Antitrust and Trade Regulation Commons^™

The Cost Of Waiting: Navigating The Ftc’S Noncompete Ban And The Risks Of Inaction, Cameron Weiss

University of Miami Business Law Review

This Comment critically examines the Federal Trade Commission’s (FTC) now–abandoned rule that sought to ban noncompete clauses in employment contracts, emphasizing the limitations of advice provided by attorneys, legal scholars, and experts who advocate for a “wait–and–see” approach during its development and subsequent litigation. Noncompetes, while serving as a tool for employers to safeguard proprietary interests and limit competition, also restrict employee mobility and bargaining power. The FTC’s proposed rule, which aimed to ban most noncompete clauses, faced immediate and substantial legal challenges under the major questions and nondelegation doctrines.

Although the FTC ultimately ceased defending the rule and acceded …

Flowing Cleanly: The Proper Roles Of The Courts And The Ftc In The Information Marketplace Of Advertising, Kateri J. Son

Journal of the National Association of Administrative Law Judiciary

After an introduction in Section I, Section II of this article will present the history of the commercial speech doctrine, illustrating the rules courts use to evaluate whether the FTC’s actions were constitutional. Section III will explain how the FTC combats deception and will describe the choice of remedies the FTC has available. Section IV will present and evaluate three potential solutions to the conflict between the courts and the FTC on First Amendment issues that courts have implemented. Finally, Section V argues that conflict between the two entities is inevitable, and therefore the middle approach is the best solution …

Shackles Or Safeguards?: Tailoring Ndas And Noncompetes To Protect Interests Without Imposing Uniform Restraints, Nadia Brenden

The Journal of Business, Entrepreneurship & the Law

To better understand the implications of the FTC’s sweeping proposal and the need for a state-by-state approach, the following sections dive into the legal, historical, and comparative foundations of restrictive covenants, trace their evolution across jurisdictions, and explain why states—not federal agencies—are best positioned to strike the right balance. Part II provides an overview of legal doctrines governing the transmission of proprietary information, a history of the early applications of employment contracts, and a comparative analysis of international noncompete standards. Part III describes how different jurisdictions apply trade secret, contract, and employment law to protect business interests through enforceable agreements. …

Beyond Data Deletion: Addressing Anticompetitive Conduct In The Era Of Machine Learning, Vaibhav Srikaran

Washington Journal of Law, Technology & Arts

Like a hamster wheel, the “virtuous cycle” of data collection, collation, and computation spins to create algorithms to assist modern business operations. Companies accumulate data by the terabyte with hopes that their army of data scientists can make sense of all the noise using machine learning. Potential profits encourage companies to seek out data—sometimes unlawfully through collusion. The use of unlawfully collected data in algorithms harms competition. Such data provides a competitive edge that is not accessible to all marketplace participants. Antitrust laws can police unlawful data sharing, but existing remedies are not effective for restoring competition.

Merely deleting ill-gotten …

Time Is Money And Anticompetitive: The Luxury Watch Industry's Weaponization Of Intellectual Property Against The Right To Repair, Isha Jadhav

American University Business Law Review

Since 2010, the Federal Trade Commission (FTC), Department of Justice (DOJ), legislators, and activists have jointly worked together to implement consumer rights in repairing personal property on both a state and federal level in the United States. These efforts have largely targeted the automobile and technology industries; these sectors have been known to “tie” their goods to authorized repair services, limiting consumer choice on where, how, and when to repair their goods. However, this issue is not limited to the automobile and technology industries, as luxury watches have gained newfound popularity, creating right to repair issues within the industry.

Despite …

Without Noncompete Agreements, Can Employers Keep A (Trade) Secret?, Cynthia L. Dahl

American University Business Law Review

Data, algorithms, and proprietary information and processes are critical assets for increasing numbers of companies. Since information assets often cannot be protected through patent, companies may instead rely on trade secret law. To meet the legal standard of a trade secret, companies must show that their information assets confer a competitive advantage to them by virtue of the secret status, and that they have taken reasonable measures to preserve the secrecy.

One of the reliable methods companies use to maintain secrecy, and to show that they have taken the required reasonable measures, is the use of restrictive covenants. Traditionally, companies …

Trustless Trust And Antitrust: A Synthesis, Matt Blaszczyk

Touro Law Review

Authors have written of antitrust law’s demise in the face of blockchain, which, seemingly, achieves the pro-competitive ends of the law through technology and private ordering. Permissionless blockchains in particular are said to offer a vision of radical disinter mediation and a break with the platform economy troubling the regulators today. At the same time, blockchain supposedly presents challenges to antitrust doctrine, from the most basic of concepts to the viability of enforcement and remedies. Finally, blockchain community governance is said to allow for private ordering of antitrust, i.e., enforcement of rules attempting to protect competition, which are at the …

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

From Rancid To Reasonable: Unfair Methods Of Competition Under State Little Ftc Acts, Samuel Evan Milner

American University Law Review

When Congress gave the Federal Trade Commission the power to identify and enjoin unfair methods of competition, it did not create a parallel private right of action as it had for other antitrust laws. Yet approximately two dozen states have since enacted their own “Little FTC Acts,” under which private plaintiffs may sue for damages and other remedies. These poorly understood state laws are actively shaping American competition policy on a national scale. The Ninth Circuit recently affirmed the nationwide injunction that Epic Games obtained against Apple under California’s law despite concluding that Apple violated no federal or state antitrust …

Neo-Brandeisianism's Democracy Paradox, Thomas A. Lambert, Tate Cooper

Faculty Publications

Neo-Brandeisians, including the current heads of the U.S. antitrust enforcement agencies, have declared contemporary antitrust a failure. Among their chief complaints is that prevailing antitrust doctrine has failed to protect democratic values because it has allowed business enterprises to amass excessive economic power. Such economic power, they assert, breeds undue political power as large firms have the resources to sway policymakers and may thereby thwart majority will. Outside the political realm, NeoBrandeisians say, massive industrial concentration undermines effective self-governance by rendering citizens beholden as consumers, suppliers, and laborers to a small group of powerful firms. To preserve democratic values, defined …

Brief Of Administrative Law Scholars As Amici Curiae In Opposition To Petitioners' Request For Reversal, Jeffrey Lubbers

Amicus Briefs & Court Filings

Amici curiae are administrative law scholars from universities around the United States.

They are: • William D. Araiza, Professor of Law and Dean of Brooklyn Law School; • Blake Emerson, Professor of Law at UCLA School of Law; • Jeffrey Lubbers, Professor of Practice in Administrative Law at American University Washington College of Law; • Todd Phillips, Assistant Professor of Business Law at Georgia State University J. Mack Robinson College of Business; and • Beau Baumann, Doctoral candidate at Yale Law School.

Amici have a strong interest in how the Court’s decision will affect the field of administrative law and …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Comments On Federal Trade Commission Non-Compete Ban Proposed Rule, Matter No. P201200, Chaz D. Brooks

Scholarly Articles in Law Reviews & Journals

Within signed law professors and law students submitted this letter to the Federal Trade Commission, writing in their individual capacities, not as agents of their affiliated institutions, in support of the Federal Trade Commission’s proposed rule to ban most non-compete clauses (the “Proposal”) as an unfair method of competition.

This letter offers comments in response to areas where the FTC has requested public comment. To make our views clear, this letter contains the following sections: I. Summary of the Proposal; II. The Commission Should Consider Expanding Its Definition of Non-Compete Clauses to Prevent Employers from Requiring Workers to Quit Before …

Weaponizing Rhetoric To Legitimate Regulatory Failures, Kat Albrecht, Kaitlyn Filip

FIU Law Review

Pyramid schemes are illegal. According to the courts, they are fraudulent because they must eventually collapse, disappointing or exploiting the members at the bottom. This illegality, largely governed by the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC), is narrowly construed to encompass only very specific instances of activity. In particular, we argue that the specificity of the law allows multi-level marketing companies (MLMs) to argue that they are ‘not a pyramid scheme’ both legally and societally in order to obfuscate exploitative conditions within the company. We take LuLaRoe as a case study of the ways in …

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

Cookies, Pop-Ups And Commercials: How Tech Companies' Privacy Promises Are Preserving Their Data Dominance, Cailley Lapara

Capstones

As antitrust sentiment focused on Big Tech from regulators and consumers grows, companies like Google and Apple and more have announced plans to move away from the behavioral ad business model that brought the companies to the size they are today. This trend is marketed to customers as a way to address their growing concerns over privacy and data collection. It also comes as the companies face sweeping antitrust litigation and legislation that would break up the firms. But the companies' claims of moving towards privacy are sketchy at best, and appear to serve as a way for the companies …

Ftc V. Qualcomm And The Need To Reboot Antitrust Goals, Beatriz Del Chiaro Da Rosa

University of Miami Business Law Review

The antitrust community is facing a demanding question: Is antitrust enforcement ultimately about protecting consumers, competition, or both? This question has sparked debates about the ultimate goals of antitrust law. On one side of the debate, supporters of the consumer welfare standard; and on the other side, supporters of the Neo-Brandeisian standard of enforcement. At this crucial time in the debate of overarching antitrust goals, the Ninth Circuit’s holding in Federal Trade Commission v. Qualcomm Incorporated, one of the most important antitrust cases in the twenty-first century, poses many issues for the consumer welfare standard and antitrust enforcement in the …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

A Suggested Revision Of The 2020 Vertical Merger Guidelines (July 2021), Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The DOJ/ FTC Vertical Merger Guidelines (VMGs) were adopted by the FTC in June 2020 by a party-line 3-2 party line over the dissent of the Acting Chair. One might expect that the VMGs will be withdrawn and/or revised, now that there is a Democratic majority. Revision is appropriate because the VMGs are both incomplete and overly permissible. This Suggested Revision can aid that process.

