Melissa H. Maxman and Ronald F. Wick have been recognized in the inaugural edition of Lawdragon’s “500 Leading Global Antitrust & Competition Lawyers” guide, which features “lawyers and firms leading the way in antitrust and competition.”

This prestigious recognition highlights their exceptional expertise and commitment to excellence in navigating the complex antitrust and competition landscape.

Melissa and Ron were also recognized in the 2025 Lawdragon “500 Leading Litigators in America” guide, which was released in September.

Congratulations to Melissa and Ron on this well-deserved honor.

 

Lawdragon has recognized six Cohen & Gresser partners in its 2025 "500 Leading Litigators in America" guide:

• Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar
• Lawrence T. Gresser – Complex Commercial Litigation
• Melissa H. Maxman – Litigation, including White Collar and Antitrust
• Douglas J. Pepe – Complex Litigation, Law Firm Malpractice, Blockchain
• John Roberti – Antitrust & Competition Law, including Litigation
• Ronald F. Wick – Antitrust & Competition Litigation

This year’s Lawdragon guide highlights "the best litigators the U.S. has to offer" across various categories, following an extensive review of a record number of submissions. The guide focuses on lawyers who have made a significant impact, particularly in recent high-profile matters. The selection process includes in-depth analysis of major litigation and the attorneys consistently sought for key cases.

The Legal 500 United States 2024 edition has recognized Cohen & Gresser’s New York and Washington, D.C. offices for excellence across multiple categories, including Antitrust Litigation, Corporate Investigations and White-Collar Crime, Commercial Litigation, and Securities Litigation. Testimonials included in the guide praise the firm for being a “litigation powerhouse” and for its “devotion to the needs of the clients, its creativity, and its perseverance.”

Mark Cohen is once again recognized as a Leading Partner in both Securities Litigation and Corporate Investigations & White-Collar Crime: Advice to Individuals.

The 2024 guide also recognizes Lawrence T. Gresser, Jonathan Abernethy, Jason Brown, S. Gale Dick, Christian Everdell, Jeffrey Lang, Alisa Lu, Melissa Maxman, Douglas Pepe, John Roberti, Daniel Tabak, and Ronald Wick as recommended lawyers.

This 17th edition of The Legal 500 United States guide, which identifies the “true superstars of the profession,” involved a detailed assessment of various factors, including work conducted by law firms over the past 12 months and historically; experience and depth of teams; and client feedback.

Founded in 2002, Cohen & Gresser’s New York office serves as the firm’s headquarters. Our New York attorneys are particularly strong in complex litigation, investigations, and transactions. The firm’s Washington, D.C. office handles a range of commercial litigation and regulatory enforcement actions, with a focus on domestic and foreign antitrust issues.

Cohen & Gresser's Washington, D.C. lawyers have been recognized in the 2024 Super Lawyers guide.

Each year, Super Lawyers identifies outstanding lawyers nationwide and regionally who have attained a high degree of peer recognition and professional achievement. Only 5 percent of lawyers are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars. This latest guide recognizes 100 percent of our D.C. partners and associates.

The C&G lawyers recognized as Washington, D.C. Super Lawyers are:

• Melissa H. Maxman – Antitrust Litigation
• John Roberti – Antitrust Litigation
• Ronald F. Wick – Antitrust Litigation

The C&G lawyers recognized as Washington, D.C. Rising Stars are:

• Derek Jackson – Business Litigation
• Alisa Lu – Business Litigation

Cohen & Gresser is pleased to announce that Mark S. Cohen, Melissa H. Maxman, John Roberti, and Ronald F. Wick are included in the 2024 Lawdragon 500 Leading Litigators in America guide. Selection for the guide is based on extensive independent research focused on which lawyers and law practices have had a significant impact, with an emphasis on recent matters handled.

Recognized Lawyers

• Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar

• Melissa H. Maxman – Litigation, including White Collar and Antitrust

• John Roberti – Antitrust & Competition Law, including Litigation

• Ronald F. Wick – Antitrust & Competition Litigation

Lawdragon is a legal media company providing news content and editorial features, including guides to the nation’s leading lawyers. This is Lawdragon’s second edition of the guide, assessing America’s top talent among those principally representing corporations and other organizations litigating claims involving antitrust, financial and securities litigation, intellectual property, commercial, M&A, cybersecurity and data privacy, and white collar and investigations.

The Legal 500 United States 2023 edition has recognized Cohen & Gresser’s New York and Washington, D.C. offices for legal excellence in Antitrust Litigation, Corporate Investigations and White-Collar Crime, Commercial Litigation, and Securities Litigation. Partner Mark Cohen received recognition as a Leading Lawyer in Securities Litigation and Corporate Investigations and White-Collar Crime: Advice to Individuals. The 2023 guide also recognized partners Lawrence T. Gresser, Jonathan Abernethy, Jason Brown, S. Gale Dick, Jeffrey Lang, Melissa Maxman, Douglas Pepe, John Roberti, Daniel Tabak, and Ronald Wick as recommended lawyers. This 16th edition of The Legal 500 United States guide involved a detailed assessment of various factors, including work conducted by law firms over the past 12 months and historically; experience and depth of teams; and client feedback. The guide highlights C&G’s “widespread global footprint” as being “crucial on multifaceted disputes work.” It praises the firm’s “ability to handle high-end and top-of-the-line cases” and “strength in bet-the-company litigation, contract disputes, fraud, and the financial services sector.” Founded in 2002, Cohen & Gresser’s New York office serves as the firm’s headquarters. Our New York attorneys are particularly strong in securities litigation and arbitration, international arbitration, regulatory investigations, patent litigation, and M&A transactions. The firm’s Washington, D .C. office handles a range of commercial litigation and regulatory enforcement actions, with a focus on domestic and foreign antitrust issues.

International law firm Cohen & Gresser is pleased to announce that Mark S. Cohen, Melissa H. Maxman, John Roberti, and Ronald F. Wick have been recognized in Lawdragon’s inaugural 500 Leading Litigators in America 2023 guide. Selection for the guide is based on independent research focused on recent cases and verdicts or settlements, as well as attorney excellence in trials.

Recognized Lawyers

• Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar

• Melissa H. Maxman – Litigation, including White Collar and Antitrust

• John Roberti – Antitrust & Competition Law, including Litigation

• Ronald F. Wick – Antitrust & Competition Litigation

Lawdragon is a legal media company providing news content and editorial features, including guides to the nation’s leading lawyers. This is Lawdragon’s first guide dedicated to attorneys principally representing corporations and other organizations in litigating claims involving Antitrust, Securities, Financial, M&A, Intellectual Property and Patents, Product Liability, Mass Tort, White Collar, Government Investigations, and Energy disputes.

International law firm Cohen & Gresser is pleased to announce that three Washington D.C.-based lawyers, Melissa Maxman, John Roberti, and Ron Wick, have been named to leadership positions for the American Bar Association’s Antitrust Law Section for 2022-2023. The American Bar Association’s Antitrust Section is the world's leading community of competition, consumer protection, and data privacy professionals.

