Blog


News about developments in antitrust cases, mergers and acquisitions, and related regulatory and legislative activity. Tom Hagy is the Executive Editor of the MoginRubin LLP Blog.

App Developer Chronicles His Saga With Apple’s ‘Anti-Competitive’ App Store

‘Apple wanted us out of the App Store.’ By Jennifer M. Oliver In January 2018 Apple investors complained publicly about the lack of parental controls…

Auntie Em and Antitrust: Ending Ages-Old Ban, Movie Studios May Distribute Films and Own Theaters

Smaller theaters have reason for concern. By Jennifer M. Oliver At the end of the beloved 1939 film The Wizard of Oz, Dorothy famously says to…

Altria, JUUL Call FTC’s Antitrust Complaint ‘Ill-Conceived’ and Deal Good for Competition, Consumers

Altria must show it was failing in the e-cig business for deal to survive. By Timothy Z. LaComb Altria Group, Inc. and JUUL Labs, Inc.…

POTUS Uses CFIUS to Unwind TikTok Deal, Fears Chinese Government Will Get Americans’ Private Data

While rare, this use of CFIUS powers may be a harbinger. By Dan Mogin and Jennifer Oliver    Making good on his threats and citing…

Raising New Questions re Antitrust Oversight, Epic Games Sues Apple, Google for Blocking ‘Fortnite’ App

When should ‘marketplace platforms’ be treated as markets controlled by operators? By Jonathan Rubin It poses a new brand of antitrust problem: private parties controlling…

Elimination of Digital DIY Tax Prep Disrupter Should Concern Antitrust Law Enforcers

By Timothy Z. LaComb The Antitrust Division of the U.S. Department of Justice is taking a close look at the announced $7.1 billion acquisition of…

California High Court: Interference With ‘At Will’ Contract Requires ‘Separate Wrong’ to be Actionable

The sky is not falling. Opinion limited to ‘at will’ contracts. By Dan Mogin and Jennifer M. Oliver   When a third party craters a…

Four of the Five Biggest Tech CEOs Headed to Capitol Hill for Antitrust Hearings

Subcommittee: Are antitrust laws and enforcement adequate these days?   By Jennifer M. Oliver The CEOs of Amazon, Apple, Facebook, and Google are scheduled to…

DOJ Antitrust Chief Refutes Whistleblower’s Testimony Accusing AG Barr of Bias

  Allegations that enforcers are enlisting antitrust agencies to satisfy personal grudges. That’s new. By Jennifer M. Oliver One of U.S. Attorney General Bill Barr’s…

Healthcare Industry Antitrust Measures Advance as Pandemic Pressures Persist

Did consolidation help frustrate U.S. COVID-19 preparedness? By Jennifer M. Oliver California Attorney General Xavier Becerra says the COVID-19 virus has “shone a light” on…

Class of End-Payors Certified in Illegal Monopolization Suit Against Drug Maker Allergan

An outrageous end-run impacting price of dry-eye treatment. By Jennifer M. Oliver On May 5, 2020, U.S. Judge Nina Gershon of New York granted certification…

Ninth Circuit Opens Door for Students to Receive Additional Benefits for Playing Sports, Finds NCAA Rules Violation of Antitrust Laws

Is amateur status really what fills the seats? By Timothy Z. LaComb The National Collegiate Athletic Association’s rules limiting education-related benefits for student-athletes are impermissible…

Seventh Circuit Breathes New Life into Refusal-to-Deal Claims

Viamedia Case Against Comcast Moves Ahead By Jonathan Rubin and Timothy Z. LaComb On Feb. 24, 2020, the Seventh Circuit U.S. Court of Appeals revived…

Storm Clouds Forming Over Google as Summer Approaches

Former DOJ Economists Say a Google Anticompetition Inquiry is “Justified” and “Urgent” By Jennifer M. Oliver When researching the state of play between antitrust enforcers…

Dining Delivery Disruptors Disrupted: DOJ, FTC Should Examine Uber’s Planned Purchase of Grubhub, Senators Say

By Jennifer M. Oliver Driven by competitive pressure and pandemic-related losses, Uber Technologies Inc. has expressed its intention to acquire competitor Grubhub Inc. to improve…

