Insights

Washington – December 19, 2024: Global Competition Review recognized Crowell & Moring’s Antitrust & Competition Group in its 2025 “GCR 100” – a comprehensive list of the world’s leading competition practices. This year marks the 25th edition of the rankings and the 18th consecutive year that Crowell’s Antitrust & Competition Group has been recognized.

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.

Four days before the change in administration and in the wake of several high-profile trial losses in cases involving alleged “no-poach” and wage-fixing agreements, the Federal Trade Commission (FTC) and the Department of Justice, Antitrust Division (DOJ) jointly approved new guidelines, Antitrust Guidelines for Business Activities Affecting Workers” (the “2025 Guidelines” or “Guidelines”), that explain how antitrust enforcers have identified and assessed whether an agreement or business practice affecting workers may violate the antitrust laws.  The 2025 Guidelines were voted out at the FTC on a split 3-2 vote along party lines, with a brief but scathing dissenting statement from the Republican commissioners (including incoming FTC Chair Andrew Ferguson) that raises serious doubts as to how well the Guidelines reflect the approach the agencies will take during the next four years.  On the eve of the incoming Trump Administration, the 2025 Guidelines replaced the previous joint DOJ and FTC antitrust guidelines regarding employment practices that were issued in 2016, “Antitrust Guidance for Human Resource Professionals” (the “2016 Guidelines”), during the tail-end of the Obama Administration.

Plaintiffs battling the Federal Trade Commission’s ban on non-compete clauses in employment agreements notched a significant victory recently.  On August 20, 2024, U.S. District for the Northern District of Texas Judge Ada Brown permanently blocked the agency’s action in Ryan LLC v. Federal Trade Commission, concluding the rulemaking exceeded the agency’s statutory authority.  Judge Brown had previously granted a preliminary injunction that limited its effect to the plaintiffs in the case.  Yesterday’s ruling, however, which granted the plaintiffs’ summary judgment motion, permanently blocks the ban nationwide.

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. 

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.

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: