“Three top U.S. law firms, Wilson Sonsini Goodrich & Rosati, Gibson, Dunn & Crutcher, and Latham & Watkins, announced Monday they hired antitrust partners, signaling growing demand as regulators more closely scrutinize potential anticompetitive behavior,” reports Rebekah Mintzer in Bloomberg Law’s The United States Law Week.

“The four new hires have government antitrust enforcement experience that could be useful for clients facing an anticipated growth in scrutiny under the Biden administration and public debate about “breaking up” Big Tech and other industries.”

“According to data from Decipher, which performs due diligence for law firm hires, between November 2020 and January 2021 there have been 80% more antitrust lateral moves announced by Big Law compared to an average of the same period from the previous three years.”

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“Even for a company as big as Anthem Inc., the nation’s largest marketer of Blue Cross Blue Shield insurance, paying a half-billion-dollar settlement might seem like a painful way to resolve litigation,” reports Greg Andrews and Indianapolis Business Journal Staff in The Indiana Lawyer.

“But some investment analysts and health care observers say changes to Blue Cross Blue Shield rules that are stipulated in the settlement are so favorable to Indianapolis-based Anthem’s growth prospects that they view the deal as a huge win for the company.”

“The settlement, struck last fall and awaiting final approval in an Alabama federal court, resolves lawsuits filed in 2012 by insurance customers alleging the Chicago-based Blue Cross Blue Shield Association and the nation’s 36 Blue Cross and Blue Shield insurers violated antitrust laws through practices that limited competition and caused higher prices. The total settlement is $2.7 billion, with Anthem shouldering $594 million.”

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“Google faced its third major lawsuit in two months on Thursday as 38 U.S. states and territories accused the $1 trillion company of abusing its market power to try to make its search engine as dominant inside cars, TVs and speakers as it is in phones,” report Diane Bartz and Paresh Dave in Reuters’ U.S. Legal News.

“The lawsuit against the company’s parent Alphabet Inc follows years of complaints that it and other big tech firms including Facebook and Amazon use their massive market power to smite competitors in pursuit of profits.”

“The states asked the court to find Google guilty of breaking antitrust law and to order an end to any agreements or other behavior that it finds to be exclusionary. It raised the possibility of requiring asset sales but did not go into detail.”

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“The Texas attorney general’s office has named The Lanier Law Firm and the law firm Keller Lenkner to the litigation team that would face off against Alphabet’s Google in an expected antitrust lawsuit, the office said on Tuesday,” reports Diane Bartz in Reuters’ Technology News.

“Texas, backed by other states, has long been expected to follow the Justice Department’s lawsuit against Google but unrelated allegations against Attorney General Ken Paxton of bribery and abuse of office led to the departure of several lawyers who were key to the Google investigation.”

“With the new hires, the Texas lawsuit could come as early as this month, according to a source familiar with the office’s planning.”

Read the article.

“The federal government is suing to block Visa’s $5.3 billion acquisition of fintech startup Plaid, alleging the merger violates antitrust laws,” reports Clare Duffy of CNN Business in KTEN News.

“Visa in January announced plans to acquire Plaid, which makes digital infrastructure linking financial data from people’s bank accounts to the apps they use to manage their money such as Venmo, Coinbase and Expensify.”

“The US Justice Department alleged Thursday that Visa is a ‘monopolist in online debit transactions’ — and a new service in development by Plaid could pose legitimate competition to Visa’s business, according to the complaint in US District Court in Northern California.”

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“The U.S. sued Google on Tuesday, accusing the $1 trillion company of illegally using its market muscle to hobble rivals in the biggest challenge to the power and influence of Big Tech in decades,” reports Diane Bartz and David Shepardson in Reuters U.S. Legal News.

“The Justice Department lawsuit could lead to the break-up of an iconic company that has become all but synonymous with the internet and assumed a central role in the day-to-day lives of billions of people around the globe.”

“The lawsuit marks the first time the U.S. has cracked down on a major tech company since it sued Microsoft Corp for anti-competitive practices in 1998. A settlement left the company intact, though the government’s prior foray into Big Tech anti-trust – the 1974 case against AT&T – led to the breakup of the Bell System.”

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“Pilgrim’s Pride Corporation … announced that it has entered into a plea agreement with the United States Department of Justice Antitrust Division in respect to its investigation into the sales of broiler chicken products in the United States,” posted Pilgram’s Investor Relations.

“In the plea agreement, which is subject to the approval of the United States District Court of Colorado, Pilgrim’s and the Antitrust Division agreed to a fine of $110,524,140 for restraint of competition that affected three contracts for the sale of chicken products to one customer in the United States. The agreement does not recommend a monitor, any restitution or probationary period, and provides that the Antitrust Division will bring no further charges against Pilgrim’s in this matter, provided the company complies with the terms and provisions of the agreement. Pilgrim’s expects to record the fine as a miscellaneous expense in its financial statements in the third quarter of 2020.”