Melissa Maxman serves as the Co-Chair of the Exemptions and Immunities Committee, which addresses judicially created immunities and serves as a resource for information on the scope of antitrust laws. She also serves as a Vice Chair for the Podcast Programming Committee, where she serves as a frequent host of the ABA’s Antitrust Law Section’s podcast, Our Curious Amalgam.

John Roberti is serving as the Technology Officer for the ABA’s Antitrust Law Section. As one of 15 Section officers, John serves on the Antitrust Section’s cabinet and is responsible for integrating technology solutions into the mission of the Section.

Ron Wick is Vice Chair of the Antitrust-Consumer Protection Law Daily Digest Committee, which publishes a daily compendium of antitrust and consumer protection news from around the world to keep the Section's membership apprised of development and analysis in their field.

About Cohen & Gresser: Cohen & Gresser is an international law firm with offices in New York, Paris, Washington, DC, and London. We have an outstanding record of success in high-stakes and high-profile litigation, investigations, and transactional work for our clients, including major financial institutions and companies across the world. Our attorneys have superb credentials, and are committed to providing the efficiency and personal service of a boutique law firm along with the quality and attention to detail that are the hallmarks of the best firms in the world. The firm has been recognized in a wide range of publications, including Chambers and The Legal 500.

International law firm Cohen & Gresser has been recognized in The Legal 500 United States 2022 guide for “bringing excitement and innovation to the practice of law.” The 2022 guide recognizes more C&G lawyers and practice areas than ever before, including a 58% increase in individual attorney recommendations and new rankings at the practice and “Leading Lawyer” levels.

The guide highlights C&G’s “elite group of practitioners” and use of advanced machine learning techniques and notes that the firm “handle[s] cases that are every bit as complex and challenging as big, national law firms.” Commentators noted that the firm “punches way above its weight” in litigation and investigation matters.

C&G Co-Founder Mark S Cohen is one of only two lawyers in the United States to be recognized as a “Leading Lawyer” in both Securities Litigation: Defense and Corporate Investigations and White-Collar Criminal Defense. Commentary from The Legal 500 recognizes Mark as a “top-tier advocate” who is “at the top of the profession” and “can litigate with the best of them.”

For the first time, C&G’s Antitrust practice has been recognized in Antitrust: Civil Litigation/Class Actions: Defense for its handling of class action cases concerning allegations of cartel behavior, monopolization, and other exclusionary conducts. The Legal 500 cites the leadership of Melissa H Maxman and the addition of “heavyweight” lawyer John Roberti as key reasons for the practice’s recognition.

C&G is again recognized in the Advice to Individuals and Advice to Corporates categories of the Corporate Investigations and White-Collar Criminal Defense section. The Legal 500 commentary notes that the practice is led by “partners with deep experience who obtain excellent results for clients” and is “well placed to handle transatlantic cases” with offices in New York, Paris, and London, and has “particular expertise in financial crime, antitrust enforcement, public corruption, and tax issues.”

The guide has also recognized C&G once again in the General Commercial Disputes category, praising the practice for showing the “discipline and focus necessary to win a case.” Testimonials from the guide highlight the team’s ability to “handle large and complex matters” with “experienced people, good judgment,” and “better use of technology.”

For the 10th consecutive year, C&G has been recognized in the Securities Litigation: Defense category for the firm’s “expertise in the financial services sector” and “recognized trial expertise” in cross-border and domestic securities litigation and enforcement proceedings. The Legal 500 emphasizes the team’s “strong practitioners” and “attentiveness to clients” in the 2022 guide.

Recognized Practices:

• Antitrust: Civil Litigation/Class Actions: Defense
• Corporate Investigations and White-Collar Criminal Defense: Advice to Individuals
• Corporate Investigations and White-Collar Criminal Defense: Advice to Corporates
• General Commercial Disputes
• Securities Litigation: Defense

Recognized Individuals:

Antitrust: Civil Litigation/Class Actions: Defense

• Melissa H Maxman
• John Roberti
• Ronald F Wick

Corporate Investigations and White-Collar Criminal Defense

• Jonathan S Abernethy
• Jason Brown
• Mark S Cohen
• S Gale Dick
• Jeffrey I Lang
• Melissa H Maxman
• Reggie Schafer

General Commercial Disputes

• Mark S Cohen
• S Gale Dick
• Lawrence T Gresser
• Melissa H Maxman
• Daniel H Tabak

Securities Litigation: Defense

• Jonathan S Abernethy
• Mark S Cohen
• S Gale Dick
• Lawrence T Gresser

About The Legal 500:

The Legal 500 analyzes the capabilities of law firms across the world. Its rankings “highlight the practice area teams who are providing the most cutting edge and innovative advice to corporate counsel.”

Mergers & Acquisitions magazine announced that its 2022 Deal of the Year is global investment firm Francisco Partners’ acquisition of Trading Screen and Imagine Software within a 14-day period in the spring of 2021. Cohen & Gresser represented Imagine Software, a global portfolio risk management technology company, in the deal.

Francisco Partners, which specializes in partnering with technology and technology-enabled businesses, soon after merged the two acquired entities to create TS Imagine, a dynamic end-to-end trading and portfolio management software platform that is now used by 500 financial institutions worldwide. In awarding the “Deal of the Year” distinction, the magazine praised the deal’s formation of a “singular company poised for growth across both the buy and sell-side.”

The C&G team representing Imagine Software included Lawrence T Gresser, Kwaku Andoh, Karen H Bromberg, Bonnie J Roe, Nicholas J Kaiser, Ronald F Wick, Alexandra K Theobald, and Drew S Dean. Learn more about the deal in Francisco Partners’ press release and C&G’s news alert.

Mergers & Acquisitions, founded in 1965, is the oldest trade brand for the dealmaker community and is where private equity professionals, strategic acquirers and advisors turn for news, analysis, data and community around deals and dealmakers.

International law firm Cohen & Gresser represented Sierra Space Corporation, a commercial space company that is building and delivering the infrastructure and systems required for the future of space travel, in its record-breaking $1.4 billion Series A financing round. The private funding round represents the largest aerospace and defense capital raise in the world in 2021 and the second-largest private capital raise of all time in the aerospace and defense sector. Leading global investors including General Atlantic, Coatue, and Moore Strategic Ventures, along with private equity funds managed by firms including Black Rock and AE Industrial Partners and various family offices, all participated in the transaction. Cohen & Gresser served as counsel to our client Sierra Space on all aspects of the transaction. “We are proud of the opportunity to assist Sierra Space in this groundbreaking transaction to support the future of space travel,” said Jeffrey M. Bronheim, lead partner on the engagement for Cohen & Gresser. The Cohen & Gresser team was led by Jeffrey M. Bronheim, Bonnie J. Roe, and Daniel H. Mathias, with assistance from associates Winnifred A Lewis and Georgia Moorhouse. C&G partners Nicholas J. Kaiser (tax), Ronald F. Wick (antitrust), and David F. Lisner (litigation) provided additional support. Read Sierra Space Corporation’s press release here.

