded plaintiffs’ amended complaints did not state a claim. The court denied plaintiffs’ request for leave to amend, terminating the case in McDonald’s favor. No. 17 C 4857, 2022 WL 2316187 (N.D. Ill. June 28, 2022).
Some McDonald’s restaurants are owned and operated by subsidiaries of McDonald’s, but many are owned and operated by franchisees. Plaintiffs alleged that a no-hire provision in McDonald’s franchise agreements violates Section 1. The challenged no-hire provision provided as follows:
Franchisee shall not employ or seek to employ any person who is at the time employed by McDonald’s, any of its subsidiaries, or by any person who is at the time operating a McDonald’s restaurant or otherwise induce, directly or indirectly, such person to leave such employment. This paragraph [ ] shall not be violated if such person has left the employ of any of the foregoing parties for a period in excess of six (6) months. (Am. Complt. ¶ 87). Id., *1.
Plaintiffs alleged that the no-hire provision violated Section 1 under the per se rule or quick look analysis. Defendants argued that the provision is subject to the rule of reason.
The court previously ruled on defendants’ motion to dismiss that the provision is not subject to the per se rule because it is ancillary to an output-enhancing agreement—the franchise agreement itself increased output of burger and fries. Deslandes v. McDonald’s USA, LLC, 2018 WL 3105955, *8 (N.D. Ill. June 25, 2018) (“Deslandes I”). The court also ruled, however, that the restraint might be unlawful under quick look analysis because the McDonald’s-owned restaurants competed with the franchised restaurants, and this adequately alleged a horizontal restraint. The court allowed plaintiff Deslandes to amend her complaint to add allegations to support a rule of reason claim, but she chose not to do so. 2022 WL 2316187, *2. Plaintiff Turner had filed her own complaint, which was consolidated with Deslandes’s complaint.
Thereafter, the court denied plaintiffs’ class certification motion because under the rule of reason individual issues would predominate. The court reached this conclusion because (1) restraints of trade presumptively call for rule of reason analysis (citing NCAA v. Alston, __ U.S. __, 141 S.Ct. 2141 (2021); (2) vertical restraints, such as those between McDonald’s and its franchisees where McDonald’s did not own restaurants, are subject to the rule of reason (citing Leegin Creative Leather Products, Inc. v. PSKS, Inc., 51 U.S. 877 (2007); and (3) McDonald’s provided evidence of procompetitive effects sufficient to warrant rule of reason analysis. Deslandes v. McDonald’s USA, LLC, 2021 WL 3187668 (N.D. Ill. July 28, 2021) (“Deslandes II”). The case proceeded on behalf of the two named plaintiffs rather than as a class action.
Defendants’ motion for judgment on the pleadings argued that the court had already ruled that the no-hire provision is subject to the rule of reason, but plaintiffs failed to plead a rule of reason claim. The court agreed. In again rejecting quick look analysis, the court relied upon NCAA v. Alston to explain that the no-hire provision “falls in ‘the great in-between’ of restraints that require rule-of-reason analysis. This Court cannot say that it has enough experience with no-hire provisions of franchise agreements to predict with confidence that they must always be condemned, which means, under Alston, that the Court must apply rule-of-reason analysis to this case.” 2022 WL 2316187, *4. The court also rejected per se analysis, finding the no-hire provision is an ancillary restraint subject to the rule of reason (rather than a naked restraint subject to the perse rule). As the court explained, even though the restraint has “horizontal elements (in that the franchisees competed with the franchisor for labor), the restraint is not per se unlawful because it ‘may contribute to the success of a cooperative joint venture that promises greater productivity and output.’” Id., *5 (citing Polk Bros., Inc. v. Forest City Enterprises, Inc., 776 F.2d 185, 189 (7th Cir. 1985)).