Read the article.

HP Inc. was awarded $439 million in damages against Quanta Storage Inc. and its U.S. subsidiary after a federal judge tripled a jury’s 2019 award for damages caused by a widespread scheme to inflate the price of optical disk drives, Bloomberg reports.

Sony, Panasonic and some other disk-drive makers settled with HP over the past decade. Only Taiwan-based Quanta chose to go to trial.

Quanta lost that trial in October when a Houston jury ordered Quanta to pay HP $176 million in damages. Now the federal judge in the case has tripled the damages award, as authorized under antitrust law, to $528 million before deducting $89 million in settlements paid by the other companies.

Read the Bloomberg article.

The former chief executive of Bumble Bee Foods LLC, Chris Lischewski, was found guilty of price-fixing on Tuesday, reports Bloomberg.

Prosecutors in a San Francisco court alleged that he conspired with colleagues and executives at rival companies on a “peace proposal” in order to boost prices and meet earnings targets set by Bumble Bee’s 2010 sale to Lion Capital, according to the report.

Bumble Bee pleaded guilty in 2017 to a felony charge of conspiring with competitors Starkist Co. and Chicken of the Sea Inc. to fix and raise prices of canned tuna in the U.S. from 2011 through at least late 2013.

Read the Reuters article.

Letitia James
Image by Thomas Good

Roughly 40 state attorneys general plan to take part in a New York-led antitrust investigation of Facebook, reflecting a broadening belief among the country’s top Democrats and Republicans that the tech giant may be undermining its social-networking rivals, reports The Washington Post.

New York Attorney General Letitia James first announced a wide-ranging probe with seven other states and the District of Columbia to explore whether, in James’s words at the time, Facebook has “endangered consumer data, reduced the quality of consumers’ choices, or increased the price of advertising,” writes the Post‘s Tony Romm.

Sources told the newspaper that New York continues to solicit support from other states, meaning the number could grow before it is formally announced.

Read the Post article.

A recent FTC enforcement action clarifies the requirements for non-compete clauses in M&A agreements to fulfill certain requirements to comply with antitrust and competition laws, and serves as a reminder that U.S. antitrust authorities are actively reviewing these provisions, according to Orrick’s Antitrust Watch blog.

In the case, the Federal Trade Commission took issue with the non-compete clause in a purchase and sale agreement, which would have prohibited one seller from competing with the natural gas pipeline for three years.

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Reuters is reporting that a group of U.S. state attorneys general are investigating Expedia Group and hotel chains like Hyatt Hotels Corp and Marriott International Inc for alleged violations of antitrust law in online travel booking, according to a court filing.

“The filing in a state court in Utah relates to a dispute originally filed in Texas in which Travelpass accused the hotel chains last year of agreeing with each other, and with online travel groups like Expedia, to not advertise to consumers who searched for another company’s hotel,” according to the report.

Court documents name the hotel chains Hyatt, Marriott, Caesars Entertainment Corp and Choice Hotels International Inc.

Read the Reuters article.

Jim Loveless has joined Orsinger, Nelson, Downing & Anderson, LLP, opening the firm’s Fort Worth office.

In a release, the firm said Loveless, a fourth-generation Texan from Fort Worth, has been board certified in family law by the Texas Board of Legal Specialization for 39 years. He has been recognized on the The Best Lawyers in America list since 1987 and the Texas Super Lawyers list since 2003.

Loveless is former president of the Texas Academy of Family Law Specialists, a Fellow – one of only 318 U.S. members – with the International Academy of Family Lawyers, and an emeritus member in the invitation-only group of 100 attorneys with the American College of Family Trial Lawyers. He is a graduate of South Texas College of Law and Texas Tech University.

Former IBM Vice President and Assistant General Counsel David Walsh has joined Hogan Lovells’ Boston office as senior counsel in the Antitrust, Competition and Economic Regulation practice.

“Hogan Lovells’ global regulatory practice has an exceptional reputation for being able to handle complicated cross-border matters seamlessly,” said Walsh. “I have worked with the team at Hogan Lovells for many years, and am looking forward to collaborating with them on a more regular basis.”

Walsh started his career with IBM and was a senior lawyer at IBM for over 36 years. Before joining Hogan Lovells, Walsh served in several senior legal leadership positions including, most recently, as the leader of IBM’s Global Business Services legal department, as well as leading IBM’s merger and acquisition and antitrust legal teams. He was also a member of IBM’s global senior leadership team. In addition, Walsh served as IBM’s head of global antitrust for many years, where his accomplishments included successfully resolving multiple matters involving the US Department of Justice, the European Commission, and other antitrust authorities.

