John Roberti
Partner, Washington, D.C.
John Roberti
Partner, Washington, D.C.
John Roberti is a partner in Cohen & Gresser’s Washington, D.C. office and a member of the firm’s Litigation and Antitrust & Competition groups.
John has over 30 years of experience advising clients on a variety of complex antitrust issues, including high-profile litigation and investigations, and is an alumnus of the Federal Trade Commission. He represents plaintiffs, defendants, and third parties in all manner of antitrust claims, including before the Federal Trade Commission and the U.S. Department of Justice. He also advises corporate clients on building and evaluating antitrust compliance programs.
John is regularly recognized as a leading antitrust lawyer in Chambers USA, The Legal 500, Who’s Who Legal Competition, Super Lawyers, and by Benchmark Litigation as a Litigation Star. He has also been recognized by Lawdragon in the publication’s 2023 and 2024 lists of 500 Leading Litigators in America. The Legal 500 describes John as a “class action heavyweight” and notes that he “provides extremely practical hands-on competition law advice. Rare in the industry!” Client and peer commentary describes John as a “sharp guy with an impressive track record in the area” and notes that he’s “always finding the perfect balance between pragmatic solutions while sticking to ethics and high-value standards.” John “not only understands the technical complexities of the field, but his experience allows him to apply practical skills in forecasting, at the inception of the case, the probable outcome and developing a game plan to achieve or better it.” It has been further noted that “his work is very creative, he’s a good thinker and he’s good with clients” and that he “provides practical, to-the-point, business-savvy advice. He knows what he’s talking about, takes risk appetite into account and is simply a great person to work with.”
John is the current Finance Officer for the American Bar Association Antitrust Law Section. John founded and previously served as host of the Antitrust Section’s Podcast, Our Curious Amalgam, from 2019-2022. John also is a Fellow of the American Bar Foundation and serves on non-profit boards supporting people with special needs, including CHAT (formerly Center for Speech and Language Disorders), where he serves as the Board Chair, and Sports Plus, Inc.
John Roberti is a partner in Cohen & Gresser’s Washington, D.C. office and a member of the firm’s Litigation and Antitrust & Competition groups.…
Education
New York University School of Law (J.D., 1994); Brown University (B.A., 1991)
Bar Admissions
District of Columbia; New York State
Activities and Affiliations
Finance Officer, American Bar Association (Antitrust Law Section Leader)
Fellow, American Bar Foundation
Board Chair, CHAT (formerly Center for Speech and Language Disorders)
Board Member, Sports Plus, Inc.
Litigation
Represent a group of consumers in mass arbitration related to application of an MFN by a dominant online platform.
Represent a pharmaceuticals company in regard to an alleged pay for delay scheme in In Re Namenda MDL.
Represent an electronics manufacturer with regard to a multi- jurisdictional litigation in In Re Lithium Ion Batteries MDL.
Represent an electronics manufacturer regarding multi- jurisdictional litigation in In Re Cathode Ray Tubes MDL.
Represent a seafood company concerning multi-jurisdictional litigation in In Re Packaged Seafood MDL.
Represent the world’s largest auto parts manufacturer in multi-jurisdictional litigation in In Re Auto Parts MDL.
Read MoreGovernment Investigations
Represent an innovative technology company as a complainant and witness concerning anticompetitive conduct by a competitor.
Represent an association of health care providers concerning anticompetitive conduct by payers.
Represent an entertainment company concerning an investigation by the Federal Trade Commission.
Represent a global chemical company concerning their criminal and civil antitrust government investigations in the United States.
Represent an individual concerning a criminal antitrust investigation involving alleged bid rigging in the energy sector.
Compliance and Advice
Represent a privately held retail and energy company regarding the acquisition of a competitor.
Advised a direct marketing company on compliance with consumer protection and fair competition laws.
Represent a large private company with regard to its acquisition of a distributor.
Advised a retail company with regard to compliance and information sharing associated with a joint venture involving a competitor.
