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Government Amicus Efforts Show Antitrust Policy Via Advocacy

Under the administration of President Donald Trump, the US Department of Justice's Antitrust Division has significantly ramped up its private litigation amicus program. The Antitrust Division has filed an increasing number of amicus briefs and statements of interest at the appellate and district court levels in an effort to influence the development of antitrust law. In this articles, featured in Law 360, our authors explore how analysis of this advocacy may give us the shape of antitrust policy. Access Full Article

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THE LATEST: DOJ Distinguishes ‘No-Poach’ Agreements

WHAT HAPPENED: The Department of Justice filed a Statement of Interest in three related cases in the Eastern District of Washington yesterday dealing with alleged “no-poach” (or non-solicitation) agreements between franchisors like Carl’s Jr, Auntie Anne’s and Arby’s and their franchisees. In the statement, the DOJ distinguished between “naked” no-poach agreements between competitors and the kinds of no-poach agreements in the franchise context that are typically vertical restraints between the parent company and the individual franchisee. According to the DOJ, naked no-poach agreements should be analyzed as per se, or presumptively anticompetitive and illegal under Section 1 of the Sherman Act, while most vertical restraints should be analyzed under the rule of reason which requires some balancing of potential harms and benefits. The statement did, however, distinguish two scenarios where franchise agreements could still merit per se In a situation where the...

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