In a release, the firm said Walsh’s choice to join Hogan Lovells is a product of the long-term relationship that has existed between IBM and Hogan Lovells for more than 30 years, including with respect to antitrust matters.

“We are delighted that after years of working with him at IBM, David has decided to join our team,” said Edith Ramirez, co-head of the firm’s Antitrust, Competition, and Economic Regulation practice. “His onboarding will strengthen our relationship with IBM, a long-time client, and also bolster our experience to clients in the technology industry.”

Walsh earned his J.D. from Suffolk University Law School in 1992 and his B.A. from the University of Miami in 1979.

TechCrunch reports that Facebook has recruited Kate Patchen, a veteran of the U.S. Department of Justice who led its antitrust office in Silicon Valley, to be a director and associate general counsel of litigation.

Patchen spent 16 years at the DoJ, where she began as a trial attorney before becoming an assistant chief in the antitrust division in 2014, and two years later she was made chief.

TechCrunch reporter Natasha Lomas writes that Patchen takes up her post amid ongoing scandals and reputation crises for her new employer, joining Facebook this month, according to her LinkedIn profile.

“Patchen, meanwhile, joins Facebook at the same time as some long-serving veterans are headed out the door — including public policy chief Elliot Schrage,” according to Lomas.

Read the TechCrunch article.

Gauri Prakash-Canjels, Ph.D. has joined Litigation Economics, LLC as a principal in its Washington, DC office.

In a release, the firm said Prakash-Canjels has worked on more than 150 cases, including intellectual property, antitrust, breach of contract, natural resource damages, personal injury and other matters. She is a seasoned expert and has served as an expert in federal and state courts as well as mediation and the Federal Trade Commission hearings, according to the firm.

Prior to being a principal at Litigation Economics, Prakash-Canjels was a consulting director at Brewer Attorneys and Counselors (formerly, Bickel and Brewer). She was a managing director and founding member of GreatBridge Consulting, Inc. Prior to founding GreatBridge Consulting in 2012, Prakash-Canjels was a principal at The Kenrich Group, a national business and litigation consulting firm.

Her background includes academic, corporate, economic consulting, and non-governmental organization positions.

The Antitrust Division of the U.S. Department of Justice recently announced a settlement of criminal charges against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. for having maintained agreements not to compete for each other’s employees, according to Locke Lord.

Authors Stephen P. Murphy and Joseph A. Farside Jr. write that one executive went so far as to state in an email that no-soliciting was a “prudent cause for both companies” and that the companies would “compete in the market.”

In announcing the settlement, an assistant AG noted that the criminal complaint was part of a broader Antitrust Division investigation into agreements not to compete for employees, typically known as no-solicit or no-poach agreements.

Read the article.

Agreements among companies to not hire each other’s workers are more risky than ever, warns Pepper Hamilton LLP in a post on its website.

“The DOJ’s Assistant Attorney General for the Antitrust Division, Makan Delrahim, stated on January 19 that the division has criminal cases targeting these agreements in the works,” the post says. “Meanwhile, lawsuits challenging no-poach agreements in technology, entertainment, health care and other industries have settled, sometimes for hundreds of millions of dollars. The DOJ announced its latest settlement, a civil settlement with two rail equipment suppliers, on April 3, underscoring that it did not bring criminal charges only because the suppliers ended their agreements before the FTC and DOJ issued guidance on ‘no-poach’ agreements in October 2016.”

The article concludes with some actions that firms should take to identify and limit their exposure.

Read the article.

Image by Mike Mozart

The biggest U.S. antitrust case of this century kicked into high gear Thursday as a government lawyer warned that AT&T Inc. wants to buy media giant Time Warner Inc. to “weaponize” its must-have content — a move that would raise prices for consumers and hinder innovation, according to the Los Angeles Times.

In opening arguments, Justice Department lawyer Craig Conrath said AT&T could use Time Warner’s content as a weapon against competitors that rely on the programming.

Reporter Jim Puzzanghera writes: “AT&T’s added leverage over pay-TV competitors to withhold content from some of the most valuable assets in entertainment — including HBO, CNN, TBS, TNT and Warner Bros., Hollywood’s largest TV and film studio — would cause prices to rise by more than $400 million a year for Americans, Conrath said.”

Read the LA Times article.

The Antitrust Update of Patterson Belknap Webb & Tyler discusses a Federal Trade Commission case in which it appears an amicus brief may have been dispositive to the outcome of an appeal.

In Federal Trade Commission v. Penn State Hershey Medical Center, a group of 36 economists affiliated with top universities across the country filed an amicus brief explaining that the lower court used a faulty economic theory when it ruled against the FTC. The appellate court cited the brief when it reversed the district court.

Authors Jake Walter-Warner and Jonathan H. Hatch examine the brief’s influence on the appellate court and show how the court laid out the issues with the district court’s analysis just as the amicus brief did.

Read the article.