Represent a major manufacturing company to design and build and global compliance program for competition, with a particular focus on both cartel and unilateral conduct.
Provide advice to a major US-based technology company regarding the use of data to predict compliance risks and needs.
The “Stars” featured in the guide are recognized through Benchmark Litigation’s independent research as some of the foremost litigation practitioners in the United States. The selection process involves in-depth interviews with litigators, dispute resolution experts, and their clients, along with a thorough review of significant cases and firm developments. Lawyers named as “Stars” are highly respected by their peers and stand out for their impressive case track records and positive client feedback.
Since its inception in 2008, Benchmark Litigation has been the only publication on the market to focus exclusively on litigation in the United States.
- 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.
John has over 25 years of experience advising clients on a variety of complex antitrust issues, including high-profile litigation and investigations, and is an alumnus of the Federal Trade Commission. He is a leading cartel class action lawyer and represents both plaintiffs and defendants in all manners of antitrust claims.
Co-published with Global Competition Review, Who's Who Legal: Competition is a comprehensive guide to the leading competition lawyers around the world.
Who’s Who Legal is an organization that identifies the leading legal practitioners and consulting experts in business law based on comprehensive, independent research. The individuals featured in the guide obtained the largest number of nominations from peers, corporate counsel, and other market sources.
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.
The firm’s White Collar Defense & Regulation practice is once again ranked in the guide, maintaining its position as one of the “Elite” firms in the Litigation: White-Collar Crime & Government Investigations category. Chambers recognized the firm’s “strong regulatory investigations and enforcement practice,” specifically highlighting its “expert financial services practice which offers particular strengths in FINRA and SEC proceedings.” Client feedback praises the team for its “strong expertise with the DOJ and with prosecutors.”
The Commercial Litigation practice is also ranked in the Litigation: General Commercial: Highly Regarded category, receiving high praise from clients for having a “strong understanding of the client’s needs” and for being “smart, creative and willing to try difficult strategies and aggressive approaches.”
The firm’s Antitrust & Competition practice is ranked in the Antitrust category, with Chambers noting that “Cohen & Gresser houses a strong practice across a range of antitrust disputes [including] sophisticated litigation.” Client feedback praises the team for being “creative and responsive” and having “strong knowledge of antitrust class actions.”
Partners throughout Cohen & Gresser’s US practices also earned individual rankings in the following categories:
Antitrust: Litigation Specialists (DC)
Litigation: General Commercial (NY)
Litigation: Securities (NY)
Litigation: White-Collar Crime & Government Investigations (NY)
Chambers is the world’s leading legal data and analytics provider, highlighting the top lawyers and law firms across the USA based on in-depth research that includes reference feedback, client satisfaction, reputation in the market, peer knowledge, and other discreet independent market sources.
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
The Competition report “brings together the insight, expertise, and wisdom of some of the world’s foremost competition lawyers and economists in a single report.” John joins a distinguished group of lawyers and other professionals who, according to WWL, “are worthy of special mention owing not only to their vast expertise and experience advising on some of the world’s most significant and cutting-edge legal matters, but also their ability to innovate, inspire, and go above and beyond to deliver for their clients.”
The Commercial Litigation report “provides an in-depth analysis of the foremost litigators around the world who are singled out for their outstanding ability within this contentious context.” Tom is included among “standout practitioners in the litigation field” that WWL identified as future leaders in the market.
Who’s Who Legal is an organization that identifies the leading legal practitioners and consulting experts in business law based on comprehensive, independent research. The individuals featured in the guide obtained the largest number of nominations from peers, corporate counsel, and other market sources.
Since its inception in 2008, Benchmark Litigation has been the only publication on the market to focus exclusively on litigation in the United States.
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.
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.
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.
Benchmark Litigation provides law firm and lawyer rankings based on extensive interviews with litigators, dispute resolution specialists and their clients, as well as analysis of the market’s most important cases and firm developments.
Roberti joins a distinguished group of lawyers and other professionals who, according to WWL, “are worthy of special mention owing not only to their vast expertise and experience advising on some of the world’s most significant and cutting-edge legal matters, but also their ability to innovate, inspire, and go above and beyond to deliver for their clients.” Cohen & Gresser is one of only a handful of midsize law firms in the U.S. to be recognized in the Competition category.
Who’s Who Legal is an organization that identifies the foremost legal practitioners and consulting experts in business law based on comprehensive, independent research. The individuals featured in the guide obtained the largest number of nominations from peers, corporate counsel, and other market sources.
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
Antitrust: Civil Litigation/Class Actions: Defense
- Melissa H Maxman
- John Roberti
- Ronald F Wick
- Jonathan S Abernethy
- Jason Brown
- Mark S Cohen
- S Gale Dick
- Jeffrey I Lang
- Melissa H Maxman
- Reggie Schafer
- Mark S Cohen
- S Gale Dick
- Lawrence T Gresser
- Melissa H Maxman
- Daniel H Tabak
- Jonathan S Abernethy
- Mark S Cohen
- S Gale Dick
- Lawrence T Gresser
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.”
C&G’s Commercial Litigation practice is once again ranked in Litigation: General Commercial: Highly Regarded. The practice is recognized for being “regularly sought after by individuals and corporates for representation in securities class actions and derivative matters, as well as various shareholder and product litigation.” Clients note that the team is comprised of “litigators that you don’t want to mess with” and is one that “you can rely on.”
C&G’s White Collar Defense & Regulation practice is ranked in Chambers USA for the ninth consecutive year. The practice maintains its position as one of the “Elite” firms in Litigation: White-Collar Crime & Government Investigations. Chambers highlights the practice’s “talented pool of litigators with a wealth of government experience” and its “international presence” as key reasons for its continued ranking. Commentary from the guide notes that the practice is “a substantial player in the New York white-collar world” that has “burst onto the scene with strong former prosecutors” and “good results for their clients.”
Ranked Departments:
- Litigation: General Commercial: Highly Regarded
- Litigation: White-Collar Crime & Government Investigations: The Elite
District of Columbia
Antitrust: Litigation Specialists
New York
Litigation: General Commercial
Litigation: Securities Litigation: White-Collar Crime & Government Investigations
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.
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.
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.
- 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.
- 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.
This interactive program will work through hypotheticals. Participants will learn about navigating practical ethical challenges in class litigation. A primary focus will be on settlements with individual class members, and questions addressed will include:
- What ethical restrictions are there, if any, on defense counsel’s efforts to settle with the named plaintiffs or absent class members on an individual basis?
- What ethical restrictions are there, if any, on plaintiffs’ counsel’s efforts to settle on behalf of individual named plaintiffs against defendants?
- What ethical restrictions are there, if any, on lawyers or non-lawyers seeking to represent absent class members in seeking recovery as part of a class settlement?
Recent years have shown a growing awareness of neurodiversity. The implications are significant for how lawyers interact with one another and their clients, and for judges deciding who is—and is not—well situated to serve as a representative in mass and class actions. This panel will consider these and related issues.
When Pharmacy Benefit Managers first entered, they were praised for negotiating with manufacturers and driving down prices. The FTC advocated against regulation and a number of mergers involving PBMs were cleared. In 2023, things changed. Legislation to regulate PBMs was introduced in both Congress and state legislatures. The FTC withdrew prior policy statements involving PBMs. State AGs filed lawsuits. And several antitrust class actions were brought. The panel discussed the evolution of PBMs in the health competition landscape, including what the future may bring.
The panel was moderated by Valarie C. Williams of Alston & Bird, and the other panelists included Charles G. Moore of White & Case, Allison B. Smith of Wilson Sonsini Goodrich & Rosati, and retired judge Vaughn R. Walker of Walker Nakamura ADR.
Other speaking topics covered throughout the presentation:
- Identifying traps and unexpected consequences in defining terms
- How much to standardize NDAs
- Key issues in drafting an NDA for an M&A deal.
John Roberti acted as moderator for this discussion.