Antitrust and Unfair Competition Law
e-Briefs, News and Notes: February 2023
WELCOME to the FEBRUARY 2023 edition of E-Briefs, News and Notes.
This edition has a variety of content:
- In SECTION NEWS, we feature:
- Message from Dominique Alepin, Section Chair
- Event Details: Sixth Annual Celebrating Women in Competition Law in California on March 9, 2023
- E-BRIEFS features two intriguing cases. These cases include: a motion to dismiss granted without leave to amend in a case alleging a global supply restriction conspiracy in the petroleum industry; and the grant of a petition to set aside the DOJ’s Investigative Demand on the basis that it violated an earlier settlement. Also featured is a summary of FTC updates to size of transaction thresholds and filing fees for premerger notification filing fees.
- ENFORCEMENT AGENCY PRESS RELEASES highlight the enforcement activities of the Antitrust Division, DOJ, FTC, and California AG’s office. Reading the press release(s) is a quick way to keep on top of major developments.
- IN CASE YOU MISSED IT re-posts numerous articles and other matters of interest to antitrust and unfair competition lawyers. Curated by Bob Connolly.
Thanks to all the contributors to this edition. If you have any suggestions for improvement, or an interest in contributing to E-Briefs, please contact Editors Betsy Manifold (Manifold@whafh.com) and James Dallal (JDallal@cpmlegal.com).
SECTION NEWS
Message from the Section Chair
Dear Section Members:
Disproportionate attrition of female attorneys in the legal profession is hardly a new problem. As the 2019 ABA and ALM report, “Walking Out the Door,” noted, “entering associate classes have been comprised of approximately 45% women for several decades.” Although female lawyers now constitute the majority of associates, when it comes to positions of power (partnerships, general counsel, top government posts), representation of women is substantially lower. This issue is especially acute in the antitrust bar. The good news is that we are now aware of the problem, and many of us are making a strong push to fix it, even if progress is slower than we expected.
Having personally confronted many of the hurdles that drive women out the profession, I am proud to lead an organization that is leading efforts to fix these issues. But we can all do better. And I am personally pushing for the Section and California Lawyers Association to do more.
Creating programs like the upcoming “Celebrating Women in Competition Law in California” panel presentation and networking event is part of that push. Studies show that highlighting the achievements of women in their careers makes capable women significantly more likely to push to be leaders in their field, and role models are crucial in ensuring that women can envision themselves in leadership positions: “if I can see it, I can be it.” On March 9 in San Francisco, the Section will be celebrating the work and achievements of four female leaders in the antitrust field: Bonnie Lau (Partner, Morrison & Foerster LLP), Lin Chan (Partner, Lieff Cabraser Heimann & Bernstein), Elizabeth Jensen (Trial Attorney, USDOJ), and Leonor Velazquez Davila (Associate Director, Global Antitrust Compliance, Intel). In a conversation moderated by the Honorable Jacqueline Scott Corley, the four panelists will discuss their career paths, provide tips on how to navigate gender-based obstacles, and share proud career moments. This event has sold out in years past, so I encourage you to sign up as soon as you can.
Respectfully,
Dominique Alepin
2022-2023 Chair, Antitrust & UCL Section
Celebrating Women in Competition Law in California
March 9, 2023 in San Francisco, CA | FULL DETAILS | REGISTER HERE
Pack your bags and head to San Francisco on March 9, 2023 because the Sixth Annual “Celebrating Women in Competition Law in California” is back in town! Among our panel of exceptional female trailblazers of the competition bar are Bonnie Lau (Partner, Morrison & Foerster LLP), Lin Chan (Partner, Lieff Cabraser Heimann & Bernstein), Elizabeth Jensen (Trial Attorney, United States Department of Justice, Antitrust Division), and Leonor Velazquez Davila (Associate Director, Global Antitrust Compliance, Intel Corporation). Don’t miss out on their words of wisdom and register today! Learn more here.
E-Briefs
Complaint Barred By Various “Political” Doctrines
D’Augusta v. American Petroleum Institute, Case No. 22-cv-01979-JSW, 2023 WL 137474 (N.D. Cal. Jan. 9, 2023)
By Cheryl Johnson
Plaintiff gas consumers alleged an antitrust conspiracy between the United States, Saudi Arabia, Russia, and the Defendant American oil companies to raise gasoline prices. After initially heralding the reduced gas prices resulting from Russia and Saudi Arabia’s increased oil productions, ex-president Trump was alleged to have secretly met with the Defendants’ CEOs to discuss the resulting oil price war, after which the Defendants agreed among themselves, and with Saudi Arabia and Russia, to limit oil production. 2023 WL 137474, at *1. Judge Jeffrey White dismissed the complaint as barred by the political question doctrine, the act of state doctrine and the Noerr-Pennington doctrine. Id. at *5.