The court also rejected plaintiffs’ request to proceed with a rule of reason claim based on the allegations in the amended complaints even though they did not expressly allege a rule of reason claim. The court had previously noted that there were 517 quick-service restaurants within 10 miles of plaintiff Deslandes’s home, and 253 quick-service restaurants within 10 miles of plaintiff Turner’s home. Id. *3. The court concluded that—putting aside whether the complaint expressly alleged a “rule of reason” claim—the court could dismiss any rule of reason claim “for failure to include allegations of market power in a relevant market, because those are the facts necessary to render plausible a claim that a restraint is unlawful under rule-of-reason analysis. Deslandes and Turner failed to include such facts.” 2022 WL 2316187, *5-6. The court also rejected plaintiffs’ argument that “McDonald’s restaurants constitutes a market all its own, separate from the market for employment by other quick-serve restaurants.” Id. The court concluded that plaintiffs failed to allege “a relevant market or that [McDonald’s] had market power in that relevant market.” Id., *6.
The court also denied plaintiffs’ request for leave to amend their complaints. It explained that plaintiffs had multiple opportunities to amend their complaints and had failed to do so. In addition, the court concluded any rule of reason claim would be futile because the relevant local markets had many other quick serve restaurants, and plaintiffs could not plausibly allege that McDonald’s had market power in those markets. Id.
The court granted McDonald’s motion for judgment on the pleadings and terminated the case. Plaintiffs filed a notice of appeal on July 27.
The Deslandes opinion likely will encourage defendants to rely on last year’s U.S. Supreme Court’s decision in NCAA v. Alston to argue that a full rule of reason analysis—and not a quick look analysis or the per se rule—is the appropriate standard for evaluating no-solicitation and no-hire provisions in franchise cases. But even outside of the franchise context, defendants are likely to cite the opinion for the broader proposition that no-hire provisions ancillary to legitimate business collaborations should be evaluated under full rule of reason analysis.
D.C. Superior Court Rejects Bid to Revive DC AG’s Monopolization Suit Against Amazon | Bob Connolly, Law Office of Robert Connolly
Bob Connolly, Law Office of Robert Connolly
In District of Columbia v. Amazon, Case # 2021 CA 001775B, (Sup. Ct. Dist. Col. August 1, 2022), the Court rejected the Plaintiff’s Motion for Reconsideration, including a request for leave to amend the Complaint. The original Complaint was filed on March 25, 2021. A First Amended Complaint (“FAC”) raised claims of Agreements in Restraint of Trade (by virtue of Most Favored Nation agreements (“MFN”) and Minimum Margin Agreements (“MMA”). The FAC also alleged Illegal Maintenance of Monopoly and Attempted Monopolization in Violation. On March 18, 2022, after a hearing, Defendant’s Motion to Dismiss was granted without a written opinion. Plaintiff moved the Court to reconsider the dismissal and grant Plaintiff leave to file a Second Amended Complaint, or to issue a written order of decision to memorialize the Court’s March 18, 2022 ruling.
While the FAC was based on District of Columbia Code, the dismissal was grounded in the Court’s application of federal pleading standards. In its request for reconsideration, Plaintiff argued that the Court misapplied the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009). District of Columbia v. Amazon, at *4-5. The Court acknowledged that it was to apply a plausibility, not probability standard, citing, Penn Allegheny Health Sys. v. UPMC, 627 F.3d 85 (3rd Cir. 2010). In that case, the Third Circuit reviewed a decision where the trial court “opined that judges presiding over antitrust and other complex cases must act as gatekeepers and must subject pleadings in such cases to heightened scrutiny.” Id., 627 F.3d at 98 (internal quotations omitted). District of Columbia v. Amazon, at *6. The Court also acknowledged that “because the proof is largely in the hands of the alleged conspirators, dismissal procedures should be used sparingly in complex antitrust litigation until the plaintiff is given ample opportunity for discovery.” (citing WAKA, LLC v. DC Kickball, 517 F.Supp.2d 245,249 (D.D.C. 2007). Still, the Court dismissed Plaintiff’s’ Complaint. District of Columbia v. Amazon, at *6-7.
The Court supplemented its Order with justifications for the dismissal.
