It has become common for defendants indicted on criminal antitrust charges to argue that the use of the per se rule in their trial is unconstitutional. The United States, however, has beaten back each attack with ample precedent from the relevant court of appeals fortified with long standing Supreme Court precedent (i.e., Trenton Potteries and…
I have no expertise in predicting whether the Supreme Court will grant certiorari on any given petition. But I am hopeful that the high court will do so on the issue of whether the application of the per se rule in a criminal antitrust case is unconstitutional. I have seen a couple of items recently…
With 2021 coming to a close, a look back at antitrust legislation introduced in Congress over the last year will provide a sense of what new antitrust laws could come in 2022. More than a dozen bills are currently pending in Congress that could impact the future of antitrust law. Bipartisan support for strengthening the…
On November 29, 2021 in U.S. v. Neeraj Jindal and John Rodgers, Civil Action No. 4:20-CR-00358A (N.D. Texas), District Court Judge Amos L. Mazzant rejected defendants’ motion to dismiss the indictment on various grounds, including challenges to the per se rule. Among other arguments, defendants argued that “wage-fixing” was not covered by the Sherman Act…
In an October 16, 2016 FTC/DOJ press release: FTC and DOJ Release Guidance for Human Resource Professionals on How Antitrust Law Applies to Employee Hiring and Compensation the Antitrust Division first announced: “Going forward, the Justice Department intends to criminally investigate naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between…
At an October 1, 2021 in-person conference (Fordham’s 48th Annual Conference on International Antitrust Law and Policy) Acting Assistant Attorney General Richard A. Powers of the Antitrust Division spoke about the history of and Antitrust Division’s commitment to enforcing the antitrust laws, including criminal enforcement, in labor markets: “If it was important for enforcers to…
The Supreme Court’s decision in Nat’l Collegiate Athletic Ass’n v. Alston, Nos. 20-512 and 20-520, 2021 WL 2519036, (U.S. June 21, 2021) is a boost for the Antitrust Division’s commitment to prosecute what it calls naked “wage fixing” and “no poach” agreements. In the prosecutions it has brought to date (still in the early stages)…
Congratulations to Senator Chuck Grassley and Patrick Leahy for the passage in the House of Representatives of their bipartisan legislation that has already passed the Senate that aims to protect whistleblowers who come forward with information on criminal antitrust violations. In a December 8, 2020 Press Release Senator Grassley said, “The Criminal Antitrust Anti-Retaliation Act encourages and…
As tributes pour in for U.S. Supreme Court Justice Ruth Bader Ginsburg following news of her passing on September 18, the jurist is being remembered for her efforts to support women’s rights. This post is intended to provide a look back at Ginsburg’s contributions to antitrust law during her time on the High Court from…
The U.S. Department of Justice Antitrust Division has issued more business review letters in 2020 than in any year since 2002. Recent years have averaged only one letter. So why is there this sudden interest in a statement of the Antitrust Division’s enforcement intentions with respect to proposed business conduct? Concerns about how the Antitrust…