End of an Era: The U.S. is No Longer the Authority Figure for Multinational Mergers

Recent ‘Go / No-Go’ Calls Made by U.K., E.U. By Jonathan Rubin and Timothy Z. LaComb   [Editor’s Note: An earlier version of this post…

What Bankruptcy Counsel Need to Know About Antitrust Law: Nothing Is Free and Clear

Antitrust law doesn’t take a back seat to bankruptcy.   By Jennifer Oliver While bankruptcy is no one’s idea of a dream, the beauty of…

Ticketmaster, Live Nation Get Booed: Concert-Goers File Class Action for “Unchecked” Abuse of Market Power

Live Nation Threatens Anyone Who Doesn’t Play Along, Plaintiffs Allege By Jennifer Oliver Concert-goers tired of paying “supracompetitive fees” on ticket purchases from Ticketmaster LLC…

Is a Moratorium on Mergers During the Pandemic a Bridge Too Far?

Some fear cash-rich corporations and private equity firms will exploit the downturn to devour competitors. By Timothy Z. LaComb In an interview with Politico’s Leah…

Contractual Distancing: Pandemic Insurance Litigation Spreads with Business Interruption Claim Denials

By Jennifer Oliver Insurance coverage works when risk is spread across a large number of policyholders.  But for the insurance market to function properly losses…

Private Antitrust Action Follows FTC Complaint Against Altria and Juul Over E-Cigarette Deal

Antitrust headwinds don’t let up. By Timothy Z. LaComb Living by the adage “if you can’t beat them, join them,” tobacco giant Altria Group, Inc.…

Is a Pandemic a Material Adverse Event in M&A?

Question already casting clouds over corporate deals. By Dan Mogin and Jennifer M. Oliver Reuters has reported that Gray Television Inc. has withdrawn its $8.5…

U.K. Begins Phase II Probe of Cengage/McGraw-Hill Merger

Opposition mounts, putting deal at risk. By Timothy Z. LaComb On March 10, 2020, the U.K.’s Competition and Markets Authority gave Cengage and McGraw-Hill an…

In Memory of Stanley Sporkin (1932 – 2020)

STANLEY SPORKIN (1932-2020) A personal note from Dan Mogin I read today that Stanley Sporkin recently passed away. The American legal community has lost a…

UK Threatens Phase II Review of Cengage/McGraw-Hill Deal

Ultimatum comes same day U.S. reps urge DOJ scrutiny. By Timothy Z. LaComb and Jennifer M. Oliver On March 10th, the U.K. Competition and Markets…

Enforcers, Experts Discuss Tamping Down Anticompetitive Behavior in Bio Market During FDA/FTC Workshop

The day’s catchphrases: shenanigans, whack-a-mole By Joy Sidhwa For believers in free markets it is important that they operate free of “shenanigans,” Food & Drug…

DOJ: Event Powerhouse Live Nation Punished Concert Venues for Using Competing Ticketers Despite Bar

Highlights contracts event conglomerates use to lock down artists and venues. By Jennifer Oliver   Live Nation Entertainment, Inc., owner of some of the world’s…

Are These the First Steps Toward a New Approach to Merger Control?

FTC Taking a 10-Year Antitrust Look-Back at Big Tech By Jonathan Rubin Big Tech mergers make big headlines, but there is much more to a…

FTC, FDA Team Up Against Anticompetitive Tactics in Biological Product Industry

Pledge crackdown on conduct that denies patient access to crucial medications. By Joy M. Sidhwa Anticompetitive conduct and misleading advertising practices in the burgeoning biosimilars…

Consolidation of Financial Markets Continues as Morgan Stanley Offers to Buy E*TRADE, Pioneer of Low-Cost Online Trading Segment

By Timothy Z. LaComb Morgan Stanley’s proposed $13 billion all-stock acquisition of the popular E*TRADE online discount brokerage made big headlines last week. While no…

Treasury’s New Regs Address Impact of Foreign Investments, Other Deals on National Security

National Security vs. Investment: Are we striking the right balance? By Dan Mogin and Jennifer M. Oliver The U.S. Treasury Department’s final regulations, giving it…

FTC Moves to Block Acquisition of Innovative Player That Has Been Good to Wet-Shave Razor Consumers