Reuters covered the recent summary judgment by the New York Supreme Court to dismiss allegations brought against Goldman Sachs & Co. LLC and two other Wall Street banks in a case alleging a boycott in violation of the Donnelly Act, New York’s antitrust statute.

Cohen & Gresser is pleased to announce that 37 of the firm's New York and Washington D.C.­based attorneys have been named to the 2021 Super Lawyers List across a wide range of practice areas. C&G co-­founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak have also been named to the Super Lawyers list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg has been recognized as one of the top 50 women lawyers in the New York metropolitan area.

Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only five percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.

Super Lawyers

Jonathan S Abernethy: Criminal Defense: White Collar

Kwaku Andoh: Mergers & Acquisitions

Elizabeth Bernhardt: Business Litigation

Thomas E Bezanson: Personal Injury – Products: Defense

Colin C Bridge: Criminal Defense: White Collar

Karen H Bromberg: Intellectual Property

Jason Brown: Criminal Defense: White Collar

Joanna K Chan: Securities Litigation

Mark S Cohen: Business Litigation

S Gale Dick: Business Litigation

Christian R Everdell: Criminal Defense: White Collar

Lawrence T Gresser: Business Litigation

Oliver S Haker: Business Litigation

Johannes Jonas: Mergers & Acquisitions

Nicholas J Kaiser: Real Estate

Jeffrey I. Lang: Business Litigation

Melissa H Maxman: Antitrust Litigation

Ellen Paltiel: General Litigation

Nathaniel P T Read: Business Litigation

Bonnie J Roe: Securities & Corporate Finance

Stephen M Sinaiko: Business Litigation

C Evan Stewart: Securities Litigation

Daniel H Tabak: Business Litigation

Scott D Thomson: Business Litigation

Alexandra Wald: Business Litigation

Ronald F Wick: Antitrust Litigation

Rising Stars

Luke Appling: Civil Litigation

Sharon L Barbour: Criminal Defense: White Collar

Drew S Dean: General Litigation

William Kalema: Business Litigation

Sri Kuehnlenz: Civil Litigation

Winnifred A Lewis: Securities Litigation

Marvin J Lowenthal: Criminal Defense: White Collar

Barbara K Luse: Criminal Defense: White Collar

Matthew V Povolny: Business Litigation

Benjamin Zhu: Criminal Defense: White Collar

Cohen & Gresser represented Imagine Software, a leading global portfolio risk management technology company, in its sale to Francisco Partners, a global investment firm that specializes in partnering with technology and technology-enabled businesses. Francisco Partners has announced that it will combine Imagine Software with the recently acquired TradingScreen to form TS Imagine – a new dynamic end-to-end trading and portfolio management software platform that will be one of the most robust SaaS cloud-based software platforms in capital markets and investment management. The combined company will offer integrated and complete front office solutions, complementary product capabilities, best-in-class technology, global geographic coverage, and deep expertise to investment firms and financial institutions around the world. The C&G team representing Imagine Software in its sale to Francisco Partners included Lawrence T Gresser, Kwaku Andoh, Karen H Bromberg, Bonnie J Roe, Nicholas J Kaiser, Ronald F Wick, Alexandra K Theobald, and Drew S Dean. Learn more about the deal in Francisco Partners’ press release.

Cohen & Gresser is pleased to announce that 35 of the firm's New York and Washington D.C.­based attorneys have been named to the 2020 Super Lawyers List across a wide range of practice areas. C&G co-­founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak have also been named to the Super Lawyers list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg has been recognized as one of the top 50 women lawyers in the New York metropolitan area.

A D.C.-based C&G team comprised of Melissa H Maxman, Ronald F Wick, and Erica Lai helped secure a victory in the U.S. Supreme Court’s landmark ruling that all workers are protected under Title VII of the 1964 Civil Rights Act regardless of gender identity or sexual orientation.

We are pleased to announce that 33 of our New York and Washington D.C.-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also selected C&G co-founder Mark S Cohen and partners Jonathan S Abernethy and Daniel H Tabak to its list of the top 100 lawyers in the New York metropolitan area, and partner Karen H Bromberg to its list of the top 50 women lawyers in the New York metropolitan area.

We are pleased to announce that thirty of our New York and Washington, D.C.-based C&G attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also selected C&G co-founders Mark S Cohen and Lawrence T Gresser to its list of the top 100 lawyers in the New York metropolitan area, and partners Karen H Bromberg and Alexandra Wald as two of its top 50 women lawyers in New York. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in the U.S. receive this honor.

Cohen & Gresser helped achieve a precedent-setting ruling in the U.S. Court of Appeals for the Third Circuit in Jerry Reeves v. Fayette SCI, et al. (No. 17-1043), that clears the way for wrongfully convicted defendants to seek federal habeas relief where their trial counsel failed to present credible evidence of their actual innocence. There is a split among federal circuit courts over what type of “new evidence” of actual innocence is required before courts can consider the merits of untimely habeas corpus petitions that allege constitutional violations.  Some circuits consider evidence only if it is newly discovered after trial, while others permit evidence available at the time of the trial that defense counsel failed to present. The Third Circuit had not weighed in on the issue. Cohen & Gresser filed a pro bono amici curiae brief on behalf of the Innocence Network and the Innocence Project of Pennsylvania urging the Third Circuit to adopt the broader newly presented standard, because the narrower newly discovered evidence standard would cut off a pathway to exoneration for innocent individuals whose attorneys failed to present exculpatory evidence at trial. In a precedential decision on July 23, 2018, the Third Circuit agreed, vacating the denial of Mr. Reeves’ habeas petition and instructing the district court on remand to consider his newly presented exculpatory evidence.

Twenty-eight of our New York and Washington D.C.-based Cohen & Gresser attorneys have been recognized by Super Lawyers this year across a wide range of practice areas. Super Lawyers also named C&G co-founding partner Mark S Cohen to its list of the top 100 lawyers in the New York metropolitan area, and partners Karen H Bromberg and Alexandra Wald to its top 50 women lawyers in New York list. Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Fewer than five percent of all lawyers in the U.S. receive this honor.

See Politico’s coverage of the event here.

In January, as the Biden Administration drew to a close, the U.S. Department of Justice (“DOJ”) and eight state attorneys general amended their antitrust lawsuit against software maker RealPage, Inc. (“RealPage”). The lawsuit alleges that RealPage amasses nonpublic, competitively sensitive data from competing landlords through its pricing algorithms and then uses this data in generating pricing recommendations that the landlords are expected to follow. The amendment adds as defendants six of the nation’s largest landlords, alleging that they participated in an unlawful scheme not only through their use of RealPage’s algorithms, but also through direct coordination and information-sharing. Two additional state plaintiffs have joined the suit as well.

