Competition Corner

Our latest episode, “Don’t Nickle and Dime Compliance: Antitrust and Consumer Protection Risks in Finance,” features Antitrust Practice Co-Chair Eva Cole and Partner Dana Cook-Milligan chat about enforcement and litigation risks in the financial services sectors. They explore best practices that firms should follow in the wake of volatility and uncertainty in the banking sector.

On April 14, 2023, the Supreme Court issued a unanimous decision in Axon Enterprise, Inc. v. Federal Trade Commission holding that federal district courts have jurisdiction to hear constitutional challenges to the Federal Trade Commission and Securities and Exchange Commission’s administrative proceedings in the first instance. The Court’s decision will provide parties accused of wrongful conduct by independent agencies with new avenues to more quickly raise constitutional challenges to enforcement actions.

On June 14, 2022, the Senate passed a bill designed to give greater enforcement power to state attorneys general who bring suit under federal antitrust law. The State Antitrust Enforcement Venue Act passed the Senate by unanimous consent and now heads to a vote in the House, where it has already cleared committee. If passed, it will mark the first successful step in a broader bipartisan effort by lawmakers to introduce antitrust reform legislation aimed at regulating large technology companies.

On November 16, 2021, Jonathan Kanter was confirmed as the new Assistant Attorney General of the Department of Justice Antitrust Division after a bipartisan Senate voted 68-29 in favor of the appointment.  His appointment is yet another signal that the Biden administration will aggressively enforce antitrust laws and aligns with President Biden’s July 9, 2021 “Executive Order on Promoting Competition in the American Economy.”

In a speech last week, EU competition commissioner Margaret Vestager announced that the European Commission is planning to conduct a series of dawn raids in the near future.

The “State Antitrust Enforcement Venue Act of 2021,” a bill designed to bolster states’ ability to enforce federal antitrust laws, has recently been introduced in both houses of Congress. 

On May 25, the Attorney General for the District of Columbia filed a complaint in the District’s Superior Court against Amazon.com, Inc., targeting the Most Favored Nation clauses agreed to as part of the contracts between Amazon and at least some sellers that use Amazon’s platform.

As is now becoming customary of Federal Trade Commission chairs with a change in administration, FTC Chairman Joseph J. Simons announced his resignation from the Commission early this week.

The Department of Justice issued new guidance last week on the use of arbitration in Antitrust Division matters. The Division’s guidance comes in the wake of its use of arbitration for the first time in United States v. Novelis Inc. and Aleris Corporation.

Companies that engage in competitive bidding for government contracts should take note: the U.S. Department of Justice has announced the addition of 11 new partner offices to its “Procurement Collusion Strike Force,” bringing the total number of national agencies and offices participating in the interagency partnership to 29.  

In recent remarks at the University of Michigan Law School, Deputy Assistant Attorney General Michael Murray announced that the Department of Justice is ramping up its focus on antitrust enforcement in the financial services sector.

The U.S. Department of Justice’s Antitrust Division is reorganizing its civil enforcement program with the goal of improving enforcement of judgments and consent decrees, prioritizing civil non-merger enforcement, and creating deeper expertise within the various sections. The Antitrust Division announced on August 20, 2020, that it had created the Office of Decree Enforcement and Compliance, and a Civil Conduct Task Force.

Hong Kong’s Competition Commission and the Securities and Futures Commission (SFC) recently entered into a memorandum of understanding (MoU) to coordinate their efforts to combat anti-competitive conduct in the financial market. 

he National Assembly of the Republic of Korea recently passed an amendment to the Monopoly Regulation and Fair Trade Act (MRFTA) meant to improve due process protections for companies under investigation by the Korea Fair Trade Commission (KFTC).

What are dawn raids and how can companies and the law firms representing them prepare? In this episode of Winston & Strawn’s Competition Corner Podcast, Antitrust Partner Jeff Amato turn to the cartel context and discuss dawn raids.

In the face of the challenges brought by the COVID-19 pandemic, many businesses are questioning whether they are able to collaborate with competitors in ways that, under normal conditions, might risk violating prohibitions on anti-competitive behaviour.

Recognizing that the fight against the COVID-19 pandemic will “require unprecedented cooperation,” the U.S. Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division (collectively, “the agencies”) provided new antitrust guidance and announced an expedited seven-day advisory opinion procedure for business collaborations responding to the coronavirus crisis, in a joint statement issued on March 24, 2020.

After ending her presidential campaign, Senator Amy Klobuchar was back on the Senate floor to introduce another new antitrust bill—this one called the Anticompetitive Exclusionary Conduct Prevention Act—which aims to amend the over-century-old Clayton Antitrust Act in order to “reinvigorate” antitrust enforcement across the economy and (apparently) specifically intended to target industries like pharmaceuticals and telecommunications that—according to Klobuchar—are riddled with players that have grown too “big”.

As federal and state antitrust enforcers ramp up their investigations into the technology sector and the legal implications of its use of aggregated customer data, recent developments suggest enforcers may be broadening their data-related scrutiny beyond top technology companies to other industries.

In a recent speech, Makan Delrahim, Assistant Attorney General for the Antitrust Division of the Department of Justice announced that he has directed the Division to review its International Guidelines to, among other things, ensure that they “adequately reflect the importance of comity” with international enforcers, particularly with respect to remedies.