Leaving Judicial Review With The Judiciary: The Misplaced Role Of Agency Deference In Tunney Act Public Interest Review, Alexandra P. Clark

Washington and Lee Law Review

This Note explores the Tunney Act’s mechanism for judicial review of consent decrees negotiated by the U.S. Department of Justice and merging parties to remedy alleged antitrust issues. The Tunney Act requires that the reviewing court only approve a consent decree if it is “in the public interest.” This Note argues, however, that courts have improperly circumscribed their review by affording too much deference to the Department of Justice when reviewing these consent decrees. This deference subverts Congress’s intent in imposing judicial review and allows the government and merging parties the opportunity to skirt meaningful judicial review. As such, this …

The Limits Of Antitrust In The 21st Century, Thomas A. Lambert

Faculty Publications

Antitrust is having a moment. Commentators and policymakers, both progressive and conservative, are calling for increased antitrust enforcement to address all manner of social ills. From technology platforms' power over speech and encroachments on user privacy to wage stagnation in more concentrated labor markets, to competition softening from ever-larger index funds, to growing income inequality, reduced innovation, and threats to democracy itself - the list of maladies for which antitrust has been proposed as a remedy goes on and on.

This Article revisits The Limits of Antitrust in light of the current antitrust moment. Part I describes the central components …

Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear …

Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Has The Us Economy Become More Concentrated And Less Competitive: A Review Of The Data, Jonathan Baker, Steven Berry, Fiona Scott Morton, Joshua Wright, Gregory Werden

Legislative Testimony & Comments

FTC Chairman Joe Simons presented opening remarks, followed by a day of discussion by a distinguished set of panelists who discussed the following topics (some of which will be discussed on the rescheduled date):

• the current landscape of competition and consumer protection law and policy;
• whether the U.S. economy has become more concentrated and less competitive;
• the regulation of consumer data;
• antitrust law and the consumer welfare standard; and
• the analysis of vertical mergers.

Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari

Pepperdine Law Review

Healthcare companies are consolidating at an alarming rate. From hospitals, to providers’ offices, to insurance companies, there are increasingly fewer consumer choices and more monopolies, which calls for heightened antitrust enforcement. Interestingly, antitrust enforcement authority in the healthcare industry is shared between the Federal Trade Commission (FTC), which presides over hospital and provider mergers, and the Department of Justice (DOJ), which presides over health insurance mergers. Although the FTC has challenged many hospital and provider mergers, the DOJ has only challenged six health insurance mergers. Furthermore, last year, the DOJ ultimately approved all health insurance mergers. In 2017, in United …

The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen

Faculty Scholarship

On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.

Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller

The Journal of Business, Entrepreneurship & the Law

If the antitrust remedy a private party pursues would likely have anticompetitive consequences, would only the government constitute an efficient enforcer of the antitrust laws? Imagine that a plaintiff sues for a remedy so large that the award of the remedy would meaningfully increase market concentration by sending the defendants into bankruptcy. Is such a plaintiff an efficient enforcer of the antitrust laws? Should courts hold that in this situation only the government should be able to challenge the alleged conduct? These questions have gone unaddressed in academic literature because litigation rarely raises the specter of the anticompetitive remedy. Recently, …

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Scholarly Articles

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …

Merger And Acquisition Due Diligence Part Ii- The Devil In The Details, James A. Sherer, Taylor M. Hoffman, Kevin M. Wallace, Eugenio E. Ortiz, Trevor J. Satnick

Richmond Journal of Law & Technology

Our prior scholarship examined the legal and technical challenges involved in modern Merger & Acquisition ("M&A") due diligence practices associated with transactions ("Deals"), given recent but steady advances in technology and related increases in sophistication seen in Deal participants-primarily the organizations or assets targeted (the "Targets") as part of the Deal, and the organizations that pursued and/or resulted from the Deal (the "Acquirers"). We then proposed a framework addressing five particular verticals of interest and concern: data privacy ("DP"), information security ("IS"), e-Discovery, information governance ("IG"), and the due diligence and record keeping associated with the Deal itself ("Deal Information") …

Regulating Unfair Practices Under The Ftc Act: The Need For A Legal Standard Of Unfairness, Teresa M. Schwartz

Akron Law Review

This article will examine the Commission's past and proposed use of the unfairness theory to justify these trade regulation rules. It is the thesis of this article that the Commission has not defined adequately the parameters of the amorphous statutory term "unfair... acts or practices" nor analyzed the term sufficiently or consistently in its application to trade regulation rules. By purposefully leaving the unfairness theory vague, the Commission invites judicial reversals of its regulations and legislative limitations on its authority.