Beating the Competition

Attorney Daniel Graulich discusses the Fourth Circuit's recent reversal of a bid-rigging conviction of a former manager of an aluminum products manufacturer for failure to state a per se antitrust offense. The Court held that the trial court's application of the per se rule failed to adequately consider the alleged scheme took place within the context of a “dual distribution” relationship among competing bidders, who also maintained an exclusive supplier relationship. As a result, the court held that the academic analysis on the competitive effects of the restraint should have been considered, and the economic evidence presented demonstrated the scheme would not invariably lead to anticompetitive effects (like higher prices). While DOJ is likely to pursue en banc review, the decision could have implications for how the DOJ proceeds with indictments involving parties that engage in dual distribution.

In a notable turn of events, the Federal Trade Commission (FTC) announced that it would abandon its in-house post-consummation challenge of the 2018 acquisition by Axon Enterprise, Inc. (“Axon”) of VieVu, LLC (“VieVu”). The FTC’s decision follows a recent adverse ruling from the Supreme Court, which held that parties are entitled to assert constitutional challenges against the FTC before being required to participate in its administrative proceedings.

In a statement announcing the decision, the FTC said it abandoned its administrative actions because of the “increasingly unlikely possibility of reaching a timely resolution of the antitrust merits that led to the filing of [the] complaint in the first place.” Following the Supreme Court’s decision, the FTC is likely to confront more challenges when pursuing enforcement actions—including, in particular, merger challenges—through its in-house administrative proceedings.

Justine Johnston, a competition and foreign investment lawyer Toronto and Dan Graulich an antitrust lawyer from Washington DC office, discuss recently announced changes related to the substantive review of mergers in the US and Canada.

In the latest episode of our North America Antitrust Group’s "Beating the Competition" podcast, partners Brian Burke and Mark Mandel discuss the critical issue of managing potential risks arising between parties to strategic M&A transactions during the period between signing and closing — particularly deals where protracted antitrust reviews are anticipated or possible.

In the latest episode of our North America Antitrust Group's "Beating the Competition" podcast, partners Brian Burke and Teisha Johnson discuss the potential implications of the forthcoming review by the US Supreme Court of the Federal Trade Commission's authority to obtain equitable monetary relief under Section 13(b) of the FTC Act.

Baker McKenzie's Brian Burke & Teisha Johnson

Baker McKenzie Partners Brian Burke and Luis Gomez discuss the recently abandoned deal between Sabre and Farelogix, which was blocked by the UK’s Competition Markets Authority (or CMA) shortly after the Antitrust Division of the US DOJ failed in its pursuit of the same outcome. Brian and Luis review the procedural aspects of the matter, including the CMA's aggressive assertion of jurisdiction, and discuss whether this matter may be a harbinger for a post-Brexit world.