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THE LATEST: FTC’s New “Technology Task Force” Has Broad Mandate Including Review of Consummated Transactions

The US Federal Trade Commission’s (FTC) Bureau of Competition announced the launch of a new Technology Task Force that will investigate anticompetitive conduct, review past transactions, as well as contribute to pending merger reviews. The FTC’s investigation of consummated transactions will not be limited to large transactions that meet the HSR filing thresholds, but will also include so-called “non-reportable” transactions. The launch of this task force along with the ongoing FTC Hearings on Competition and Consumer Protection in the 21st Century is further evidence of US antitrust enforcers’ increasing focus on the technology sector. WHAT HAPPENED: On February 26, the FTC’s Bureau of Competition announced the creation of a Technology Task Force dedicated to monitoring competition in US technology markets. The mandate is expansive allowing for investigations of anticompetitive conduct, mergers and industry practices. Importantly, the task force is not only...

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THE LATEST: Online Retailer Pleads Guilty in Conspiracy Effectuated Through Social Media

Azim Makanojiya founded Zaappaaz Inc. as a nineteen-year-old university student and quickly turned it into a multi-million dollar business. WHAT HAPPENED: On Tuesday, August 7, online retailer Zaappaaz Inc. and its twenty-nine-year-old president and founder, Azim Makanojiya, agreed to plead guilty for conspiring to fix the prices of “customized promotional products” such as silicone wristbands and lanyards. According to an Information filed in the United States District Court for the Southern District of Texas, the company  “engaged in a conspiracy with other persons and entities engaged in the sale of customized promotional products,” which was carried out in part “via text and online messaging platforms.”  The alleged conspirators reportedly used social media platforms Facebook, Skype and WhatsApp to coordinate their price-fixing efforts. Acting Assistant Attorney General Andrew Finch of the Department of Justice’s Antitrust Division explained the...

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Bag Fee Case Highlights Antitrust Risk Of Public Statements

For publicly traded companies, earnings calls are routine business events, as are press releases, speeches, investor conferences and trade association meetings. However, in the world of antitrust law, words uttered in these situations can provide fodder for plaintiffs to claim that instead of providing information for investors and the public, the communication’s purpose was to invite competitors to unlawfully collude. In the past several years, allegations that competitors used public statements to carry out a price-fixing agreement have been a common thread in antitrust class actions and multidistrict litigations. Recently, a federal district court granted summary judgment in an antitrust case based on earnings calls in the airline industry. While the defendants ultimately prevailed, the case stands as a reminder to publicly traded companies to be mindful of antitrust considerations in earnings calls and other public communications. Read the full article....

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THE LATEST: Employee “No-Poaching” Agreements Remain in the Antitrust Crosshairs

There have been a series of investigations, class action suits and high value settlements involving agreements not to solicit employees. In addition, the Department of Justice (DOJ) Antitrust Division made a splash a few months ago when it announced that it would criminally investigate and prosecute employers that engage in certain “naked” no-poach or wage-fixing agreements. WHAT HAPPENED: Employees filed a civil class action against the Carl’s Jr. hamburger chain because of a no-hire provision in its franchisee agreements. The plaintiffs allege that Carl Karcher Enterprises (CKE), the franchisor, includes the no-hire provisions in its standard agreement to prevent its restaurants from hiring each other’s shift leaders. According to the complaint, the clause appears in the same part of the agreement that also prevents franchisees from competing for each other’s customers. WHAT THIS MEANS: The plaintiffs’ bar continues to view employee no-hire/non-solicitation...

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UK Competition Regulator Issues Guidance on How Businesses Can Comply With Competition Laws

by Andrea L. Hamilton and David Henry The UK Office of Fair Trading (OFT) has issued an overview of competition law and steps that companies can take to comply with competition law.  This advice was issued in response to the results of a survey carried out on behalf of the OFT, in which a sizable minority of the 2,000 businesses questioned claimed that they have not taken action to ensure compliance with competition law.  The OFT's advice includes a four-step plan to achieving competition law compliance, and is accompanied by a short film depicting a dawn raid. Highlights of the OFT's written advice include the following: Members of the Board and senior management should take responsibility for ensuring that firms do not operate anti-competitive practices Managers should monitor work processes, including how employees interact with competitors, if they have access to rivals' price or business plans, and whether the company has agreements with...

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