Antitrust and Competition
Our Antitrust & Competition team helps clients solve problems on the full range of issues related to competition law, including government investigations, cartel defense, private civil litigation on behalf of both plaintiffs and defendants, and complicated merger clearance matters. Our deep knowledge of the antitrust agencies allows us to guide clients through the most complex investigations and issues. We also work seamlessly across offices and borders to help clients with multi-jurisdictional investigations. While our focus is always on practical solutions, we call on a team of experienced trial lawyers to ensure our clients’ rights are protected at all stages.
- Government Investigations. Our lawyers understand how the antitrust agencies work, which allows them to help clients on some of the most complex government investigations. We represent both complainants and respondents in these investigations. We have particular strength in helping companies navigate parallel government and civil actions, working with them to determine the most advantageous litigation strategy when facing criminal and civil actions relating to the same conduct.
- Cartel Defense. Our team of experienced cartel lawyers defends companies and individuals in criminal investigations. Our combination of white collar experience and knowledge of the Department of Justice (“DOJ”) allows us to achieve great results for our clients. We are skilled negotiators, but stand ready to try cases with an experienced trial team
- Private Litigation. Our attorneys have decades of experience litigating civil antitrust disputes, including defending clients in class action suits and litigating disputes among companies relating to allegations of monopolization and other unilateral exclusionary conduct. We also have significant appellate experience in competition matters.
- Merger Clearance and Counseling. Our group regularly assists companies in evaluating antitrust concerns that arise in the regular course of business or when evaluating potential mergers, acquisitions, and other transactions with competitive implications. We regularly draft, implement, and advise on antitrust compliance and training programs and advise clients with respect to the potential impact of proposed antitrust legislation and regulations.
- Thought Leadership. Our attorneys are leaders in the development of antitrust doctrine. They are leaders of the American Bar Association Antitrust Law Section, the Inn of Courts and are recognized by the leading rankings including Chambers and The Legal 500. We also help clients navigate compliance with antitrust and competition laws and advise on pending antitrust legislation and regulations that could impact their businesses.
Key Contacts
All Attorneys
Government Litigation and Investigations
- Represent an innovative technology company in connection with DOJ antitrust litigation against Google.
- Represent a media company regarding an investigation involving anticompetitive conduct by a large technology company.
- Represent a commodities company concerning an investigation in Eastern Europe.
- Represent a customized promotional products company in connection with an FTC investigation into allegedly false country-of-origin claims.
Cartel Defense
- Represent a seafood company regarding a criminal investigation into price fixing.
- Represent a shipping company concerning criminal and civil antitrust litigation related to allegations of price-fixing and bid-rigging.
- Represent an individual in the generic pharmaceutical industry with regard to an investigation by federal and state authorities.
- Represent a commodities company in a cartel investigation in Latin America.
- Represent an individual in a federal investigation into bid-rigging on federal contracts.
Private Litigation
- Represent a seafood company concerning multi-jurisdictional litigation in In Re Packaged Seafood MDL.
- Represent a pharmaceuticals company in regard to an alleged pay for delay scheme in In Re Namenda MDL.
- Represent a leading financial institution in antitrust litigation alleging a group boycott among major investment banks.
- Represent the world’s largest auto parts manufacturer in multi-jurisdictional litigation in In Re Auto Parts 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.
- Represented a multi-employer collective bargaining association that was joined in an antitrust challenge to a provision in collective bargaining agreement; obtained complete dismissal for all defendants after co-defendant labor union had been denied summary judgment.
Merger Clearance and Compliance
- Represent a commodities company concerning a potential acquisition of a key competitor.
- Represent an energy company regarding a purchasing joint venture with a potential competitor.
- Represent a professional services company with regard to benchmarking its compliance program.
- 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
Prior to joining Cohen & Gresser, Allon was a federal prosecutor for 14 years in the U.S. Attorney’s Office for the Eastern District of New York. As Deputy Chief, he oversaw more than 100 AUSAs across the Criminal Division’s nine sections. Previously, he served as Chief of the Organized Crime & Gangs Section. As an Assistant U.S. Attorney, Allon prosecuted cases involving a variety of crimes, including foreign bribery, health care fraud, racketeering, securities fraud, money laundering, wire fraud, national security offenses, and public corruption offenses.
