Interpreting the DOJ’s recent enforcement campaign against “no-poach” cases

Since 2010, with its cases filed against a number of leading technology companies, the Department of Justice (DOJ) has shined a spotlight on the potential antitrust risks associated with employers’ use of “no-poach” agreements in which companies agree not to hire or solicit each other’s employees. The DOJ and the Federal Trade Commission (FTC) issued joint guidelines in 2016 making clear that they would aggressively enforce the antitrust laws against such agreements between and among competitors as per se unlawful, including through criminal enforcement.  Yet, the DOJ recently filed Statements of Interest in several pending antitrust cases brought against franchisors, taking the position that the no-poach agreements at issue in those cases were not per se unlawful and should be analyzed under the more forgiving rule of reason test. The DOJ’s filings do not reflect a change in the Department’s enforcement policy regarding no-poach agreements. The cases, however, in which the DOJ staked out its position bear watching and could ultimately provide helpful guidance to franchisors, manufacturers who distribute through independent dealers. Our Antitrust and Competition Team summarize and interpret the DOJ’s recent enforcement actions in our recent client alert.

New EU rules promote transparency and fairness in online trading practices

On February 14, 2019, the European Commission, European Parliament, and Council of the European Union reached agreement on new rules designed to ensure a fair, transparent and predictable business environment to the benefit of both end consumers and entrepreneurs using third party online platforms for their business. The new rules will be implemented by way of an EU regulation to be adopted by the Council and European Parliament. Members of our competition team have outlined the main changes that this new regulation brings in our recent alert.

FTC announces revised HSR thresholds for 2019

On February 15, 2019, the Federal Trade Commission (FTC) announced the annual threshold adjustments for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (15 U.S.C. § 18a) (HSR). The FTC revises the thresholds annually based on the change in gross national product.  The revised HSR thresholds will apply to all transactions that close on or after the effective date, and the effective date will be in late March. Members of our Antitrust team explain what you need to know in our client alert.

China enacts new Criminal Judicial Assistance Law; impacts on cross-border investigations and foreign criminal enforcement

On October 26, 2018, China enacted the International Criminal Judicial Assistance Law. This law imposes additional procedures relating to the provision of judicial assistance in criminal matters between China and other countries. Our Asia Investigations team considers the key provisions of the law, its potential impact on internal investigations by foreign companies operating in China, and implications on foreign criminal enforcement against Chinese entities and nationals in this client alert.

Identifying and mitigating risk in a changing global economy: Reed Smith to host life sciences health industry roundtable in London

On 5 March, Reed Smith will welcome in-house counsel at pharmaceutical, medical device, and health companies to join a roundtable discussion on how to identify and mitigate risk. Our Government Investigations partners Rosanne Kay and Eoin O’Shea will speak on a panel “Global Investigations of Companies and their People: A Look at Current Issues through the Lens of a Case Study.”

We are happy to announce our in-house and industry speakers: Helen Barraclough (Associate General Counsel, Smith & Nephew), Andrew Davies (Director, Market Access, Association of British HealthTech Industries), Alexander Povey (Consultant Patent Attorney, MSD), and Brooke Daley (Investigations and Compliance Counsel, Zimmer Biomet).

Other Reed Smith speakers will include Daniel KadarRick Robinson, Cynthia O’Donoghue, Anette Gärtner, and Jeff Layne

Additional panels will cover: “The Intersection of Digital Health and Data Protection: Devices, Data Collection and Analytics and Control” and “Patents: A Discussion of What Keeps the In-House Practitioner Awake at Night.”

The roundtable event will be held in Reed Smith’s London office.

OFAC imposes strong sanctions on Venezuela’s PDVSA

On Monday January 28, the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) imposed strong sanctions on Petróleos de Venezuela, S.A. (PdVSA), a major Venezuelan state-owned oil and natural gas company. The U.S. is now prohibited from engaging in transactions with the company, and all property and interests in property of PdVSA that are subject to U.S. jurisdiction are blocked. Members of our Sanctions Team describe the impacts of this action in our client alert.

OFAC lifts sanctions on three Russian entities

On January 27, 2019, the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) removed UC Rusal plc (Rusal), En+ Group plc (En+), and JSC EuroSibEnergo (ESE) from the Specially Designated Nationals (SDN) List, reducing the number of Russian entities sanctioned by the United States. Our Sanctions Team explores the implications in our recent client alert.

Prescription drug purchasing initiative in California raises legal questions

Last week, California Governor Gavin Newsom signed an Executive Order creating a program to lower prescription drug costs throughout the state. This initiative could significantly impact pharmaceutical manufacturers, managed care companies, pharmacies and other industry participants, as well as prescription drug consumers. Reed Smith’s health care and antitrust teams summarize Newsom’s Executive Order and address consequent legal and policy issues in this client alert.

FCA fines household appliance manufacturers €189 million for cartel activities

On December 5, 2018, the French Competition Authority (FCA) fined six large household appliance manufacturers a total of €189 million for agreeing on price increases charged to end-consumers and commercial terms applicable to their kitchen installers. This is the tenth highest fine imposed for cartel activities by the FCA since 2000. Members of our EU, Competition & Regulatory team summarize the case in our recent client alert.

FTC hearings address AI regulatory challenges

On November 13–14, the Federal Trade Commission (FTC) held hearings on “Competition and Consumer Protection in the 21st Century.” The panelists, an assembly of industry leaders, academics and enforcers, discussed consumer protection and antitrust issues that arise from harvesting data through AI, the role of industry in mitigating potential harms and whether government agencies can effectively prevent AI misuse within existing legal frameworks. Our client alert describes what measures companies and agencies can take to protect consumers and competition in this next frontier of antitrust enforcement. Visit reedsmith.com to learn more.

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