One of the six landlords has agreed to a settlement that, if approved, would prohibit it from using competitors’ non-public information to run or train its pricing models, and from using third-party pricing software or algorithms without the supervision of a court-appointed monitor. The settlement also requires the landlord’s cooperation in the litigation.

The new allegations against landlords in the RealPage suit add another dimension to the collection of algorithmic price-setting cases that have developed in recent years, including private litigation against RealPage. Collectively, these cases have begun to shape the early contours of the answer to an important question: To what extent does algorithmic price-setting constitute unlawful price-fixing in violation of the Sherman Act?

Instructing the Algorithm: The Topkins Prosecution

In 2015, in United States v. Topkins, the DOJ brought its first criminal prosecution targeting the use of algorithmic price fixing. The DOJ entered into a plea agreement with a former e-commerce executive stemming from his participation in an alleged price-fixing conspiracy involving the sale of posters on Amazon’s marketplace. The DOJ alleged that the executive and his co-conspirators agreed to adopt specific algorithms for the sale of the agreed-upon posters with the goal of coordinating price changes, and that the executive wrote computer code that instructed his company’s algorithm-based software to set prices of the agreed-upon posters in conformity with the agreement. Topkins heralded a new era in enforcing antitrust laws in the realm of algorithmic pricing.

Topkins involved conspirators communicating directly about algorithmic pricing and directly instructing the pricing algorithms, resulting in anticompetitive effects in the marketplace. The fact pattern in Topkins, while in the context of algorithmic pricing, involved conduct that would constitute a traditional Sherman Act violation: direct instruction of the algorithm and communications among conspirators, a prohibited agreement in restraint of trade.

Post-Topkins cases, however, have been more nuanced. Rather than directly instruct an algorithm to conform to a price-fixing agreement, the more recent cases involve competitors feeding their non-public information to a third-party algorithm that uses the information to make pricing recommendations. Under this scenario, the lawfulness of the conduct may turn, at least in part, on the extent to which there is an agreement or expectation that competitors’ prices will follow the platform’s model, as well as whether the software algorithm bases its recommendations on competitors’ non-public information. What remains to be seen is whether an algorithmic price-setting machine learning model that “learns” to set prices based on competitively sensitive information received from multiple competitors can ever be lawful, and if so, under what circumstances.

“Mandatory” Price Recommendations

The RealPage cases involve competitors providing data to a software algorithm that then recommends prices to its users—recommendations that allegedly border on mandates. The DOJ complaint alleges that RealPage’s products make it easy for property managers to accept its recommendations, such as through “bulk” acceptances, but difficult and time-consuming to decline them. In their statements of interest filed in ongoing private litigation against RealPage, the DOJ and the Federal Trade Commission (“FTC”) argued that real estate owners and operators, after sending RealPage their nonpublic and competitively sensitive data, “overwhelmingly priced their units in line with RealPage’s suggested prices (80-90%).” In doing so, the agencies argued, owners/operators effectively delegated independent decision-making to the algorithm, and RealPage prevented deviations from its suggested prices by enforcing and monitoring compliance with those prices.

In the private litigation, a Tennessee federal court denied the defendants’ motion to dismiss the complaint, finding that the plaintiff lessees had adequately alleged parallel conduct through the defendants’ change in pricing strategies following their adoption of RealPage’s software—including price increases during an economic downturn that were against the defendants’ self-interest. This finding would appear to be consistent with the allegation that RealPage’s users have little discretion to override the algorithm’s recommendations.

Similarly, in Duffy v. Yardi Systems, Inc., a Washington federal court, in December, denied a motion to dismiss based on similar allegations, also involving pricing algorithms in the multifamily housing market. In Duffy, however, the court neither required nor cited any allegations as to the mandatory nature of the price recommendations. Instead, the court relied on allegations from which it could infer that each lessor contracted with the software maker “in circumstances showing an intent to participate in a concerted scheme or plan to fix rental prices and restrain trade.” According to the court, the complaint alleged that the software provider advertised its product “as a means of increasing rates above those available in a competitive market.” It also alleged that “[e]xisting lessor clients publicly touted the success of Yardi’s efforts to increase rental rates, the benefits of not having to guess at market conditions or to offer concessions/specials, and the elimination of concerns that they would be underbid, implicitly inviting other lessors to sign up and enjoy the same benefits.” The court rejected the argument that the complaint was required to allege a specific agreement to implement the algorithm’s pricing recommendations, finding that “the allegations amply suggest that the lessors intended to, and for the most part, did adhere” to the recommendations.

The DOJ/states’ amended complaint in RealPage goes even further. Rather than rely solely on each landlord’s independent agreement with RealPage, the DOJ/states allege traditional Section 1 conduct between the landlords, including sharing of pricing and occupancy information, information about a particular landlord’s acceptance of RealPage’s recommendations, and the parameters applied by a particular landlord in using the software’s “auto-accept” feature. These allegations provide an element often found lacking in a “hub and spoke” conspiracy: a rim connecting the spokes.

Software Algorithms Recommending—Not Mandating—Prices to Users

A different outcome was reached in Gibson v. Cendyn Group, LLC, where an algorithm’s price recommendations were not followed as consistently. In June 2024, a Nevada federal court dismissed a putative consumer class action alleging that Las Vegas hotel operators unlawfully delegated independent decision-making to a software algorithm, which then recommended prices for hotel rooms based on public information regarding competitors’ pricing. The court held that the plaintiffs had failed to plausibly allege a tacit agreement among the hotels because the hotels “are not required to and often do not accept the pricing recommendations generated by” the algorithm.

Like the court in the private RealPage litigation, the court in Gibson focused on the extent to which the algorithm’s pricing recommendations were alleged to be mandatory. In Gibson, however, the court found they were not. Therefore, the court reasoned, “[i]t accordingly cannot be that the vertical arrangements between Cendyn and Hotel Defendants to license GuestRev and GroupRev restrain trade.”

But discretion was not the only factor considered in Gibson. In addition to the non-mandatory nature of the price recommendations, the court in Gibson also noted that the price recommendations were based on publicly available information, stating that “consulting your competitors’ public rates to determine how to price your hotel room—without more—does not violate the Sherman Act.” The plaintiffs argued that even if confidential information was not exchanged directly between competitors, their allegations created an inference that the algorithms improved over time by running on confidential information provided by each of the competitors. The court held, however, that even if this occurred, it would not constitute a tacit agreement to fix prices.

In September 2024, a federal court in New Jersey similarly dismissed with prejudice a complaint brought by putative class action plaintiffs against owners and operators of various Atlantic City casino-hotels. In Cornish-Adebiyi v. Caesars Entertainment, Inc., the court rejected the plaintiffs’ allegation that casino-hotels engaged in a conspiracy to artificially fix prices through their “knowing and purposeful shared use” of the algorithmic software. In addition to the pricing authority that the hotels “continued to retain and exercise,” the court found that the plaintiffs failed to allege an illegal price-fixing conspiracy through the “knowing” and “purposeful” use of the software algorithm. The court cited the absence of any allegation that the hotels’ “proprietary data are pooled or otherwise comingled into a common dataset against which the algorithm runs.” In other words, the court concluded, “the pricing recommendations offered to each Casino-Hotel individually are not based on a pool of confidential competitor data.”

