14 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 15 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C ■ Narrative description of deal rationale, identification of horizontal and vertical overlaps, and disclosure of past transactions; ■ Submission of detailed employee information; ■ Identification of Officers, Directors, and Board Observers; and ■ Disclosure of certain minority interest holders. While the timing for implementation of the proposed rulemaking is still uncertain, we expect the Agencies will try to push these changes forward in 2024, before the upcoming U.S. elections. Antitrust Labor Enforcement Remains an Evolving Landscape The DOJ Antitrust Division faced continued resistance from federal courts in its quest to criminally prosecute labor-related conduct in 2023. The agency suffered a number of trial defeats in cases criminally challenging no-poach agreements and ultimately chose to abandon its last open no-poach case in November. While this effort has largely failed on the merits in federal court – the DOJ has been unable to secure a single conviction based on no-poach charges since it began bringing cases in 2020 – the potential deterrent effect of increased enforcement is more difficult to measure. Additionally, DOJ Assistant Attorney General Kanter has publicly stated that the agency is “just as committed as ever” to pursuing criminal prosecution for Sherman Act violations in labor markets going forward. On the civil enforcement side, litigations alleging labor-related antitrust issues continued at a fast pace in 2023, with no signs of slowing in 2024. In Deslandes v. McDonald’s USA, LLC, the Seventh Circuit overturned the dismissal of a complaint challenging no-poach clauses in franchise agreements, on the grounds that it was premature to label a horizontal restraint as naked or ancillary at the pleadings stage before any of the necessary “careful economic analysis” had been done. Additionally, a decade-old case alleging labor-related antitrust violations against the Ultimate Fighting Championship (“UFC”) has recently reached a proposed class action settlement after both the Ninth Circuit declined to hear an appeal of class certification and the district court denied UFC’s motion for summary judgment. State antitrust enforcers have pursued a variety of labor-related civil actions, as well. The Illinois Attorney General’s Antitrust Bureau recently won a unanimous victory in the state’s supreme court in a case challenging no-poach and wage-fixing agreements between temporary staffing firms, with the court holding that such employers are not exempt from Illinois’ antitrust laws. Consistent with the active litigation landscape, the Agencies have also pushed for various policy changes that impact workers. In January 2023, the FTC proposed a regulation that would ban employee noncompete agreements in nearly all circumstances (see additional discussion of this development in the Employment section). Following an extended public comment period, the FTC is expected to vote on the proposed rulemaking in the spring of 2024. If the FTC votes to adopt the proposed ban, it would likely face a court challenge over both the final rule adopted and the scope of the agency’s power to define and regulate “unfair methods of competition.” With the proposed rulemaking pending, the FTC has continued to pursue enforcement actions and has secured consent orders against a number of companies that prohibit them from enforcing non-competes. The FTC and DOJ have also taken policy actions suggesting possible increased scrutiny of information sharing related to worker compensation. In 2023, both agencies separately withdrew various longstanding antitrust policy statements, which, among other things, provided antitrust “safety zones” for sharing of wage information among healthcare providers in certain circumstances. Antitrust I
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