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Aug 21, 2024 | 
lexology.com | Robert Atkins |Joseph J. Bial |Rebecca Coccaro |Lina Dagnew |Andrew J. Ehrlich |Reuven Falik | +19 more
A federal district court in Texas ruled on the merits that the FTC does not have statutory authority to promulgate the Non-Compete Clause Rule and that the rule is arbitrary and capricious. As a consequence, the court set aside the rule under the Administrative Procedure Act and ordered that it “shall not be enforced or otherwise take effect.” The order is nationwide in scope and not party-specific. Two other challenges to the rule are pending in other district courts.
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Jul 24, 2024 | 
lexology.com | Robert Atkins |Joseph J. Bial |Rebecca Coccaro |Lina Dagnew |Andrew J. Ehrlich |Reuven Falik | +16 more
Current state of affairsTwo different federal district courts have now issued two different rulings in similar challenges to the same FTC Non-Compete Clause Rule. In the first, Ryan, et al. v. Federal Trade Commission, No. 24-cv-986 (N.D. Tex. July 3, 2024), the court granted plaintiffs’ motions for preliminary injunction and stayed the effective date of the rule pending a ruling on the merits. In the second, ATS Tree Services, LLC v.
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Jun 12, 2024 | 
lexology.com | Joseph J. Bial |Andrew Finch |Marta P. Kelly |Scott Sher |Joshua Soven |Aidan Synnott | +1 more
In a recent hospital merger challenge brought by the FTC, defendants successfully asserted a version of the “failing firm” defense to avoid a preliminary injunction. Even though the FTC lost, the court’s evaluation of the defense was generally in line with the Merger Guidelines. However, the court’s reasoning suggests that in some circumstances defendants may assert the failing firm defense successfully without having to adhere rigidly to each and every purported element stated in the guidelines.
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May 28, 2024 | 
lexology.com | Joseph J. Bial |Andrew Finch |Jessica Phillips |Jacqueline P. Rubin |Scott Sher |Joshua Soven | +2 more
The U.S. federal antitrust agencies are seeking public comment from consumers, workers. suppliers, businesses, advocacy organizations, trade and professional associations, and others on “serial acquisitions and roll-up strategies” and may use information received to inform “enforcement priorities and future actions.” Comments are due by July 22, 2024.
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May 24, 2024 | 
lexology.com | H. Christopher Boehning |Walter Brown |Geoffrey R. Chepiga |Andrew J. Ehrlich |Andrew Gordon |Gregory F. Laufer | +2 more
On May 16, 2024, the Supreme Court unanimously held in Smith v. Spizzirri, No. 22-1218, 601 U.S. __ (May 16, 2024), that the Federal Arbitration Act (FAA) requires district courts to stay litigation subject to a potential arbitration, rather than dismiss such claims. The decision requires district courts to retain jurisdiction over a matter that is subject to arbitration, which has important implications for which court will ultimately supervise and/or confirm or vacate an arbitration award.
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May 2, 2024 | 
lexology.com | Joseph J. Bial |Meredith R. Dearborn |Andrew Finch |Jacqueline P. Rubin |Scott Sher |Joshua Soven | +5 more
The FTC recently sued to block Tapestry’s proposed acquisition of Capri, alleging that the effect of the combination of the companies’ handbag brands may be to substantially lessen competition. The complaint relies heavily on the December 2023 FTC-DOJ Merger Guidelines and presents one of the first opportunities for a federal court to weigh in on the validity of several theories of harm described in those guidelines.
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Apr 24, 2024 | 
lexology.com | Robert Atkins |Joseph J. Bial |Rebecca Coccaro |Andrew Finch |Jarrett Hoffman |Brad S. Karp | +16 more
The FTC’s final non-compete clause rule would ban all new and nearly all existing employer-worker non-competes. The ban would go into effect 120 days after publication in the Federal Register. The final rule is only slightly narrower in scope than the initial proposed rule. The final rule does not ban existing non-compete agreements with “senior executives,” and it retains and expands upon an exemption for non-compete agreements related to sale of a business.
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Sep 26, 2023 | 
lexology.com | Andrew Finch |Katherine B. Forrest |Jacqueline P. Rubin |Scott Sher |Joshua Soven |Aidan Synnott | +2 more
Late last week, the Federal Trade Commission (FTC) sued entities affiliated with private equity firm Welsh, Carson, Anderson & Stowe (Welsh Carson), along with Welsh Carson’s partially owned portfolio company U.S. Anesthesiology Partners, Inc. (USAP), for allegedly pursuing an illegal “roll up strategy” to consolidate anesthesia practices in Houston, Dallas and other parts of Texas.
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Sep 11, 2023 | 
lexblog.com | Scott Sher |Aidan Synnott |Brette Tannenbaum |Michael F. Vogel
The Antitrust Division of the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) recently released a draft overhaul of their merger guidelines. The merger guidelines are intended to describe how the agencies evaluate mergers and reach decisions on which deals to challenge. In an earlier client memorandum, we discussed how the proposed guidelines have the potential to impact merger review generally, including exit situations involving strategic acquirers.
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Aug 24, 2023 | 
lexology.com | Katherine B. Forrest |Jacqueline P. Rubin |Scott Sher |Joshua Soven |Aidan Synnott |Brette Tannenbaum
On August 21, 2023, the Department of Justice (DOJ) announced DPAs with Teva Pharmaceuticals USA, Inc. and Glenmark Pharmaceuticals Inc., USA to resolve criminal price fixing, bid rigging and customer allocation charges. In general, DPAs are a middle ground between non-prosecution or leniency on the one hand and full criminal trial and prospect of conviction on the other. In a DPA, the defendant will typically admit to wrongdoing and pay a penalty, but will be able to avoid a conviction.