Commission says Schick Brand Owner Simply Seeks to Eliminate Market Disrupter, Harry’s By Timothy Z. LaComb The Federal Trade Commission (FTC) voted unanimously to challenge…

Agencies’ Antitrust Suit Against Drug Maker Underscores Challenges of Bringing Biosimilars to Market

The Federal Trade Commission and the New York Attorney General have sued Vyera Pharmaceuticals and two of its executives for antitrust law violations, saying the…

FTC Announces 2020 ‘Size of Transaction Thresholds’

Thresholds Apply to Clayton Act Premerger Notification Filings and Interlocking Directorates The Federal Trade Commission (FTC) announced on Jan. 28, 2020, that the “size-of transaction…

Lawsuit Opposes Creation of Textbook Publishing Duopoly, But Omits a Critical Remedy

Behemoths would use market domination to increase costs to student consumers, block market entrants. By Timothy Z. LaComb Two of the three dominant college textbook…

Remedies the Same for General Patent and Standard-Essential Patent Disputes, Agencies State

The Broad Market Effects of SEPs Must Not Be Forgotten in Constructing Remedies. By Jonathan Rubin and Jennifer M. Oliver Imagine purchasing a lamp that…

At Long Last: FTC, DOJ Issue New Draft Vertical Merger Guidelines

What it Means for the Vertical Integration Trend By Dan Mogin and Jennifer M. Oliver The Department of Justice (DOJ) and Federal Trade Commission (FTC)…

Company Sues to Hold the FTC and Its Merger Review Process Unconstitutional

Axon faces an uphill battle given the federal government’s widespread use of ALJs. By Jonathan Rubin and Jennifer M. Oliver “If that procedure sounds unfair,…

Schwab/TD Ameritrade Deal Would Create a Wealth Management Market Dominator

Acquisition raises significant antitrust issues. By Timothy Z. LaComb Charles Schwab Corp. has announced it will acquire TD Ameritrade Holding Corp. for $26 billion in…

FTC Challenges Illumina- PacBio Merger Over Next Gen DNA Sequencing

Government says Illumina wishes to extinguish PacBio’s nascent threat. Companies fight this argument in Britain. By Dan Mogin The Federal Trade Commission (FTC) is challenging…

Comcast Sued for Alleged Regional Sports Network Monopsony

Comcast says licensor Altitude Sports rejected “all reasonable” offers. By Timothy Z. LaComb Claiming Comcast Corp. is using its significant buying power and ambitious nationwide…

Undeterred by Challenges, Google Makes Another Move to Harvest Healthcare Data

Google pursues Fitbit despite ongoing scrutiny, fines and lawsuits in the health data space. By Jonathan Rubin You have to give Google credit. It’s no…

Spurned by HP Board of Directors, Xerox Gets Hostile, and is Spurned Again

Case raises a unique antitrust question. By Dan Mogin and Jennifer M. Oliver Copy equipment giant HP Inc. turned down the much smaller Xerox Holdings…

Anheuser-Busch InBev, Craft Brew Alliance Take Relationship to the Next Level

By Timothy Z. LaComb   The number of independent domestic craft brewers is dropping by one.   After a 25-year business relationship, Anheuser-Busch InBev Worldwide,…

China’s TikTok Facing Privacy & Security Scrutiny from U.S. Regulators, Lawmakers

TikTok Didn’t Realize it Acquired Privacy Problems With Musical.ly Two Years Ago By Jennifer M. Oliver Perhaps it is a welcome reprieve for Facebook, Google…

Billion-Dollar Merger of DNA Sequencing Firms Opposed by U.K., Questioned in U.S.

Antitrust concept now significant in life sciences. By Dan Mogin DNA sequencing giant Illumina, Inc.’s proposed $1.2 billion acquisition of Pacific Biosciences of California Inc.…

Take Our CLE Webinar: The Intersection of Antitrust and Privacy

Market Behavior and Data-Driven Market Power  Moderator & Speaker: Daniel J. Mogin | Managing Partner, MoginRubin LLP Speakers: Jennifer M. Oliver, CIPP/US | Partner,…

Beef Buyer Class Action Says ‘Big Beef’ Colluded to Score Record Profits by Manipulating Capacity

By Dan Mogin First it was cattle ranchers. Then came the consumers. Now it’s the direct purchasers of one of the nation’s most delicious and…