“I couldn’t be more excited to join Cohen & Gresser. I have admired the firm for a long time and have been consistently impressed with its growth and success,” said Allon. “The white-collar practice is outstanding, and I look forward to leveraging my experience investigating cross-border white-collar crime, negotiating corporate resolutions, and taking complex cases to trial. I also look forward to applying my experience to the firm’s excellent work in antitrust and civil litigation.”
“Allon is a skilled litigator with proven results. His extensive experience as a federal prosecutor adds new depth and capabilities to the firm’s white-collar, antitrust, and litigation and arbitration practices,” said Lawrence T. Gresser, co-founder and global managing partner of Cohen & Gresser. “On behalf of everyone at the firm, I’m delighted to welcome Allon to the team.”
Before joining the U.S. Attorney’s Office, Allon served as a law clerk to the Honorable Nicholas G. Garaufis, U.S. District Judge for the Eastern District of New York, and as a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison. Allon earned his law degree from Harvard Law School.
Allon is a member of the Federal Bar Council’s Federal Criminal Practice Committee and the American Bar Association’s Antitrust Law and Criminal Justice Sections. He currently serves as Chair of the Constitution & Rules Committee of the United States Tennis Association. He was previously a Lecturer in Law at Columbia Law School.
Read New York Law Journal's coverage here.
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.
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.
Cohen & Gresser’s White Collar Defense & Regulation practice is ranked in Chambers USA for the tenth consecutive year, maintaining its position as one of the “Elite” firms in Litigation: White-Collar Crime & Government Investigations. Chambers commentary highlights the group’s “wealth of governmental experience” and “expert financial services practice.”
Cohen & Gresser’s Commercial Litigation practice is again ranked in Litigation: General Commercial: Highly Regarded. The practice is recognized for its “strong, talented pool of litigators” and “experience handling a vast range of commercial cases.” Client commentary focused on the firm’s “incredibly high-quality, sophisticated work.”
Additionally, members of Cohen & Gresser’s Antitrust practice were named as Antitrust: Litigation Specialists. Partners throughout Cohen & Gresser’s US practices were recognized individually, including the following:
Antitrust: Litigation Specialists (DC)
Litigation: General Commercial (NY)
Litigation: Securities (NY)
Litigation: White-Collar Crime & Government Investigations (NY)
“Congratulations to Tom, Ben, and Louise on their well-deserved promotions,” said Lawrence T Gresser, global managing partner of Cohen & Gresser. “They are a talented group of lawyers who have demonstrated an extraordinary dedication to client service. All three represent Cohen & Gresser’s core values of excellence, integrity, and respect, and we are pleased to recognize their significant achievements and the impact they have within their practices and at the firm.”
Thomas Shortland – Partner, London
Tom Shortland represents corporations and individuals in a range of commercial and business disputes in the English courts, courts in overseas jurisdictions, and in international arbitrations. He also advises on internal and disciplinary investigations, regulatory proceedings, and financial crime matters. Tom has been recognized in The Legal 500 UK’s guide as a “Rising Star” in Commercial Litigation and as a key lawyer in Regulatory Investigations and Corporate Crime.
Benjamin Zhu – Counsel, New York
Ben Zhu focuses his practice on litigation and white collar defense matters. He has represented corporations and individuals in a range civil and criminal matters, including complex commercial disputes, mass tort litigation, legal malpractice actions, and government investigations. He has been named a Rising Star in New York by Super Lawyers since 2021. Ben is a magna cum laude graduate of the New York University School of Law, where he received the Order of the Coif and was a Notes Editor of the Law Review.
Louise Le Guilchet – Counsel, Paris
Louise Le Guilchet focuses her practice on complex litigation (including general civil and commercial matters, shareholder disputes, and post-acquisition litigation) as well as internal and regulatory investigations. Louise holds a master’s degree in Private International Law and International Trade from the Université Panthéon-Assas and a master’s degree in International Finance from HEC Paris (Grande Ecole).
Financier Worldwide is a leading information source covering corporate finance and board-level business issues. As a leading publisher of news and analysis on this dynamic global market, the organisation is recognised as a valued source of intelligence to the corporate, investment, and advisory community.
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.
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
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
Christian R Everdell has been promoted to partner, and Joanna K Chan, Erica Lai, and David F Lisner have been promoted to counsel.
"Congratulations and thanks to each of these exceptional attorneys for their commitment to excellence, integrity, and superb client service. We are very fortunate to have them," said Managing Partner, Lawrence T Gresser.
Melissa H Maxman was quoted in a Bloomberg article regarding Google’s internet dominance and the effects on internet searches, noting that “bringing plaintiff cases in the U.S. will be challenging, especially after the Federal Trade Commission closed its investigation of Google in 2013.”
The Capitol Forum Interview Series features a discussion with Melissa H Maxman, Managing Partner of C&G's Washington, D.C. office.
View the interview here.
Cohen & Gresser is pleased to announce the opening of its fourth office in Washington, D.C. The Washington office will be led by partner Melissa H Maxman, and will handle a range of commercial litigation and regulatory enforcement matters, with a focus on U.S. antitrust issues, criminal and civil litigation, and compliance and regulatory disputes in the federal agencies.
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 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.
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.
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.
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 DC 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.
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.
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.
Offering insight to multinational corporations in terms of navigating within, among, and between the different policies and agendas of antitrust regimes around the world.
Listen to this episode to learn more about the components of the draft, including the Commission’s two-stage approach for analysing potential exclusionary abuses of dominance and the available defences, as well as the implications for the guidelines of the Google Shopping ECJ judgment that deals with self-preferencing as an abuse.
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.
In the episode, the DOJ Antitrust Division’s Deputy Assistant Attorney Generals Andy Forman and Michael Kades speak with Melissa and co-host Anora Wang of Arnold & Porter about the background, guiding principles, and some specific language in the draft Guidelines.
In recent congressional testimony, FTC Chair Lina Khan definitively declared that there is no ESG antitrust exemption. How can companies avoid violating the antitrust laws while still complying with demands from their shareholders and other constituents to conduct business consistent with policies that are environmentally and socially sensitive, and promote good public policy?
Melissa Maxman participated in the discussion, which addressed the intersection between ESG and the Sherman Act.
Listen to this episode to learn more about whether existing antitrust exemptions, such as Noerr-Pennington, can affect business decisions about ESG.
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.
C&G’s Melissa H Maxman co-hosts this episode of the podcast “Our Curious Amalgam,” presented by the American Bar Association’s Antitrust Section, where she spoke with Bill Kovacic, Former Chair of the FTC and Director of the Competition Law Center at George Washington University, to discuss how the nearly decade-long debate about antitrust reform may play out in the new administration.
Erica Lai served as the moderator of a panel discussion titled “Promoting Women’s Professional Development And How Men Can Help – During the Challenges of the Pandemic and Beyond.” The panel was hosted by American Bar Association Antitrust Law Section’s Women.Connected committee.
Melissa H Maxman presented a CLE on "Preventing and Defending a Private Civil Class Action Price-Fixing Lawsuit: Best Practices for a New Decade" at a program hosted by Lawline. She outlined clear steps to ensure the best strategies to prevent and defend against different types of anticompetitive allegations.
Melissa H Maxman appeared on an episode of Our Curious Amalgam’s podcast series, titled “When is Doing Good Bad? Antitrust in Social Responsibility Agreements,” hosted by John Roberti, leader of the Antitrust Section of the American Bar Association.
Listen to the episode here.
Melissa H Maxman participated in a presentation, titled “The Incoherent Justification for Naked Restraints of Competition: What the Dental Self-Regulation Cases Tell Us about the Cavities in Antitrust Law” at the 19th Annual Loyola Antitrust Colloquium at the Loyola University Chicago School of Law.
Partner Melissa Maxman appeared on Legal Talk Network’s podcast series ‘On the Road’ on the ‘Antitrust Exemptions in Sports--& More!’ episode. She joined host Creighton Macy of Baker McKenzie, and panelists Sathya Gosselin of Hausfeld and Kim Scott of Miller Canfield, in a discussion about antitrust exemptions in sports, antitrust careers, and litigating sports cases.
Consumer Antitrust Institute in Chicago
ABA Antitrust Spring Meeting Panel, Washington DC
International Association of Korean Lawyers, IAKL Seoul Conference Program, Washington, D.C.
Association of Transportation Law Professionals (“ATLP”) 87th Annual Meeting in New Orleans
Melissa Maxman was a panelist at this event.
Melissa was a primary commentator at this event.
Melissa was a panelist at this event.
Melissa was a speaker at this event.
Melissa was a speaker at this event.
Melissa was a speaker at this event.
Multiple presentations while at the U.S. Department of Justice, including to the U.S. Navy, officials and military in Guam, and agencies and governmental bodies in California, Nevada, and Alaska.
Key Contacts