Both Gibson and Cornish-Adebiyi suggest that there may be no Sherman Act violation unless the algorithm pools competitors’ non-public information in making its recommendations. Both cases, however, are now pending appeal to the Ninth and Third Circuits, respectively. These courts are poised to become the first federal appellate courts to weigh in on algorithmic price-setting, and their decisions may provide more robust guidance.

Other courts may reach different conclusions from those reached to date. But collectively, the decisions to date suggest, at a minimum, that liability may follow where (i) adoption of most or all of an algorithm’s pricing recommendations is mandatory or agreed among users or (ii) the algorithm pools its users’ non-public information in making pricing recommendations. What is less clear is the permissibility of the use of confidential information merely to train the algorithm.

FTC and DOJ View: Price Discretion Does Not Doom Algorithmic Price Fixing Claim

The enforcement agencies, in their statements of interest filed in the private cases, have taken a less nuanced position: that algorithmic pricing is a per se violation of Section 1 of the Sherman Act, and there is no limitation simply because the recommended prices are non-binding. The FTC and DOJ have argued that the violation is the agreement itself, and that the frequency with which the agreement is followed is irrelevant. In their view, the competitors’ retention of price discretion does not doom a price-fixing claim. They liken the algorithmic price to an agreement to fix advertised list prices, arguing that such an agreement would be unlawful even if the conspirators sometimes deviate from the list price—and that the use of recommendations from a common algorithm is similarly unlawful. It remains to be seen whether the agencies will continue to take such a forceful position under the Trump Administration.

Conclusion

With the upcoming appeals in Gibson and Cornish-Adebiyi, two federal appellate courts may weigh in on algorithmic price fixing sometime this year. Even with such rulings, however, the larger question will remain: whether algorithms—which, using artificial intelligence, can learn from experience and experimentation—are capable of tacitly colluding absent any active participation, express agreement, or even an invitation and subsequent participation from competing firms. While Sherman Act Section 1 violations have long required a meeting of human minds, courts are about to find themselves in the position of applying Section 1 to non-sentient artificial intelligence models that can learn to collude with minimal, if any, human intervention.

Eleven attorneys general sue asset managers, alleging ESG investment standards raise coal prices and violate antitrust laws

The ideological battle over the role of Environmental, Social and Governance (ESG) investment standards intensified last week, as the Texas Attorney General and 10 other Attorneys General sued three asset management companies, alleging that ESG strategies pursued by these companies in relation to coal production violated federal and state antitrust laws.

ESG is a set of standards or ideals that socially conscious investors seek out when choosing where to place their money. Over the past four years, ESG investment standards have become increasingly controversial. Some liberal and progressive advocates have sought to pressure large investors to consider issues such as racial justice, labor policies, and environmental stewardship when making investments in companies. At the same time, some conservative critics have opposed ESG as an attempt to inject ideology into investment decisions at the expense of shareholder value.

Allegations and Defenses

The tension is on full display in the Texas complaint. The complaint alleges that the three asset management companies—BlackRock, Vanguard, and State Street—violated Section 7 of the Clayton Act by acquiring minority interests in multiple competing coal-producing companies and then using governance rights (such as proxy votes) to influence the coal companies to reduce output in the name of environmental stewardship. The complaint alleges that this output reduction, in turn, raised the price of coal directly and consumer electric bills indirectly. The states claim that the agreement was reached through organizations committed to reducing carbon output, such as Climate Action 100+ and the Net Zero Asset Managers Initiative.

The investment firms likely will raise several defenses. Among other things, they likely will argue that the states have not plausibly alleged an agreement among the investment companies. The complaint relies heavily on public statements and on the involvement of the investment companies in industry organizations, but the law imposes a high pleading burden on Section 1 plaintiffs, and the absence of a plausible economic motive may prove problematic for the plaintiffs. The companies will likely also challenge the plaintiffs’ allegations of anticompetitive effect. The plaintiffs appear to allege that the agreement had the effect of increasing the price of coal, but given the nature of the alleged agreement, if proven, it likely would be assessed under the Rule of Reason. This means the alleged agreement’s pro-competitive justifications (disregarding any potential environmental benefits) would be weighed against the anti-competitive effects, and these types of cases are often difficult for plaintiffs to prove.

Similarly, the complaint’s Section 7 challenge to the acquisition of a minority interest by different investors in different coal companies may be difficult to prove. The companies will likely point out that the investors are not alleged to have controlled any of the acquired companies, either individually or collectively, and if accepted, the claims would represent an expansion of the antitrust laws. Under either claim, any economic analysis of a but-for world would be complicated by competing industry trends and regulations.

Broader Implications for ESG and Antitrust

Certainly, it is possible to imagine ESG efforts that would raise significant antitrust concerns, given that ESG goals often require industry collaboration. Notwithstanding the best intentions, case law has held that an effort to achieve social good through collusion or unlawful agreements does not provide a defense, let alone immunity, to an antitrust challenge. Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679 (1978) (rejecting the argument that safety concerns justified an agreement among engineers not to quote prices before being hired); In Re Processed Egg Prod. Antitrust Litig., 851 F. Supp. 2d 867, 877 (E.D. Pa. 2012) (industry agreement to improve the quality of life for animals may be alleged to increase prices or reduce output).

Government regulation may be an answer when an industry-wide agreement is needed to achieve a societal goal, but it is an imperfect one. The Noerr-Pennington doctrine holds that anticompetitive effects caused by petitioning the government are immune from antitrust liability. The state action doctrine holds that state actors, including state regulatory boards dominated by industry participants, are generally not subject to antitrust scrutiny. A regulator may choose standards that are not ideal for the industry, and unlike voluntary standards, companies cannot opt out of government-enforced regulations.

The heightened scrutiny of ESG means that any ESG effort must be approached with great care and sensitivity toward antitrust. Trade organizations can be alleged to be conduits for sharing sensitive information, and statements about intentions to adhere to policies or standards can be interpreted as signals or invitations to collude, even when made publicly. Accordingly, the compliance rules applicable to trade associations and public announcements of intentions should be observed diligently when the topic is ESG.

Conclusion: A Case to Watch

Finally, while ESG aspirations have not yet been tested as a defense to antitrust claims, there is no basis in antitrust law for targeting ESG goals as inherently suspect or deserving of greater antitrust scrutiny than other industry self-regulatory efforts. Given the controversial nature of ESG, this case will certainly be followed closely.

The United States antitrust laws generally are designed to curtail anticompetitive behavior that has or is expected to have a significant impact on competition. However, the antitrust laws also create a procedural framework for enforcing these rules. A few recent cases serve as a reminder that violations of those procedures themselves can result in substantial fines, irrespective of any actual or expected impact on competition.

The standard rubric for analyzing most antitrust cases is the so-called “Rule of Reason” analysis, which weighs the potential anticompetitive effects of an agreement against the pro-competitive benefits that it may bring. A similar analysis is applied to merger review, which assesses whether a proposed transaction would “substantially lessen competition,” and to adjudication of monopolization claims, which assesses whether the conduct alleged will “exclude competition” in some relevant market. Even price fixing and similar agreements that are deemed “per se” unlawful are so designated because a court has determined that such a restraint is so inherently anticompetitive that no further analysis is required.

The common thread in these antitrust violations is economic in nature: Does the condemned activity actually harm competition?

However, there are elements of the antitrust statutes that do not turn on economic analysis, where violations come with stiff penalties: in some cases, more than $50,000 per day. The U.S. Federal Trade Commission and U.S. Department of Justice have stepped up enforcement of these statutory requirements.

Active Investing Requires a Filing

On September 18, 2024, the FTC issued a consent decree in which GameStop CEO Ryan Cohen agreed to pay $985,320 to settle charges that his acquisition of Wells Fargo & Company stock violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). The HSR Act provides that if parties are engaged in a merger or acquisition involving more than $119.5 million (the threshold is adjusted annually), they must report the transaction to the FTC and DOJ and wait a certain period of time before closing it. This rule even applies to some purchases of stock where the acquirer obtains less than a controlling position. In most cases, the mere purchase of stock by a capitalist or investor does not raise antitrust concerns, and the HSR Act includes an exemption from reporting for purely passive investors who own less than 10 percent of the stock of a company. However, if a passive investor becomes active, then the transaction must be reported. And those lines between active and passive can be thin.

Such was the case with Cohen. His 2018 acquisition of Wells Fargo stock passed the monetary threshold for reporting but resulted in him holding less than 10 percent of the company shares. However, the FTC alleged in its complaint that Cohen did not qualify for the investment-only exemption from the HSR Act because he intended to influence the operations of the business and was not merely a passive investor. He allegedly asked to be placed on the Board of Directors, maintained periodic communications with the CEO for two years after the stock acquisition, and described how he might help Wells Fargo improve its operations, technology, and mobile app. This was enough for the FTC to conclude that Cohen was not making the purchase for investment purposes only. Cohen made a corrective HSR filing in 2021, and his acquisition was not challenged. Although his fine represented a substantial downward departure from the maximum daily fine that he could have incurred between his 2018 share purchase and his 2021 corrective filing, the enforcement demonstrates the FTC’s vigilance in enforcing the HSR statute regardless of the economic impact of the violation.

No Jumping the HSR Gun

On August 5, 2024, the DOJ brought a complaint against Legends Hospitality Parent Holdings, LLC, a venue services company, related to its acquisition of ASM Global, Inc. (“ASM”), a venue management company. The DOJ conducted a thorough review of the transaction and even issued a “Second Request,” extending the review for nearly six months, ultimately deciding not to challenge the merger. However, after the waiting period expired, the DOJ filed a complaint and consent decree, charging Legends with gun jumping.

The HSR Act prohibits companies from integrating prior to the end of the waiting period, regardless of whether there is a competitive effect. Integrating prior to closing is referred to as “gun jumping,” and can occur when the acquiring company starts exercising control over the target. While there can be some modest coordinated planning between the buyer and the target while the waiting period is in effect, the line is again fairly thin.

According to the complaint, during the waiting period, Legends allowed ASM to continue managing a venue even after Legends won a bid to manage it. Legends also sought to prevent the two companies from making competing bids for a management contract, and to jointly bid on another opportunity. None of this conduct was deemed to be a substantive antitrust violation, but the DOJ alleged that the coordination between Legends and ASM constituted Legends effectively taking control of ASM before the waiting period expired. Legends agreed to settle the case for $3.5 million.

No Interlocking Directorates

The agencies also have placed a greater emphasis on enforcing interlocking directorates, which are prohibited by Section 8 of the Clayton Act. Section 8 prohibits the same person from serving on boards of companies that compete with one another, except in limited circumstances where that person’s involvement in one of the companies is de minimis. The agencies have adopted a so-called “deputization” theory, which contends that if the same firm appoints different people to competing boards, it is as if the same person were serving on both boards. In 2023, the FTC reached a consent decree related to the partial acquisition of EQT Corporation by private equity firm Quantum Energy Partners. Quantum had a position in competing pipeline companies, and Quantum agreed as part of the consent decree not to serve on the board of the top seven Appalachian Basin natural gas companies without FTC approval. Similarly, as a result of DOJ investigations, two Pinterest directors resigned from the board of Nextdoor in 2023, and the DOJ in October 2022 issued a press release taking credit for the resignation of seven board members from five companies across multiple industries. No Sherman Act suit was ever filed in any of these cases, and there were never allegations of substantive antitrust violations.

The lesson from these recent decisions? While antitrust violations usually involve an adverse economic effect to find a violation, there are exceptions. Cases where no evidence of effect is required are less complicated and easier to win, and the agencies will continue to vigorously enforce them. Companies should consult with antitrust counsel as appropriate to ensure they are not violating these rules and potentially subjecting themselves to significant penalties.

On August 20, 2024, Judge Ada Brown of the U.S. District Court for the Northern District of Texas granted a nationwide injunction setting aside the Federal Trade Commission’s (“FTC”) rule banning most non-compete clauses in employment contracts. As a result, the rule will not take effect on September 4, 2024 as scheduled, and businesses can put on hold their plans to notify employees and revise employment agreements to comply with the rule. However, multiple lawsuits concerning the rule remain pending, one of which has reached a contradictory preliminary result. Companies can therefore expect continuing litigation and appeals before the rule’s fate is decided.

The case in Texas is brought by Ryan LLC, a tax services and software provider, and several business groups led by the U.S. Chamber of Commerce, which were permitted to intervene as plaintiffs after their separate challenge was stayed to allow Ryan’s lawsuit to proceed. The plaintiffs allege that the non-compete ban, announced by the FTC in April, exceeds the FTC’s statutory authority, and that any statutory authority the FTC might have to adopt the ban is an unconstitutional delegation of legislative power.

After initially issuing a preliminary injunction in July that enjoined enforcement of the rule only as to the specific plaintiffs in the suit, Judge Brown modified the scope of her ruling at the summary judgment stage to extend to all impacted parties nationwide. Judge Brown held that the rule exceeds the FTC’s statutory authority because Congress, through the FTC Act, granted the agency authority to enact only procedural rules concerning unfair methods of competition, and not substantive rules. Additionally, Judge Brown held that the rule is arbitrary and capricious given its breadth in applying to almost all non-compete clauses.