Count 1 Agreement in Restraint of Trade (Price Parity Provision/Fair Pricing Policy)
The Court knocked out this allegation because Amazon’s Price Parity Provision and Fair Pricing Policy at issue clearly states that “[s]ellers are responsible for setting their own prices.” Id. at *8. The Court explained that “based on what the policy says, sellers are free to set prices within the marketplace … the only limit is that they cannot set a price that is significantly higher than recent prices offered on or off Amazon.” Id. Plaintiff argued that the factual allegations “are indistinguishable from those found to pass muster in the substantively identical private case against Amazon in federal court, citing Frame-Wilson v. Amazon, Inc., No. 2:20-CV-00424-RAJ, 2022 WL 741878, at *10 (W.D. Wash. Mar. 11, 2022) (“Frame-Wilson”).” The Court disagreed, noting that the allegations in the Frame Wilson Amended Complaint directly quote language from a policy allegedly stating that “any single product or multiple products packages must have a price that is equal to or lower than the price of the same item being sold by the seller on other sites or virtual marketplaces.” The Court contrasted that with the Amazon Fair Pricing which “makes no mention of setting a pricing floor.” District of Columbia v. Amazon, at *11. The Court, therefore held, that “the allegations in Count I do not satisfy the plausibility standard required to survive a motion to dismiss under Twombly and Iqbal.” Id.
Count II Allegation That Minimum Margin Agreement Was A Restraint of Trade
The Court knocked out Count II for failure to provide any facts in support of its conclusory allegations:
Although Plaintiff’s previous oral arguments and instant motion repeatedly assert that the First Amended Complaint is replete with “detailed factual allegations,” the Court could not find (1) the name of any TPS or FPS; (2) the name of any TPS or FPS sale item: (3) the price point for any TPS or PFS item, on either Defendant’s marketplace or another online marketplace; or (4) any language of warning from Defendant to a TPS or FPS mentioned in, or appended to, the complaint. Id. at *12.
The Court found Plaintiff’s effort fell short of the Twombly standard, in contrast to the Frame-Wilson Amended Complaint which provided numerous examples of the detailed factual allegations.
Counts III and IV (Monopolization)
Counts III and IV were both defeated by the Court’s finding, and Plaintiff’s acknowledgment, of competitive online marketplaces from strong corporate entities such as Walmart, Target and eBay. While Amazon had a dominant share,
“merely controlling a dominant share of the market does not satisfy pleading requirements for anti-trust actions, particularly in pandemic times when online delivery sales have increased. In any event, sellers are free to migrate to other online platforms as market dynamics continue to unfold. This possibility undercuts arguments that probable allegations satisfy the plausibility standard for pleading purposes. Id. at *15.
As to Amazon’s dangerous probability of “achieving its goal of monopoly power” the court noted that thirty to fifty percent of the market was beyond Amazon’s reach (Walmart, Target other online sellers) which “undercuts the plausible conclusion that Amazon is liable for monopolistic practices.” Id. at *16.
Finally the Court denied Plaintiff’s Motion for Leave to Amend. Id. at *16-17.
A Deeper Dive: A Preindictment Meeting With Defense Counsel Results in Better Law Enforcement and It’s the Right Thing To Do
If you have been following the price-fixing trials against the chicken industry executives, you know that after failing to convict any of the ten defendants in two previous trials, the Antitrust Division narrowed its case by dismissing five defendants. A reportedly unprecedented third trial ended the saga when the jury acquitted each defendant. See, Chicken Industry Executives Found Not Guilty of Price Fixing, Bob Van Voris, Bloomberg, July 7, 2022.