CCPA Update: Governor Signs Batch of Amendments

California Governor Gavin Newsom has signed several amendments to the California Consumer Privacy Act of 2018. Issues range from the timing of employer disclosure requirements…

California Tackles Big Pharma’s Anticompetitive ‘Pay for Delay’ Practices That Slow Down Lower-Cost Generic Drug Development

By Jennifer M. Oliver and Timothy Z. LaComb California Gov. Gavin Newsom has signed AB 824, known as the “Pay-for-Delay” bill, blocking pharmaceutical companies from…

DOJ Opposes Merger of Auto Industry’s Aluminum Sheet Suppliers, Agrees to Arbitrate Market Definition

By Jennifer M. Oliver The U.S. Department of Justice Antitrust Division is for the first time exercising its authority under the Administrative Dispute Resolution Act…

CCPA Changes Sent to Governor’s Desk as January Effective Date Draws Closer and Compliance Costs Loom Large

By Jennifer M. Oliver Several amendments to the California Consumer Privacy Act of 2018 are headed to Gov. Gavin Newsom’s desk. Issues range from the…

California’s College Athletes May Profit from Their Positions, Kicking Off a National Wave and a Bout with the NCAA

By Timothy Z. LaComb and Jennifer M. Oliver September 30, 2019, was a big day for college athletics. Alongside Lakers’ star LeBron James (who ironically…

Colleges, Students Tell DOJ McGraw-Hill/Cengage Merger Would Create a Textbook Duopoly

By Timothy Z. LaComb Two of the three dominant college textbook publishers – McGraw-Hill Education, Inc. and Cengage Learning Holdings II, Inc – have agreed…

Consumer Groups and Unions Tell FTC: AbbVie-Allergen Merger Will Deny Access to More Effective and Affordable Drugs

By Dan Mogin, Jennifer M. Oliver and Timothy Z. LaComb In a September 13, 2019 letter, seventeen consumer advocacy groups and unions (led by Public…

‘Big Tuna’ Antitrust Case Among Latest to Discuss Daubert Test at Class Certification Stage. But What’s Too Rigorous?

By Jennifer M. Oliver U.S. Judge Janis L. Sammartino in California’s Southern District certified a price fixing class action against “Big Tuna” this summer following…

German Court: Facebook’s Use of Non-Facebook Data, Even if a Privacy Violation, is Not Anti-Competitive

While Facebook is under assault from multiple agencies and branches of government in the U.S. and Europe, it received a little good news from Germany,…

Google’s Cookie Conundrum: What’s Essential to Revenue Also Threatens Privacy

By Jennifer M. Oliver Google says cookies are good. They are critical to generating advertising revenue and they help the company improve its product from…

DOJ Opposes Sabre’s Acquisition of Airline Ticketing Disrupter Farelogix

By Jennifer Oliver When a company with a new idea shakes up an industry and delights consumers, it is tempting for established players to devour…

Hard-Disk-Drive Suspension Makers, Distributors Face Price-Fixing Class Actions, One Pays $28M Criminal Fine

By Dan Mogin People old enough to remember record players (or people who have rediscovered them) know what it was like when the needle skipped…

CBS and Viacom Get Back Together to Serve Largest Share of U.S. TV Market

By Dan Mogin and Timothy Z. LaComb Apparently celebrity breakups and reunions happen at the corporate level, too. CBS Corp. is buying Viacom in an…

FTC ‘Gift’ to Facebook Arrives in Less-Than-Cheery Wrapping Paper for Zuckerberg, Sandberg

  By Jennifer Oliver Even in the year 2019, $5 billion is a lot of cash. The Federal Trade Commission’s penalty against Facebook in that…

DOJ Gets Involved in Antitrust Case Against Symantec and Others Over Malware Testing Standards

By Jonathan Rubin and Timothy Z. LaComb The U.S. Department of Justice Antitrust Division has inserted itself into a case that questions whether the Anti-Malware…

Remedy or Misadventure? DOJ Proposes Creation of New Competitor to Allay T-Mobile/Sprint Anticompetition Concerns

By Jonathan Rubin and Timothy Z. LaComb The federal government and five state attorneys general reached a proposed settlement with T-Mobile and Sprint on July…

Anticompetition & Privacy Probes Put Big Tech on the Defensive, Scrambling to Adapt & Paying Fines

By Jennifer M. Oliver & Nicole Ambrosetti The Department of Justice Antitrust Division and the Federal Trade Commission are making good on their promises to…

Talent Agencies Sue Writers’ Unions for Anticompetitive Boycott

The world’s leading talent agencies claim the two Writers Guild of America (WGA) unions violated antitrust laws by executing what they call an illegal boycott…

Free Competition or National Security? Chip Giant Qualcomm’s Business Practices Pit the FTC Against the DOJ

Ubiquitous modem chips allow our smart devices to communicate with each other over cellular networks using industry standards like 4G LTE. A small group of…

DOJ Will Weigh ‘Good Corporate Citizenship’ in Future Criminal Probes

Assistant Attorney General Makan Delrahim announced on July 11, 2019, the Antitrust Division’s new policy for incentivizing antitrust compliance, saying the government “will consider compliance…

Professional Sports Leagues at Odds With Gaming Industry Over Control of Statistics

For a group of organizations whose very existence is based on fair world-class competition, the competitive spirit of professional sports leagues has drawn its share…

Following California High Court, 9th Circuit Invalidates Mandatory Arbitration of Consumer Claims

Mandatory arbitration clauses in California just became a lot less mandatory. The Ninth Circuit U.S. Court of Appeals handed consumers in three unrelated cases a…

Salmon Industry Faces Price-Fixing Lawsuits in the U.S. Following Raids in Europe

Commercial U.S. buyers of Farmed Atlantic Salmon have sued many of the leaders of what they maintain is a global cartel that has colluded to…

Cases Alleging Caustic Soda Cartel Combined in Federal Court in Upstate New York

Five companies filed separate lawsuits earlier this year in the Western District of New York against the nation’s leading manufacturers of caustic soda, a chemical…

AbbVie Buying Allergan for $63B, Creating a Dominant Player in Beauty Drug Market

June 25, 2019 — AbbVie Inc. is acquiring Dublin-based Allergan PLC for approximately $63 billion in cash and stocks, the companies announced to today. “This…

Google is Allowing Businesses to Post Millions of Fake Listings on its Maps App. Will It Be Held Accountable?

By Jennifer M. Oliver According to a recent Wall Street Journal report millions of business listings on Google Maps are fake, thanks to businesses seeking…

Consumers, Ranchers Allege Cartel in Beef Industry

The meat packing industry is coming under increasing pressure in the form of separate antitrust lawsuits filed this year by consumers and cattle ranchers. Both…

Maine, Nevada Consumer Privacy Laws Tighten the Reins on Private Data in the U.S.

Maine — Governor Janet Mills signed the state’s tough new consumer privacy act into law June 6, requiring internet providers to obtain a consumer’s express consent before…

NY Privacy Act Would Give Consumers Substantial Control Over Their Data and Direct Action Rights

The newly proposed New York Privacy Act, S5642, would give consumers substantial control over the use of their personal data, such as the right to…

Tech Market Getting More Scrutiny, This Time From the U.S. House Antitrust Subcommittee

The line of politicians, regulators, and legislators in the U.S. and abroad expressing serious concerns about the market power held by big technology companies seems…

WSJ: DOJ ‘Gearing Up’ For Antitrust Fight Against Alphabet Inc.’s Google

The Wall Street Journal reported on May 31 that the U.S. Justice Department is “gearing up” for an antitrust investigation of Google, “a move that…

Qualcomm Seeks Stay of Judge Koh’s ‘Irreparably Flawed’ Antitrust Decision

  Qualcomm Inc. has asked U.S. Judge Lucy H. Koh of the Northern District of California to stay, pending appeal to the Ninth Circuit U.S.…

CFIUS: A Guardian of National Security or a Protectionist Tool?

