![]() The DOJ and FTC responded to the Executive Order’s encouragement to review the horizontal and vertical merger guidelines by making several changes. ![]() economy and harming consumers and workers as a result. Merger enforcement also was a key focus of the Executive Order, which criticized corporate consolidation that it characterized as plaguing the U.S. The DOJ also filed Statements of Interest in two private litigations, seeking to set judicial precedents that would broadly apply the antitrust laws to labor. The DOJ also continues to examine potential anticompetitive practices in labor markets, including an increase in criminal investigations and prosecutions of no-poach agreements, wage fixing, and other alleged conspiracies in labor markets that DOJ contends are per se violations of the antitrust laws. The DOJ followed suit on July 26, 2022, signing its own Memorandum of Understanding with the NLRB.Īs we reported here, the DOJ entered into a similar arrangement with the United States Department of Labor (DOL) in March, signing a Memorandum of Understanding to memorialize a commitment to exchange information either agency uncovers that could trigger an additional investigation by the other agency. Most recently, on July 19, 2022, the FTC announced it is joining with the National Labor Relations Board (NLRB) in a new Memorandum of Understanding that outlines ways in which the two agencies will work together to share information, conduct cross-training of agency staff, and partner on investigative efforts within each agency’s authority. One example includes prohibitions placed on a convenience store franchisor from enforcing non-compete agreements as to any franchisees or employees working or doing business with assets the franchisor agreed to divest in response to a merger challenge. ![]() However, the FTC has taken numerous other actions it believes will provide protections for workers. As it relates to the directive on employee non-compete provisions and occupational licensing restrictions, to date the FTC has taken no concrete rulemaking action. The Executive Order encouraged the FTC to adopt regulations curtailing the “unfair” use of employee non-compete provisions and occupational licensing restrictions as well as directing the FTC and/or DOJ to consider whether to revise past guidance on the sharing of employee wage and benefit information to prevent potential collusion among competing employers. This alert provides a high-level survey of key actions taken pursuant to the Executive Order and discusses what other developments or activity may still be forthcoming. As a result, over the past year the DOJ and the FTC, in conjunction with other federal agencies, have engaged in a flurry of activity aimed at curbing perceived “market abuses” that the Biden Administration has characterized as harmful to consumers, workers, and innovation. antitrust enforcement agencies, the Department of Justice (DOJ) and the Federal Trade Commission (FTC), to “enforce the antitrust laws vigorously” with a focus on labor, agriculture, health care, and technology. Notably, the Executive Order called on the two U.S. The Executive Order did not immediately put any specific policies into effect instead, it directed and encouraged federal regulators to consider policy initiatives, conduct a series of reviews, and craft new rules to implement the overarching policy goals of the Administration. The Executive Order was notable in its breadth and commitment to a coordinated, “whole-of-government” effort aimed at reinforcing competition across the nation’s economy to protect consumers, workers, and small businesses. Earlier this month - Jmarked the one-year anniversary of President Biden’s Executive Order on Promoting Competition in the American Economy (Executive Order).
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