After the verdict, the government issued a statement: “Although we are disappointed in the verdict, we will continue to vigorously enforce the antitrust laws, especially when it comes to price-fixing schemes that affect core staples. We will not be deterred from continuing to vigilantly pursue cases to protect the American people and our markets.” This is how it should be. But win or lose, and certainly in this case, the government should reflect on what it did right and what it did wrong. One thing it did very wrong was the failure to engage with any defense counsel in preindictment meetings. None of the individuals indicted received a target letter informing them of the government’s decision to seek their indictment and thus had no opportunity to seek a preindictment meeting. Preindictment meetings provide the staff with the opportunity to listen to defense counsel argue, both factually and/or legally, why the government’s case does not meet the Principles of Federal Prosecution standards for indictment. Also, at the government’s discretion, a preindictment meeting may be an opportunity for the government to put some of its evidence on the table in an attempt to induce a cooperation agreement with the target. The defendants who ended up being put on trial three times before finally being acquitted (as well as the five defendants who the government dropped after the second hung jury), never had this opportunity. The Antitrust Division’s decision to proceed to trial without the benefit of a preindictment meeting was a mistake that I hope will not be repeated.
The Antitrust Division’s new policy on preindictment meetings is baffling and a pointless self-inflicted wound. In a July 21, 2021 speech (here), Assistant Attorney General Richard Powers warned that an individual about to be indicted may not receive notice via a target letter if the Division staff believes defense counsel has not been “interested in meaningful good-faith interactions.” While there have always been exceptions to sending a target letter based on the need for secrecy, it has, to my knowledge, never been the Antitrust Division’s policy to not issue a target letter based on what staff attorneys believe to be uncooperative conduct by defense counsel. This is too subjective a standard, improperly punishes an individual or corporation about to be indicted for the ‘sins’ of the defense attorney and is inconsistent with the Antitrust Division’s well-earned reputation for civility and fair play.
The importance of preindictment meetings (generally triggered when defense counsel receives a target letter indicating her client is seriously being considered for indictment), is more important now than ever. The Antitrust Division has taken an expansive view of per se violations, recently bringing its first ever wage-fixing and first ever no-poach cases. The Division has also publicly stated that it is considering bringing criminal Section 2 monopolization cases. Regardless of how the staff feels about a defense lawyer, the Department of Justice owes it to themselves and the taxpayer to listen to defense arguments in a preindictment meeting before committing the substantial resources to a criminal prosecution. Before securing an indictment is the time to listen to an experienced defense counsel (often a distinguished Antitrust Division alum) argue why your case stinks. The prosecutor is not obliged to agree, but a wise prosecutor will listen.
While under no obligation to notify a target prior to indictment, the government typically does so, only refraining in the rare case where, “notification…might jeopardize the investigation because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the end of justice.” JM 9-11.153-Notifcation of Targets. In his speech, Mr. Powers laid out a new basis upon which the Antitrust Division may decline to issue a target letter:
“Occasionally, we cannot delay our investigation for targets to be notified, and sometime situations arise where notification creates other risks we cannot bear. Otherwise, the Antitrust Division typically takes a generous approach, particularly when a subject and counsel have engaged productively and affirmatively with staff throughout the investigation. But this process is a two-way street. When a subject and counsel make clear they are not interested in meaningful, good-faith interactions—the kind that enhance the Division’s ability to reach a just result rather than serving as a distraction—the Division’s prosecutors are under no obligation to notify a target of its status. (emphasis added).
As the Justice Manual further provides, ‘[i]n investigations handled by the Antitrust Division, a target’s counsel is usually afforded an opportunity to meet with staff and the office or section chief regarding the recommendation being considered.’ But that is far from absolute. If the target and counsel have declined to engage throughout the investigation, or made apparent to staff that further engagement will not be productive, then the Division will not continue to spend its valuable time and resources on pointless meetings—and if we have decided not to notify the target of its status, of course there will not be an opportunity for a meeting.” (emphasis added).
The Justice Manual does not list “productive and affirmative” engagement by defense counsel with the staff as a prerequisite for issuing a target letter. This subjective standard could be interpreted [or intended?] as an attempt to chill vigorous representation by a defense attorney of her client. Below are a few additional thoughts on why I believe target letters and an opportunity for a preindictment meeting should be afforded to an individual and a corporation, unless doing so would threaten the integrity of the investigation.