The political question doctrine bars adjudication of issues that the Constitution commits to the political branches or that involve foreign policy decisions of the Executive Branch. Id at *3. While Plaintiffs argued that there was an antitrust conspiracy of the American oil producers completely independent of any political maneuvers, the court nevertheless applied the doctrine. Id. at *4. The court cited Plaintiffs’ allegations of specific foreign policy decisions allegedly made by the Trump administration and Defendants’ efforts to persuade Trump “to convince his ‘friends’ Vladimir Putin of Russia and the Crown Price(sic) of Saudi Arabia to end their price war,” and facts showing Russia and Saudi Arabia as “indispensable members” of the conspiracy. Id. at **3-4.
The act of state doctrine bars or defers adjudication of politically sensitive disputes where other branches are better equipped to handle those disputes. Id. at* 4. Plaintiffs “direct challenge to the official acts of foreign nations to limit their oil production and demand that Defendants do the same” were held to involve acts of state beyond the scope of the court’s authority. Id. at *4
Additionally, the court found that the Noerr-Pennington doctrine which protects government petitioning barred Plaintiffs’ complaint. The court read the complaint as alleging that the Defendants were advocating to Trump “for a diplomatic solution to the global price war over petroleum products” which it deemed to be Constitutionally protected activity. Id. at *5
DOJ Blocked From Reopening Investigation into Realtors’ Association Policies
By Kari G. Ferver, Associate at Crowell & Moring LLP
In National Association of Realtors v. United States of America, No. 21-2406 (TJK), 2023 WL 387572 (Jan. 25, 2023), a District of Columbia federal court granted the National Association of Realtors’ (“NAR”) petition to set aside a Civil Investigative Demand (“CID”) from the Department of Justice’s (“DOJ”) Antitrust Division, on the grounds that the demand violated a past settlement agreement between the parties. While relating to an antitrust investigation, this decision is more of a lesson on the importance of contract law.
Background
This is not the DOJ’s first investigation of NAR policies. As explained in Judge Timothy Kelly’s opinion, the DOJ Antitrust Division opened an investigation into NAR in 2019. Specifically, the DOJ issued two CIDs requesting information on NAR’s “Participation Rule” and its “Clear Cooperation Policy.” NAR and the DOJ began negotiating a potential settlement related to these CIDs, but NAR disputed a clause stating that nothing in the judgment would preclude the DOJ’s ability to investigate NAR at a later date. Ultimately, the DOJ agreed in a “closing letter” to NAR that it had closed its investigation into these two specific policies and that NAR had no obligation to respond to the corresponding CIDs. The DOJ also filed a Complaint, Stipulation and Order, and Proposed Final Judgment with the court. The Proposed Final Judgment reserved the DOJ’s right to investigate and bring antitrust actions against NAR in the future.
NAR began changing its policies in accordance with the consent judgment, but as the Participation Rule and Clear Cooperation Policy were not a part of the filings, NAR did not change those particular policies. In January 2021, NAR contacted the Antitrust Division to approve its policy changes. Instead of assessing the changes, the DOJ attempted to renegotiate the rights reserved in the Proposed Final Judgment. It was unclear whether this renegotiation encompassed the parties’ settlement agreement, and so NAR refused to agree to any changes. The DOJ responded in July 2021 by reopening the investigation into NAR, issuing a new CID similar to the two previous CIDs, and withdrawing its Complaint and its consent to the Proposed Final Judgment. NAR, in turn, filed a petition to set aside or modify the CID that is the subject of the January 25th opinion. NAR challenged the CID on two grounds: (1) the new CID was barred by the parties’ 2020 settlement and (2) even if valid, the CID was unduly burdensome and overbroad.
Judge Kelly’s Analysis
Judge Kelly first took a step back and examined the parties’ settlement agreement, as NAR and the DOJ disputed its terms. Using traditional canons of contract interpretation, Judge Kelly determined that the consent judgment was a partially integrated written agreement, as opposed to a fully integrated writing. This was based on the fact that the judgment encompassed several written and oral commitments by both parties in exchange for consideration, and none of the filings included a merger or integration clause. NAR would not agree to the consent judgment without the DOJ’s closing letter reassuring NAR that it had no obligation to respond to the CIDs pending at that time. Thus, the closing letter was critical to the parties’ ability to reach a settlement. The letter was also consistent with the partially integrated consent judgment, and the DOJ’s own communications showed that the agency understood the settlement to include closure of the investigation.
