Antitrust and Unfair Competition Law

Competition: Fall 2019, Vol 29, No. 2


Elizabeth C. Pritzker
Pritzker Levine LLP
Oakland, CA

Antitrust, Unfair Competition and Privacy‚ÄĒIn Labor and Employment

For the third year in a row, the Antitrust, Unfair Competition and Privacy Section has elected to present a topically-themed edition of Competition. This year’s theme centers on labor and employment and the ways in which they intersect with antitrust enforcement, unfair competition, and privacy. As an attorney who does not regularly practice in the employment space, it has been my great privilege to learn from this edition’s team of authors‚ÄĒall of whom provide unique perspectives on a range of topics surrounding our core theme. I am sure you will find, as I did, that the articles that follow offer helpful and informative insights on these issues.

Our first article by Jason Hartley and Fatima Brizuela addresses the issue of "no poach" labor agreement in the franchise context and discusses, in particular, the complexities of litigating a no poach class claim in the courts.

In their article, Daniel Bitton, David Pearl and Patrick Shaw consider the ride-hailing industry, and the gig economy more generally, and the extent to which antitrust principles apply, or should apply, to pricing algorithms employed by gig economy companies. They argue that a rule of reason antitrust analysis (as opposed to a per se rule) is necessary to enable antitrust enforcers to consider the pro-competitive industry and consumer advantages, and potentially greater worker flexibility, that can be derived from pricing algorithms like those used by Uber and Lyft.

Next, Caroline Corbitt tackles the question of whether worker wages should be considered by antitrust enforcers as they undertake merger and consolidation review. Her article provides a survey and thoughtful analysis of the recent scholarship and debate on the issue of whether, and if, antitrust law can address rising income inequality and falling wages in the United States.

Robert Connolly and Kimberly Justice, in their article, discuss the current options for being a whistleblower for criminal antitrust cartels and the anti-retaliation protections that may exist for whistleblowers in this context. They include a proposal for antitrust whistleblower reform that they believe would further the goal of antitrust enforcement, by creating criminal cartel whistleblowing opportunities similar to those now offered by the Securities and Exchange Commission.

Economists Daniel Rasher and Andrew Schwarz invite us into the specialized arena of sport-labor economics. Their article explores, from a labor economics standpoint, the stated pro-competitive objectives of professional, amateur and college sports leagues; the extent to which those objectives impact or drive consumer demand; and the efficacy of rules that limit player revenue sharing, provide salary caps, or limit the ability of college athletes with athletic scholarships to receive additional compensation, to achieve the desired competitive balance.

An article by Robert Milligan, Daniel Hart, and Sierra Chin-Liu looks at the pervasive use of social media by Americans‚ÄĒboth on and off the job‚ÄĒand the ways in which 26 states have enacted social media privacy laws to balance employees’ rights to personal privacy, on the one hand, with the needs of companies, on the other, to protect their intellectual property, comply with regulatory reporting mandates, or maintain appropriate data management practices. The article ends with a chart that summarizes the key features of each state’s social media law‚ÄĒproviding a handy reference tool for anyone interested in this issue.

Next, we are fortunate to have as contributors two experts on the recently enacted California Consumer Privacy Act (CCPA), which goes into effect on January 1, 2020. In their article, Lydia de la Torre and Lauren Kitces give an informative analysis of the CCPA’s regulatory framework, and discuss how the CCPA will impact employers’ privacy obligations under California law. The authors also identify steps employers should take to minimize regulatory risks under the new law.

The issue concludes with an article by Bradford Newman, in which he addresses the question of how to protect corporate intellectual property from misappropriation by former employees in California‚ÄĒa state with a long-standing public policy of encouraging employee mobility. His article lays out some of the steps companies may wish to consider using to protect their valuable trade secrets when employees leave, and explains a very recent but important change in the law regarding the enforceability of employee non-solicitation agreements.

This edition of Competition would not have been possible without the many individuals who lent their time and talent to the terrific range of articles being published here. Additional (and greatly appreciated) editorial assistance and cite-checking was provided by members of the Publications and Privacy Committees. I thank each and every one of you.

This issue of Competition goes to press at the time of our 29th Annual Golden State Institute and Antitrust Lawyer of the Year Dinner, which is being held on November 14, 2019 at the Julia Morgan Ballroom in San Francisco. The Section is especially pleased to honor Penelope A. Preovolos as the 2019 Antitrust Lawyer of the Year. We acknowledge and thank our event sponsors listed at the end of this publication.

Finally, on behalf of the Executive Committee, I would especially like to thank our outgoing Section Chair, Lee Berger, for his extraordinary leadership over the past year!

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