Issuing a Target Letter And Affording a Preindictment Meeting Is The Right Thing To Do
1) Sending a target letter and granting a meeting are two different things. Even if the request for a preindictment meeting is denied, the target has been informed that indictment may be imminent. The target letter gives defense counsel an opportunity to prepare the “target” for the imminent negative publicity. Getting indicted is a traumatic event. It is important to remember that it is not the defense counsel who will be indicted—it is an individual or corporation, who at this point, is presumed to be innocent. An individual most likely will have a family who will also be severely impacted by the publicity of the indictment. A corporation will have shareholders and employees. Prior notice of indictment is an act of civility; warranted even if thought to be unearned. Mr. Powers speaks as though the Department of Justice is an ordinary litigant when he says, “But this process is a two-way street.” Prosecutors, especially when bringing criminal cases, are public servants obligated to do the right thing even if miffed at the way an attorney is defending their client.
2) It is in the prosecutor’s self-interest to issue a target letter and grant a meeting with defense counsel if one is requested. A target letter sharpens everyone’s perception of the evidence, and positions can change. Clients’ memories sometimes improve. Clients sometimes even change defense attorneys. New arguments and positions may be advanced. Previously stated defense arguments may sound different at this stage of the investigation. It is to the prosecutors’ advantage to learn what they can in these meetings, before trial, even understanding that defense counsel will likely not be putting all their cards on the table. The Division staff lawyers may sit stone silent in this meeting simply making notes of how to counter these facts/arguments at trial. The prosecutor may decide that, even though there is indictable evidence against a particular target, the chances of winning against more culpable individuals is greater if this person is not indicted. It may be beneficial to drop a prospective defendant from a multi-defendant case and perhaps put that person in the grand jury to help neutralize an expected defense. Or the prosecutor may choose to provide some feedback to a particular defendant which may possibly encourage a pre-indictment plea. And yes, the meeting may be a contentious waste of time. But the target letter and preindictment meeting are dynamic events with unpredictable outcomes. That one of those outcomes may be, or even is likely to be, a waste of time, is not sufficient reason to preclude all other possibilities.
3) Humility should also compel a prosecutor to sit through a “don’t indict my client” pitch meeting. Indicting an individual or a corporation is a tremendous responsibility and while every Antitrust Division prosecutor I have ever known has tried their best to make the right decision, no one is infallible. Antitrust cases are unique and complex—that is why there is an Antitrust Division enforcing the Sherman Act and not the US Attorney’s office. No prosecutor is so experienced and foresighted that he can’t learn something by listening to experienced defense counsel pitch the weaknesses in a case against their client. A boring or even contentious pitch meeting is the price to pay to take every measure to ensure that the momentous decision to indict is the correct one and is in the interests of justice.
“There is a principle which is a bar against all information, which is proof against all arguments, and which cannot fail to keep a man in everlasting ignorance – that principle is contempt prior to investigation.” William Paley [sometimes attributed to Hebert Spencer]. If the prosecution refuses to have a preindictment meeting, they will never know whether they would get what’s behind Door #1 (a waste of time) or Door #2 (a useful preview of some of the weaknesses in the case and/or strengths of the defense) or Door # 3 (a target with whom you share information who ultimately becomes a cooperating witness).
There is no dispute that target letters and preindictment meetings are not a matter of right. The perceived cooperation of defense counsel, however, should not be the basis for declining to give notice of indictment (target letter). Granting a pre-indictment meeting is a separate question, but one that should also be answered in the affirmative absent a legitimate need for secrecy. It will be rare that a prosecutor learns nothing from a preindictment meeting that may help her shape the upcoming indictment/trial. It is also in the long-term interest of the Antitrust Division to maintain its reputation as an institution that conducts itself with the highest level of fairness, decency and civility.
This article first was published as a Cartel Capers post of July 12, 2022, Don’t Be Chicken To Meet: The Case For Preindictment Meetings.
This feature includes excerpts from selected press releases issued by the Antitrust Division, USDOJ, the Federal Trade Commission and the California Attorney General’s Office. It does not include all press releases issued by those offices. This appears to be a truly transitional time in antitrust enforcement and reading the press releases can be very helpful to stay on top of changes.
