Insights

Washington – June 6, 2024: Crowell & Moring earned 78 rankings for 67 lawyers, as well as 41 national and statewide practice area rankings, in the Chambers USA 2024 guide. The rankings are driven by independent interviews of clients and lawyers at peer firms.

Washington – June 1, 2023: Crowell & Moring earned 82 rankings for 68 lawyers across 48 categories, as well as 37 national and statewide practice area rankings, in the Chambers USA 2023 guide. The rankings are driven by independent interviews of clients and lawyers at peer firms.

The Federal Trade Commission (“FTC”) is now batting .500 in its effort to defend its rule banning most employee non-compete agreements.  On July 23, 2024, Judge Kelley Hodge of the U.S. District Court for the Eastern District of Pennsylvania denied the request for a preliminary injunction to block that rule from going into effect pending a full trial.  This decision is at odds with the decision issued earlier this month by Judge Ada Brown of the U.S. District Court for the Northern District of Texas, which found that the FTC had exceeded its statutory authority and issued a limited preliminary injunction that prevented the rule from becoming effective as to the plaintiffs in that case. 

On July 3, 2024, Judge Ada Brown of the U.S. District Court for the Northern District of Texas temporarily blocked the Federal Trade Commission (“FTC”) from enforcing its recent rule banning virtually all employee non-compete agreements in the United States.  In its 33-page opinion, the court ruled that the plaintiffs are likely to succeed on the merits of their claims that the FTC lacks statutory authority to issue its non-compete ban via rulemaking and that the FTC’s decision to ban non-competes broadly was arbitrary and capricious. However, in a surprise twist, the court declined to grant nationwide preliminary relief, opting instead to limit its injunction to the specific plaintiffs in the action.  The court indicated that it intends to issue a final ruling by August 30, 2024—days before the non-compete ban is scheduled to take effect on September 4.

This week, a DOJ Antitrust Division official signaled a significant expansion of its criminal enforcement program. While speaking at the ABA White Collar Conference in San Francisco, Deputy Assistant Attorney General Richard Powers said that the Division is considering criminally prosecuting violations of Section 2 of the Sherman Act, which prohibits monopolization. This is a major break from long-standing Division policy that it would prosecute only per se violations of the antitrust laws, and raises potentially significant due process concerns.

As federal, state, and international antitrust scrutiny of the tech industry escalates, the question is no longer whether antitrust enforcement should intensify, but how. Please save the date for the inaugural Antitrust & Tech Conference co-hosted by the George Washington University Competition Law Center and Crowell & Moring, which will focus on how antitrust enforcement involving mergers of technology companies will and should be carried out. 

When President Trump was elected, there was an assumption that there would be limited federal antitrust enforcement under his administration.  This assumption has turned out to be wildly incorrect.  Federal antitrust enforcers have challenged mega-mergers such as the AT&T/Time Warner merger.  They are actively investigating corporate hiring practices, including “no-poach” agreements among competitors and “non-compete” clauses in franchise agreements.  They are also scrutinizing the data privacy practices and growing market power of large Silicon Valley companies such as Facebook, Google, and Amazon.

Click here to access the full slides from the conference.

Since the U.S. Department of Justice and the Federal Trade Commission jointly released the Antitrust Guidance for Human Resource Professionals in 2016, the DOJ has been actively and increasingly investigating criminal conduct in employment practices, issuing indictments and opening companies to follow-on civil class action lawsuits. And President Biden’s recent Executive Order on Promoting Competition in the 21st Century specifically calls out labor market competition, further ratcheting up the pressure.

The 69th Annual Spring Meeting of the ABA Section of Antitrust Law is the world's largest meeting of competition and consumer protection professionals. The Spring Meeting brings together all segments of the global competition and consumer protection community - enforcement officials, private attorneys, in-house corporate counsel, academics, judges, economists, and business people - to share knowledge about all aspects of competition and consumer protection law.

Crowell & Moring panelists will discuss antitrust compliance issues for both US and European syndicated loan transactions. The session is particularly timely as the European Commission is currently reviewing potential antitrust concerns raised by syndicated lending arrangements with plans to issue a report by year end. When the Commission launched this review, it noted that syndicated lending “exhibits close cooperation between market participants in opaque or in transparent settings, such as over-the-counter (OTC) activities, which are particularly vulnerable to anti-competitive conduct.” Experienced antitrust and lending experts will: