Competition Corner

On July 31, 2024, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly hosted the first public meeting of the “Strike Force on Unfair and Illegal Pricing.” This initiative was launched by President Biden in March 2024 where he emphasized the readiness of the DOJ and FTC to enforce the law in response to “illegal pricing practices that are fraudulent or unfair or deceptive or anticompetitive.”

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.

In the age of big data and artificial intelligence, businesses are increasingly using algorithms to make important business decisions. This trend raises antitrust concerns that companies need to be aware of. 

The collection, monetization, analysis, and use of consumer data have become ubiquitous aspects of modern business in the digital age. Companies, big and small, rely on consumer data to develop targeted advertising campaigns, enhance customer experiences, and create innovative products and services. However, the increasing reliance on consumer data also presents significant and growing antitrust risks for companies operating in the digital sphere.

“Most Favored Nation” provisions have increasingly drawn the attention of both government enforcement agencies and the business community. Notably, recent litigation involving the use of MFN provisions by Valve Corporation in connection with its popular PC-gaming platform, Steam, has spotlighted this increased government scrutiny. Additionally, a number of lawsuits targeting the use of MFN provisions by technology giants like Amazon and Apple indicate that the government is taking a closer look at the use of these provisions. While most businesses have nothing to fear from contracts containing MFN provisions, companies should be aware that there are certain circumstances that may give rise to antitrust scrutiny.

As discussed in a prior briefing, Deputy Attorney General (DAG) Lisa Monaco recently announced that the Department of Justice (DOJ) has adopted major changes to its policies regarding corporate criminal investigations and resolutions.

There has recently been a heightened focus on antitrust enforcement as the Biden administration has signaled its intent to vigorously enforce the antitrust laws, including through its appointment of Lina Khan to the Federal Trade Commission and its proposed increases in the budgets of the FTC and Antitrust Division.

On December 25, 2020, the Japan Fair Trade Commission (JFTC) implemented new procedures to protect confidential communications between an enterprise and its attorney from disclosure in administrative investigations of hard-core cartels. While this may appear to be the adoption of an attorney-client privilege in Japan, the newly announced protection is notably different from the privilege in the United States in several respects.

A federal judge recently dismissed a complaint by two reporters alleging, among other things, that the Hollywood Foreign Press Association (HFPA)—the trade association responsible for the Golden Globe Awards—had illegally denied them membership and its associated benefits, i.e., access to celebrities.

In this episode of Winston & Strawn’s Competition Corner Podcast, Attorneys Molly Donovan and Jeff Amato discuss the general legal framework of price-gouging prohibitions that have been triggered by the ongoing crisis. They provide best practice tips for companies to minimize liability including legitimate justifications for increasing prices during an emergency.

In recent remarks, Deputy Assistant Attorney General Richard Powers revealed that the DOJ Antitrust Division has yet to find a corporate defendant whose compliance program fits the Division’s “gold standard.”

While the antitrust laws have long protected a merchant’s freedom to charge a price as high as the market will bear so long as it is set unilaterally, price-gouging laws curtail that freedom when a state of emergency has been declared. At both the state and federal level, COVID-19 has given rise to a substantial new focus on pricing practices in an effort to combat price gouging on a broad range of products, including essential supplies like hand sanitizer, food products, and personal protective equipment.

Since its enactment in 2004, Japan’s Whistleblower Protection Act has been criticized for being “toothless” and unable to adequately protect whistleblowers. On June 8, 2020, a long-awaited amendment was finally passed, providing greater legal protection for whistleblowers and strengthening corporate compliance requirements. The Whistleblower Protection Act applies to some antitrust violations (such as cartel and monopolization conducts) as well as other corporate misconduct that is subject to criminal punishment.

On June 1, 2020, the Criminal Division of the Department of Justice released an updated version of its Evaluation of Corporate Compliance Programs (2020 Guidance). The DOJ’s guidance sets for questions that prosecutors ask when evaluating corporate compliance programs in connection with criminal investigations.

Following the recent overhaul of Japan’s leniency program, the Japan Fair Trade Commission has now released a set of proposed rules and guidelines changing the way confidential communications between attorneys and clients are treated – now providing some “privilege-like” protections, similar to the attorney-client privilege in the U.S., to companies under investigation for conduct that falls within the purview of Japan’s leniency system.

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.

How does the coronavirus (COVID-19) crisis increase antitrust risk? In this episode of Winston & Strawn’s Competition Corner Podcast, Partner Eva Cole discuss the challenges companies are facing as the virus impacts supply chains, and the steps they should take to mitigate their antitrust risk.

In-house compliance teams should be on alert as the coronavirus (COVID-19) continues to spread. It is often during times of perceived crises or disasters that competitors end up discussing subjects that can be risky from an antitrust perspective (e.g., procurement costs and selling prices).

More courts are declining to apply the per se rule to so-called “no-poach” or “no-hire” arrangements, at least at the pleading stage. In the franchise context, the recent decision involving Jiffy Lube in Fuentes v. Royal Dutch Shell PLC, is the latest data point.