Antitrust Division, US Department of Justice
Justice Department and National Labor Relations Board Announce Partnership to Protect Workers
Agencies Will Enhance Enforcement Efforts Through Greater Coordination and Information Sharing, Cross-Agency Training and Outreach
July 26, 2022
“The Justice Department’s Antitrust Division and the National Labor Relations Board (NLRB) signed a memorandum of understanding (MOU) today to strengthen the partnership between the two agencies to better protect competitive labor markets and ensure that workers are able to freely exercise their rights under the labor laws. By strengthening their partnership, the agencies also achieve the objectives of the President’s Executive Order on Promoting Competition in the American Economy just days after the Order’s one-year anniversary.”
Justice Department Files Lawsuit and Proposed Consent Decrees to End Long-Running Conspiracy to Suppress Worker Pay at Poultry Processing Plants and Address Deceptive Abuses Against Poultry Growers
Decree Provisions Would Stop the Exchange of Compensation Information, Ban President of Data Consulting Firm from Industry, Subject Settling Poultry Processors to 10-Year Antitrust Compliance Monitor; Decree Would also Prohibit Deceptive Conduct Towards Chicken Growers that Lowers Their Compensation
July 25, 2022
“The Department of Justice filed a civil antitrust lawsuit in the U.S. District Court for the District of Maryland against a data consulting firm and its president, as well as three poultry processors, to end a long-running conspiracy to exchange information about wages and benefits for poultry processing plant workers and collaborate with their competitors on compensation decisions in violation of the Sherman Act.”
July 11, 2022
“Today, the Justice Department recognized the first anniversary of the President’s Executive Order on Promoting Competition in the American Economy, and celebrated the Antitrust Division’s most productive year of interagency competition policy engagement in recent history. The Executive Order underscored that competition is a cornerstone of the American economy, and called for a whole-of-government response to “excessive market concentration threaten[ing] basic economic liberties [and] democratic accountability.”’
Justice Department Sues to Block Booz Allen Hamilton’s Proposed Acquisition of EverWatch
Acquisition Would Eliminate Competition Between the Only Two Competitors for Critical National Security Support Services
June 29, 2022
The Department of Justice filed a civil antitrust lawsuit today to block Booz Allen Hamilton Holding Corporation’s (Booz Allen) proposed acquisition of EverWatch Corp. (EverWatch), a subsidiary of EC Defense Holdings LLC. The complaint, filed in the U.S. District Court for the District of Maryland, alleges that the merger agreement threatens imminent competition for a government contract to provide operational modeling and simulation services to the National Security Agency (NSA). Unless enjoined, the transaction would eliminate competition for this defense contract, leaving NSA to face a monopoly bidder.
Federal Trade Commission
FTC Seeks to Block Virtual Reality Giant Meta’s Acquisition of Popular App Creator Within
Agency Alleges that Meta and CEO Mark Zuckerberg are Attempting Illegal Acquisition to Expand Virtual Reality Empire
July 27, 2022
“Instead of competing on the merits, Meta is trying to buy its way to the top,” said FTC Bureau of Competition Deputy Director John Newman. “Meta already owns a best-selling virtual reality fitness app, and it had the capabilities to compete even more closely with Within’s popular Supernatural app. But Meta chose to buy market position instead of earning it on the merits. This is an illegal acquisition, and we will pursue all appropriate relief.”
Federal Trade Commission, National Labor Relations Board Forge New Partnership to Protect Workers from Anticompetitive, Unfair, and Deceptive Practices
New Agreement Will Strengthen Collaboration Between the Two Agencies
July 19, 2022
The Federal Trade Commission is joining with the National Labor Relations Board (NLRB) in a new agreement that will bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair practices that harm workers. The new memorandum of understanding between the two agencies outlines ways in which the Commission and the Board will work together moving forward on key issues such as labor market concentration, one-sided contract terms, and labor developments in the “gig economy.”