With this characterization of the settlement in mind, Judge Kelly easily concluded that the new CID violated the parties’ agreement. The DOJ had committed to close its investigation on these two specific policies, and so the agency breached the agreement by reopening the investigation and serving a new CID. Judge Kelly rejected the DOJ’s attempt to characterize this as a new investigation, as the two policies at issue remained unchanged, and the new CID mirrored the CIDs issued previously. None of the other language in the letter or the Proposed Final Judgment, including the reservation of rights clause, changed the fact that the Antitrust Division could not unilaterally change the terms of the settlement agreement. Doing so would deprive NAR of the benefit for which it bargained.
Judge Kelly emphasized that his holding was limited to the following: “the government, in committing to close an investigation into these policies one year and then reopening it the next—when the only intervening change was that in presidential administrations—violated the parties’ agreement.” Id. at *5. He clarified that he was not barring the DOJ’s ability to investigate NAR or some future version of the Participation Rule or Clear Cooperation Policy. In this particular scenario, however, the government must be held to the terms of its contracts, “whether or not a new administration likes those agreements.” Id.
The FTC Updates Size of Transaction Thresholds and Filing Fees for Premerger Notification Filings
By Lee Berger and Travis West
On January 23, 2023, the Federal Trade Commission (“FTC”) announced updated size-of-transaction thresholds for premerger notification (Hart-Scott-Rodino or “HSR”) filings, as well as new HSR filing fees and new de minimis thresholds for interlocking officer and director prohibitions under Section 8 of the Clayton Act.
The HSR filing thresholds, which are revised annually based on the change in gross national product, trigger a premerger notification filing requirement with both the FTC and the Department of Justice’s (“DOJ”) Antitrust Division. For proposed mergers and acquisitions, the 2023 threshold will increase from $101 million to $111.4 million.
Separately, pursuant to the 2023 Consolidated Appropriations Act, the FTC announced the new filing fees for premerger notification filings. Before this announcement, parties to a transaction paid the following filing fees based on the size of the transaction:
| Transaction Value | Filing Fee |
| Greater than $101 million but less than $202 million | $45,000 |
| Greater than or equal to $202 million but less than $1,009.8 million | $125,000 |
| $1,009.8 million or greater | $280,000 |
Under the new act, however, the new filing fee structure has six categories and increases the fees substantially for the largest transactions:
New 2023 Thresholds and Filing Fees
| Transaction Value | Filing Fee |
| Greater than $111.4 million but less than $161.5 million | $30,000 |
| Not less than $161.5 million but less than $500 million | $100,000 |
| Not less than $500 million but less than $1 billion | $250,000 |
| Not less than $1 billion but less than $2 billion | $400,000 |
| Not less than $2 billion but less than $5 billion | $800,000 |
| $5 billion or more | $2.25 million |
Congress increased the fees to help the DOJ and the FTC staff more closely review transactions after the unprecedented number of prenotification filings in the past two years. Of note, Congress decreased fees for smaller transactions subject to the HSR Act.
The new de minimis thresholds for triggering Section 8’s bar on interlocking officers and directors are $45,257,000 for the minimum size of capital, surplus, and undivided profits for purposes of Section 8(a)(1) and $4,525,700 for the minimum amount of competitive sales for purposes of Section 8(a)(2)(A). The triggers for application of Section 8 of the Clayton Act are particularly important in light of the Department of Justice’s recent focus and enforcement actions on this issue.
The size-of-transaction threshold for transactions under Section 7A and the new filing fees will take effect on February 27, 2023. The thresholds for Section 8 became effective on January 20, 2023.
Agency Updates
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
To link to all Antitrust Division, DOJ press releases, go to: https://www.justice.gov/atr/press-releases. Highlights include the following:
Justice Department Withdraws Outdated Enforcement Policy Statements
Press Release, February 3, 2023
The Justice Department’s Antitrust Division announced the withdrawal of three outdated antitrust policy statements related to enforcement in healthcare markets: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011).
Justice Department Sues Google for Monopolizing Digital Advertising Technologies
Press Release, January 24, 2023
Through Serial Acquisitions and Anticompetitive Auction Manipulation, Google Subverted Competition in Internet Advertising Technologies
Today, the Justice Department, along with the Attorneys General of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia, filed a civil antitrust suit against Google for monopolizing multiple digital advertising technology products in violation of Sections 1 and 2 of the Sherman Act.