What was once an obscure and relatively quiet interagency committee has been getting big headlines lately.   The committee has been playing a bigger role…

California Consumers Denied Right to Sue Companies Directly for Privacy Violations – For Now

The Appropriations Committee of the California Senate on May 17 halted efforts to add to the California Consumer Protection Act (CCPA) a private right of…

DOJ Guides Prosecutors Considering Criminal Charges in Assessing Corporate Compliance Programs

WASHINGTON, D.C. — The U.S. Department of Justice Criminal Division has issued guidance to assist prosecutors in assessing corporate compliance programs during criminal investigations. Saying…

Supreme Court Greenlights iPhone App Antitrust Case by ‘Direct Purchasers’

The Supreme Court held today that iPhone users are “direct purchasers” of apps from Apple’s wildly popular multi-billion-dollar App Store and have standing to sue,…

Product Performance Differences a Key Factor in ‘Relevant Market’ Definition

In an Initial Decision announced May 7, Chief Administrative Law Judge D. Michael Chappell upheld a Federal Trade Commission complaint challenging the consummated merger of two prosthetics manufacturers that…

CCPA & GDPR: The Many Similarities & Several Important Distinctions Between Two Laws That Can Bite

Companies will want to know of the often similar but frequently very different requirements created by the California Consumer Privacy Protection Act of 2018 (CCPA)…

German Competition Regulator Calls Facebook’s User Data Collection “Exploitative Abuse”

The German competition regulatory authority has decided to bar Facebook from combining user data with data it scrapes from non-Facebook sources — a major spring…

Spotify Tells EU Apple is Hampering Competitors as Apple Music Surpasses Spotify in U.S.

Swedish music streaming company Spotify Technology SA’s antitrust complaint against Apple Inc. in Europe is another example of a dispute arising when a company is…

Add-On Acquisitions Require Antitrust Due Diligence, Expertise, and Proactivity

With the uptick in global private equity add-on acquisition activity comes the usual M&A-related risks, but getting out in front of any potential antitrust challenges…

Sen. Markey Introduces Federal Privacy Bill of Rights Act, Includes Private Right of Action

On Friday, April 12, 2019, Senator Edward J. Markey (D-MA) introduced the Privacy Bill of Rights Act “in the wake of a series of revelations…

The New Antitrust Paradox

THE NEW ANTITRUST PARADOX: HOW PROTECTING COMPETITORS AHEAD OF CONSUMERS KILLS THE COMPETITION THAT ANTITRUST IS DESIGNED TO PROTECT. IS IT TIME TO GO BACK…

Employer Anticompetitive Practices Are Risky Business

Risky Business: No-Poach, Non-Competes, and Other Anticompetitive Employment Practices Are “Old-Time” Rock and Roll This is a brief excerpt of a thorough discussion of the…

Cannabis Competitors Engage in Anticompetitive Conduct to Protect Territory, More Cases Likely

The global cannabis market is on track to triple in size in the next three years, expecting to hit $32 billion, with two-thirds of that…

Expanding Private Right of Action Under California Consumer Protection Act Clears Judiciary Committee

By Jennifer M. Oliver, Counsel, MoginRubin LLP SACRAMENTO — April 10, 2019 — The California Senate Standing Committee on Judiciary yesterday voted 5-3 in support…

California Consumer Privacy Act Getting Fitted for New Teeth as 2020 Approaches

The landmark California Consumer Privacy Act of 2018 granted consumers new rights to protect themselves with respect to the collection and use of their private…

Entering Into a Naked No-Poach Agreement? Bring a Lawyer.

Employers and business owners who wish to protect themselves when employees leave for new positions — taking with them valuable knowledge that competitors would love…

Another Anti-Competition, Anti-Privacy Action Coming Soon, This Time in Mississippi

Mississippi Attorney General Jim Hood told CNBC on Monday, March 18, that he is developing his antitrust case against Google similar to the one brought…

With Today’s Penalty, EU’s Fines Against Google Total $9.4 Billion for Anti-Competitive Conduct

The European Commission has fined Google $1.69 billion for breaching EU antitrust rules. “Google has abused its market dominance by imposing a number of restrictive…

Internet of Things: When Does Antitrust Play a Role in Privacy and National Security?

Bipartisan legislation to improve the cybersecurity of Internet-connected devices was introduced March 11 in both the Senate and the House of Representatives. The legislation —…

Legislators Call Out Antitrust Conduct in the Drug Industry, Call Regulators’ Remedies Ineffective

The drug industry has developed a temporary cure for partisan wrangling on Capitol Hill: the high cost of health care and prescription drugs. Democrats and…