July 11, 2022
“The Federal Trade Commission marked the one-year anniversary of a government-wide effort to implement President Biden’s Executive Order on Promoting Competition in the American Economy. Over the past year, the FTC has been working with agencies around the federal government and taking aggressive steps to bolster competition that is hobbled by consolidation, concentration, and other roadblocks, resulting in higher prices, lower wages, declining entrepreneurship, growing inequality, and a less vibrant democracy.”
California Department of Justice
July 31, 2022
“As wildfire season ramps up here in California, I want to be crystal clear: price gouging during a state of emergency is illegal,” said Attorney General Bonta. “California’s price gouging law prevents businesses from overcharging Californians for essential services and supplies during their moment of need. As Attorney General, I will use the full powers of my office to protect vulnerable Californians from those who would take advantage. I strongly encourage anyone who believes they have been the victim of price gouging to report it to my office at oag.ca.gov/report or to your local authorities.”
In Case You Missed It
Below are headlines from various news reports with a short excerpt from the article. The article is hyperlinked so you can read it in its entirety. Some articles may require a subscription.
Rumble’s antitrust lawsuit against Google can proceed, says judge
By Adi Robertson, The Verge, August 2, 2022
“A California judge says video service Rumble can proceed with the early stages of an antitrust suit against Google. Rumble sued Google in 2021, alleging that it favored its own YouTube video platform in search results and the Android operating system.”
A Conversation With California’s Chief Justice
By Soumya Karlamangla, NY Times, August 2, 2022
“Chief Justice Tani Cantil-Sakauye announced last week that she would step down in January after 12 years at the helm of the state’s Supreme Court. Cantil-Sakauye, a moderate, guided the court through severe budget cuts following the Great Recession and is known for fostering a culture of collaboration on the bench.”
How WR Grace Creates a Culture of Diversity, Equity and Inclusion
By Susan Galer Forbes, August 2, 2022
“When global manufacturing leader W.R. Grace made a commitment to diversity, equity, and inclusion (DEI) across its workforce of 4,500 employees in 50 locations worldwide, data visibility was the first priority. To be clear, the business goal was to bring historically underrepresented talent – women and people of color – into more leadership roles on a global scale. But core to the strategy was a holistic DEI approach to benchmark and track progress against accurate metrics.”
U.S. sues to stop Facebook from buying virtual reality firm Within
By Diane Batz, Reuters, July 27, 2022
“The FTC, in a request filed on Wednesday in federal court in San Francisco for a temporary restraining order and preliminary injunction, called Facebook a “global technology behemoth,” noting its ownership of popular apps including Instagram, Messenger and WhatsApp, and said its “campaign to conquer VR” began in 2014 when it acquired Oculus, a VR headset manufacturer.
Cargill, Sanderson, Wayne to Pay $85 Million in DOJ Settlement
July 25, 2022, Bloomberg Law
“Cargill Inc., Sanderson Farms Inc., and Wayne Farms LLC signed an agreement with the Justice Department to pay $84.8 million to resolve allegations that the chicken product makers violated antitrust law by improperly communicating about worker wages and benefits.”
Booz Allen, CACI, Mission Essential Settle No-Poach Lawsuit
July 28, Bloomberg Law
“Booz Allen Hamilton Inc., Mission Essential Personnel LLC, and CACI International Inc.—defense contractors performing intelligence work in England—settled a class action alleging the violation of antitrust rules through agreements not to hire one another’s workers.’
Justice Department Fails for Third Time to Convict Chicken Executives in Price-Fixing Trial
Justice Department’s third run at convicting poultry executives ends in a not-guilty verdict
By Patrick Thomas and Dave Michaels, Wall Street Journal, July 8, 2022
“Federal prosecutors failed for a third time to convict five chicken-company officials of allegedly conspiring to fix prices, dealing a blow to the Justice Department’s antitrust division and its efforts to rein in the meat industry. Jurors in a Denver federal court on Thursday evening acquitted all five defendants, who had been accused of illicitly coordinating what their companies would charge restaurant buyers.”