Federal Trade Commission
To link to all FTC press release, see https://www.ftc.gov/news-events/news/press-releases.
FTC Charges Supplement Marketer with Hijacking Ratings and Reviews on Amazon.com and Using Them to Deceive Consumers
As a result of FTC’s first case targeting review hijacking, The Bountiful Company will pay $600,000
Press Release, February 16, 2023
The Federal Trade Commission took action today against a marketer of vitamins and other supplements called The Bountiful Company (Bountiful) for abusing a feature of Amazon.com to deceive consumers into thinking that its newly introduced supplements had more product ratings and reviews, higher average ratings, and “#1 Best Seller” and “Amazon’s Choice” badges.
CALIFORNIA DEPARTMENT OF JUSTICE
To link to All California Department of Justice press releases, see https://oag.ca.gov/media/news.
Attorney General Bonta Secures Court Decision Against Los Angeles Retail Chain for Defrauding Customers
Press Release, February 1, 2023
OAKLAND – California Attorney General Rob Bonta today issued a statement on a judgment by the Los Angeles County Superior Court finding that Curacao, a retail store chain with 10 locations in Southern California, unlawfully profited from the chain’s largely Latino immigrant customer base. The court ruled that Curacao and its owner, Ron Azarkman, illegally sold insurance through unlicensed, unqualified salespeople and barred Curacao and Mr. Azarkman from future misconduct. Additionally, the Court imposed $7,970,175 in civil penalties against both the company and its owner for illegal sales of insurance products.
In Case You Missed It
Curated by Bob Connolly
Lauren Feiner, CNBC, February 14, 2023
“Christine Wilson, the sole remaining Republican on the Federal Trade Commission, announced Tuesday she plans to resign, citing what she said was Democratic Chair Lina Khan’s “disregard for the rule of law and due process.”’
CNBC Television (YouTube)
Lina Khan, FTC chair, joins [CNBC] ‘Squawk Box’ to discuss the FTC’s recent proposal, the Chamber of Commerce’s statements against the proposal and who the proposal impacts.
OSHA Trade Release, February 14, 2023
The U.S. Department of Labor’s Occupational Safety and Health Administration recently published an interim final rule establishing procedures and timeframes for handling employee retaliation complaints under the Criminal Antitrust Anti-Retaliation Act, enacted Dec. 23, 2020.
Robert Freedman, Legal Dive, February 13, 2023
A record-breaking 3,520 transactions went through antitrust review in fiscal year 2021, a 115% increase from 1,637 in fiscal 2020, a joint report from the Federal Trade Commission and the antitrust division of the Department of Justice says.
Sixty-five of these Hart-Scott-Rodino (HSR) reviews, named for the 1976 law that created them, went through a document-intensive second review process, and 32 resulted in an enforcement action, 18 from the FTC and 14 from DOJ.
Legal action also names investor Cerberus and seeks to nix $4B dividend payment.
Mark Hamstra, Feb 3, 2023 Supermarket News
A group of consumers have filed a federal antitrust lawsuit seeking to block the Kroger-Albertsons merger.
The suit, filed in the Northern California U.S. District Court in San Francisco, also accuses investment firm Cerberus Capital Management and other “major stockholders of Kroger and Albertsons” of seeking to eliminate Albertsons from the competitive landscape.
Judge denies agency’s request for injunction blocking Meta’s proposed acquisition of virtual-reality startup.
Dave Michaels and Jan Wolfe, Feb 1, 2023 Wall Street Journal
A federal judge declined to halt Meta Platforms Inc.’s acquisition of the virtual-reality startup Within Unlimited, delivering a setback to antitrust enforcers at the Federal Trade Commission seeking to block the deal, a person familiar with the ruling said.
By Mike Scarcella Reuters, January 31, 2023
The U.S. Justice Department on Monday asked a federal appeals court not to “extend” Major League Baseball’s longtime immunity from antitrust law to a dispute involving restrictions on the number of minor league teams that can be affiliated with professional clubs.
The DOJ submitted a friend-of-the-court filing to the 2nd U.S. Circuit Court of Appeals that cautioned against allowing MLB to wield its antitrust shield in the case pending at the New York-based court.
The Biden administration catches up with the EU as it looks to rein in big tech.
Diego Lasarte, QZ, January 24, 2023
It is poised to be a big year for antitrust legislation, as governments around the world attempt to rein in the influence of the so-called “big five” tech giants — Alphabet, Amazon, Apple, Meta, and Microsoft.