The rule would prohibit employers from entering into, attempting to enter into, enforcing, or attempting to enforce a non-compete clause, which is defined broadly under the rule. Existing non-compete clauses for senior executives (workers who earn more than $151,164 annually and are in policy-making positions) would be allowed to remain in force, and a handful of other exceptions would apply (including, for example, non-competes entered into pursuant to the bona fide sale of a business entity, or those involving a franchise in the context of a franchisor-franchisee relationship). However, after the rule takes effect, all new non-compete clauses that do not fall under these exceptions would be prohibited, including for senior executives.

Employers would not be required to formally rescind non-compete clauses that are rendered unenforceable by the rule, but they would be required to provide notice to workers (other than senior executives) who are bound by existing non-compete clauses that those clauses will not be enforced.

Other lawsuits challenging the rule remain pending. In ATS Tree Services, LLC v. FTC, Judge Kelley B. Hodge of the U.S. District Court for the Eastern District of Pennsylvania declined in July to grant the plaintiff’s requested preliminary injunction to stay enforcement of the rule, concluding that the plaintiff was unlikely to succeed on the merits. The case is scheduled to move forward with summary judgment briefing this fall, should the plaintiff elect to proceed with the case in light of Judge Brown’s ruling. More recently, a judge of the U.S. District Court for the Middle District of Florida granted a preliminary injunction in Properties of the Villages, Inc. v. FTC, although that order limited the effect of the injunction to the plaintiff in the case.

While the FTC has not yet formally responded to the Texas decision, an appeal seems likely. Particularly given the conflicting decisions in different courts, it is all but certain that the validity of the rule ultimately will be decided at the appellate level, and well after September 4. For the moment, however, businesses can put their preparations for compliance with the rule on hold while they await further developments in the appellate process.

The rumors of the death of price discrimination enforcement may have been greatly exaggerated. The Robinson-Patman Act (“RPA”) (15 U.S.C. §13), enacted in 1936, prohibits price discrimination by producers and resellers of goods between similarly situated purchasers. Government enforcement of the RPA has been infrequent during the last half-century, and non-existent since 2000. In 2007, the Antitrust Modernization Commission, a bipartisan group established by Congress to review federal antitrust laws, recommended repeal of the RPA, concluding that it disincentivized discounting and thereby harmed consumer welfare.

RPA enforcement, however, seems to be making a comeback. Antitrust enforcement under the Biden Administration has largely rejected the “consumer welfare standard”—which equates competition with harm to consumers, typically in the form of increased prices—in favor of a broader focus on excessive consolidation of private power and its longer-term economic implications. The RPA, enacted to protect smaller retailers from a competitive advantage that benefited chain stores and other larger competitors able to obtain lower wholesale prices, is consistent with this approach.

Recent press reports suggest the Federal Trade Commission (FTC) may be on the verge of an RPA enforcement action. These reports follow public statements by both FTC Chair Lina Khan and Commissioner Alvaro Bedoya emphasizing the RPA and indications that the FTC has opened at least two RPA investigations under Khan’s leadership. In March 2024, a group of 16 lawmakers, including some of the most prominent supporters of the Biden Administration’s enforcement agenda, urged the FTC to “revive enforcement” of the RPA in connection with consolidation and high prices in the food industry.

Moreover, the RPA remains enforceable through private actions. While such actions have been rare, and successful actions even more so, a federal court in California last month affirmed a jury verdict in favor of wholesalers of eye drops against distributors who were found to have sold the drops to Costco and Sam’s Club at a lower price than the plaintiffs received. In addition to the jury’s damages award, the court granted injunctive relief. L.A. Int’l Corp. v. Prestige Brands Holdings, Inc., 2024 WL 2272384 (C.D. Cal. May 20, 2024). Revived agency enforcement would likely lead to an increase in private actions as well.

Accordingly, businesses that sell and purchase goods should be familiar with the key provisions of the RPA:

• The RPA prohibits discrimination in price between at least two consummated sales to different purchasers. Mere offers to sell at a particular price or refusals to sell at all to a particular purchaser do not trigger RPA liability. Moreover, the RPA is limited to “commodities,” i.e., tangible goods sold for use, consumption, or resale within the United States. Services are excluded from the RPA’s ambit.
• The two sales must be reasonably contemporaneous, and the goods involved must be of “like grade and quality.”
• At least one of the sales must be in interstate commerce, i.e., across state lines.
• Prohibited discrimination includes the furnishing of services or facilities in connection with the sale of the commodity; any such services or facilities must be made available to all purchasers on proportionally equal terms. If a seller compensates its customer for services or facilities furnished in connection with the sale, such as marketing or promotion, it must make those payments available on proportionally equal terms to other purchasers that compete to distribute the same product.
• However, the RPA does not prohibit price differentials that merely allow for the differing methods or quantities in which the goods are sold or delivered to the respective purchasers or that result from a response to changing conditions affecting the saleability of goods (such as deterioration of perishable goods or obsolescence of seasonal goods).
• And there is no actionable price discrimination if the lower price was functionally available to the disfavored purchaser, provided that the disfavored purchaser was aware of the availability of the lower price and that such availability was not merely theoretical. For example, a volume-based discount might be facially available to all customers, but if the requisite volume threshold is higher than certain purchasers can realistically meet, it may not be considered functionally available to all purchasers.
• Unlike other antitrust statutes, the RPA does not require a showing of marketwide injury to competition. Rather, it is sufficient to show that the discrimination harmed a company’s ability to compete with the grantor of the discriminatory price, any person who knowingly received the benefit of the discriminatory price, or with customers of either. While the competitive injury ordinarily will occur at the buyer’s level, the RPA also permits claims for harm to competition between sellers, between customers of the favored and disfavored purchasers, or between customers even further downstream.
• A seller who is alleged to have discriminated in violation of the RPA may establish, as an affirmative defense, that it granted a lower price to the favored purchaser in order to meet (but not beat) the price of a competitor.
• Liability is not limited to sellers; the RPA also imposes liability on purchasers who knowingly induce or receive a favorably discriminatory price.
• A standalone provision of the RPA prohibits parties to a sale from granting or receiving any compensation, or any allowance or discount in lieu of compensation, except for services rendered.

The RPA is an oft-overlooked component of antitrust compliance, largely due to its infrequent enforcement. However, every company’s antitrust compliance program should include a review of its relationships with customers and suppliers to ensure that its pricing plans and pricing decisions comply with the RPA and that the reasons for any deviations from price, such as meeting competition, are well documented.

The Antitrust Division of the U.S. Department of Justice (“DOJ”) last week announced the formation of a new task force to guide its enforcement strategy and policy approach to health care, with an apparent focus on industry consolidation and collusive behavior.

According to the DOJ announcement released on May 9, 2024, the Task Force on Health Care Monopolies and Collusion (“HCMC”) will consider “widespread competition concerns shared by patients, health care professionals, businesses and entrepreneurs.” Issues to be addressed include payer-provider consolidation, serial acquisitions, labor and quality of care, medical billing, health care information technology services, and access to and use of health care data. The task force will include both civil and criminal enforcement attorneys, as well as economists, industry experts, technologists, data scientists, investigators, and policy advisors from across the Antitrust Division’s sections and offices.

The announcement of the HCMC is unsurprising in many respects. The health care industry has long been a major target of antitrust enforcement, and the Biden DOJ has previously signaled its continued focus on health care competition. In December 2022, the Antitrust Division entered into a formal collaboration with the Office of the Inspector General of the Department of Health and Human Services aimed at preventing collusion and promoting competition in health care markets. And just last month, the Antitrust Division launched an online portal for the public to report potentially anticompetitive health care practices.

Moreover, there is precedent for efforts to consolidate antitrust enforcement expertise in complex industries. Last week’s announcement is reminiscent of the Federal Trade Commission’s 2019 formation of a task force focused on competition in technology markets. Notably, like that task force, the HCMC appears to be drawing on the agency’s current resources rather than hiring additional staff, suggesting that the Antitrust Division’s focus is on more efficient, and not necessarily broader, enforcement.

In a National Law Journal article about the HCMC, Melissa H. Maxman, Washington, D.C. Office Managing Partner, was quoted as noting that there are smaller health care companies that will be relieved to be examined under an enforcement approach that is targeted at their specific factual situations. “Task forces sometimes can be inefficient,” she added, “[b]ut if ever there were a need for one, it would be in health care competition.” While the impact of the HCMC remains to be seen, the Antitrust Division’s approach has the potential to facilitate a better informed and more comprehensive analysis of a market that poses unique regulatory and enforcement challenges.

The Cohen & Gresser antitrust team has extensive experience representing businesses in the health care industry, including physicians, pharmacies, and manufacturers. If you have any questions about potential areas of focus for the HCMC, please contact either of the authors of this article.

Last month, the Department of Justice Antitrust Division and the Federal Trade Commission (collectively, the Agencies) released the 2023 Merger Guidelines. The Guidelines are the latest iteration of a guidance document published by the Agencies since 1968, which has been revised numerous times over the years.

In this C&G Client Alert, Ronald Wick, John Roberti, and Derek Jackson write that the newest Guidelines articulate a more comprehensive and aggressive approach to merger enforcement than contemplated in recent iterations, and explore the most significant changes.

On June 27, the Federal Trade Commission announced that it is proposing changes to its premerger filing requirements under the Hart-Scott-Rodino Act. The proposed changes, which would increase the volume of information required from parties submitting an initial HSR filing, have generated a range of reactions regarding their likely impact. In this client alert, Ronald F. Wick, Melissa Maxman, John Roberti, and Alisa Lu examine the FTC’s proposal and its potential effect on the premerger review process.

The United States Federal Trade Commission and the Department of Justice recently took actions that signal their intent to increase antitrust enforcement, particularly in the private equity sector.

• Last month, the FTC released a new policy statement noting its broadened view of the scope of its power under Section 5 of the FTC Act, signaling that it may find certain private equity rollups violate its interpretation.
• The FTC policy statement came on the heels of a DOJ announcement that it would be increasing the enforcement of Section 8 of the Clayton Act.
• These developments underscore the need for private equity companies to take particular care in observing U.S. competition laws, as there will be greater scrutiny of private equity firms.

In this client alert, Melissa Maxman, Ronald Wick, and Alisa Lu analyze what these actions mean for the future of antitrust enforcement in the private equity sector and provide insight into how PE firms can prepare themselves for continued additional scrutiny.

Twice in the past month, the Federal Trade Commission (FTC) unanimously announced consent decrees that are a strong signal of the current Commission’s intent to investigate private equity transactions aggressively.

• The consent decrees allow the private equity fund JAB Consumer Partners SCA SICAR's National Veterinary Associates to close two recent deals with some divestitures but also impose a series of strict prior notice requirements that are unprecedented in their breadth.
• The announcements come a month after the confirmation of a fifth commissioner that gave the Democrats a 3-2 majority on the FTC.
• As long as Democrats control the majority, private equity firms should be prepared for additional scrutiny and be cognizant of other competition issues that may impact them.

In this client alert, John Roberti, Melissa Maxman, Ronald Wick, David Lisner, and Derek Jackson discuss the potential implications of these rulings for private equity firms and offer insight into how PE firms can be more cognizant of competition and antitrust compliance issues that may pose a potential risk moving forward.  

The Department of Justice’s Antitrust Division is unlikely to be deterred by last week’s trial setbacks.

• Juries acquitted two sets of defendants of antitrust claims involving labor markets.
• The Antitrust Division will continue to pursue labor cases and has three more trials pending.
• The Division is willing to accept some losses in trials as a cost of taking a more aggressive enforcement position.

In this client alert, the authors summarize the recent setbacks, discuss the Division’s labor initiative, and conclude that more aggressive enforcement is on its way.

In this C&G Client Alert, Melissa H Maxman, Ronald F Wick, Erica Lai, and Danielle Morello discuss the U.S. Department of Justice's (DOJ) announcement that it will now consider crediting companies for “robust” compliance programs at the charging stage of criminal antitrust investigations. This signals a reversal of the DOJ’s longstanding policy of allowing substantial penalty reductions only for “early-in” whistleblowers.

Ronald F Wick discusses the implications of the Federal Trade Commission's plan to create a new task force focused on monitoring competition in U.S. technology markets in his latest C&G Client Alert. 

Melissa H Maxman and Ronald F Wick examine the impact of the Leegin Creative Leather Products Inc. v PSKS Inc. ruling a decade after the decision.

In an upcoming program for Lawline, Melissa H Maxman and Ronald F Wick explore NCAA v. Alston, the first comprehensive case addressing the NCAA's scope of authority in more than 35 years.

In June 2021, the Supreme Court of the United States unanimously held that the National Collegiate Athletic Association ("NCAA") has violated the Sherman Act with its rules limiting the amount of education-related compensation colleges and universities can provide to student-athletes. However, the Court did not define what constitutes education-related compensation, and the NCAA still has the ability to define the outer boundaries of that term.

This webinar will consider NCAA v. Alston as it relates to the Sherman Act and the implications the Court's decision will have.

Ron Wick moderated this second installment of the ABA Section of Antitrust Law's Class Action Series. The program offered insights into best practices in presenting and rebutting economic evidence, including retaining and working with experts; tactical considerations and evidentiary issues unique to class actions; and the impact of the U.S. Supreme Court's most recent class certification decisions on antitrust class actions.

• Trial and Evidentiary changes:
  • Economic Analysis: The relevance of traditional market metrics given the new business environment.
  • Proof issues: Groundbreaking opinions in the cases of Zubulake v. UBS Warburg, addressing discovery, trial, and evidentiary issues regarding metadata, data sampling, and related electronic issues and in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Amer. Secs., further demonstrates that discovery is now firmly in the electronic age.