Our team of antitrust lawyers includes two former U.S. Attorneys and a former senior official in the FTC. We represent clients in a wide range of government-initiated investigations and enforcement actions, including:
- Criminal antitrust investigations and litigation brought by the DOJ
- Civil antitrust conduct investigations brought by the DOJ, FTC and/or state antitrust enforcement agencies
- Antitrust investigations and actions brought in connection with mergers, acquisitions and the formation of joint ventures, which typically are conducted by the DOJ, FTC and/or state antitrust enforcement agencies
Locke Lord currently is representing defendants in two separate criminal cases involving alleged “wage-fixing” and “no-poach” agreements. This is newsworthy because prior to these two cases, the DOJ had never prosecuted criminal defendants for these types of antitrust violations.
A sampling of our experience in government investigations and litigation matters includes:
Criminal Antitrust Litigation and Investigations
- U.S. v. Jindal. Currently representing a defendant in a criminal case filed by the DOJ. Our client previously owned a medical staffing agency in the Dallas-Ft. Worth area. The DOJ alleges that our client coordinated a “wage-fixing” scheme with other medical staffing agencies in violation of Section 1 of the Sherman Act. These same allegations were the focus of a related FTC investigation, which resulted in a 2018 settlement and consent order that involved our client. Prior to this case, the DOJ had never charged a defendant with a criminal violation for an alleged wage-fixing agreement. The case is pending in the U.S. District Court for the Eastern District of Texas, and is set for trial in April 2022.
- U.S. v. Surgical Care Affiliates LLC. Currently representing a defendant in a criminal case filed by the DOJ. Our client and a related company owned and operated outpatient medical care facilities across the United States. The DOJ alleges that the defendants and another outpatient medical care company violated Section 1 of the Sherman Act “by agreeing not to solicit each other’s senior-level employees.” Prior to this case, the DOJ had never charged a defendant with a criminal violation for an alleged “no-poach” agreement. The case is pending in the U.S. District Court for the Northern District of Texas, and is set for trial in May 2022.
- Gypsum Drywall Criminal Investigation. Represented a large U.S. drywall manufacturer in connection with a DOJ criminal price-fixing investigation involving manufacturers that produce and sell gypsum drywall. The Grand Jury considering the evidence was in the U.S. District Court for the Western District of North Carolina. Our client was informed in 2018 that the investigation was closed.
Civil Antitrust Investigations and Litigation
- In the Matter of Benco Dental Supply Co. Represented one of the nation's largest distributors of dental products and supplies in an investigation and administrative action filed by the FTC, which alleged that three full-service dental products distributors conspired to deny discounts and refuse to do business with dental buying groups in violation of the federal antitrust laws. The FTC's administrative action was related to separate investigations of the same conduct by antitrust enforcement agencies in Texas and Arizona. Following a multi-week trial, the Administrative Law Judge issued a decision dismissing the FTC's antitrust claims against our client. In his decision, the ALJ found the case against our client "considerably weaker" than that against the other dental suppliers, due to evidence that our client continued to work with and provide discounts to buying groups during the alleged conspiracy period. Based on these findings, the ALJ concluded that the evidence failed to prove a conspiracy involving our client, but held that the FTC did prove some of its antitrust claims against the other two dental suppliers. The FTC did not appeal the ALJ's decision.
- ARMA Information Exchange Investigation. Represented a manufacturer of asphalt roofing shingles in a civil investigation by the FTC involving an exchange of product shipping information among members of the Asphalt Roofing Manufacturers Association. Our client was served with a Civil Investigative Demand (CID) in the investigation, and following the production of documents and negotiations with the FTC, the investigation was closed in 2019.
- TrueCar Group Boycott Investigation. Represented a group of Lexus automobile dealerships in a civil investigation by the FTC regarding a possible group boycott directed at a company that operated an online information platform for matching potential automobile purchasers with automobile sellers. Our client was served with a CID in the investigation, and after the production of documents and protracted negotiations with the FTC, the investigation was closed in 2015.
Merger and Acquisition Investigations
- DOJ Investigation of TreeHouse Foods/Riviana Foods Transaction. Represented Riviana Foods, Inc., in a transaction that resulted in the sale of most of Riviana’s pasta brands and pasta business assets in the United States. The purchaser in the transaction was TreeHouse Foods, Inc., which was a large competitor in the U.S. pasta market. We worked closely with TreeHouse’s antitrust counsel to identify certain pasta assets and brands that might cause antitrust concerns if they were included in the transaction. These assets and brands were carved out of the transaction in an effort to mitigate possible antitrust concerns that might be raised by the antitrust enforcement agencies. After the DOJ launched an investigation regarding the transaction, we represented Riviana in producing requested information and data and in advocating to the DOJ why the proposed transaction would not raise any competitive concerns. Less than four weeks after the HSR notices were filed, the parties received a letter from the DOJ notifying them that their request for early termination of the HSR waiting period was granted, and the transaction closed soon after the early-termination letter was received.
- FTC Investigation of the Tri-Star Energy/Hollingsworth Oil Company Transaction. Represented Hollingsworth Oil Company (HOC) and related parties in a merger investigation, which resulted in a negotiated consent order with the FTC to divest certain retail fuel assets that were part of a transaction between HOC and Tri Star Energy (Tri Star). The consent order — which was quickly facilitated during the COVID-19 pandemic — settled charges that the proposed acquisition of certain HOC fuel stations by Tri Star would violate federal antitrust laws, as both parties operated fuel outlets and convenience stores in the central Tennessee area. According to the FTC's complaint, the acquisition of these assets by Tri Star would have harmed competition for both retail gasoline and diesel fuel in local markets near Nashville, Tennessee. Under the terms of the consent order, Tri Star divested some of its assets in these markets to Cox Oil Company within 10 days after the completed acquisition.
- FTC Investigation of the NEXUS Gas Transmission/Generation Pipeline Transaction. Represented Avista Capital Partners in the sale of Generation Pipeline (a midstream natural gas company) to NEXUS Gas Transmission. This transaction resulted in investigations by the FTC, which issued a "Second Request" for additional information relevant to the transaction, and by the Ohio Attorney General, who issued a similar CID. In response to these discovery requests, our clients produced thousands of documents and submitted other written materials showing that the transaction would not substantially lessen competition in the relevant market. After extensive discovery and negotiations with the FTC, the parties agreed on a consent order that included the removal of a non-compete clause from the purchase agreement. As a result of this consent order, the FTC withdrew its challenge to the transaction, and the Commission voted unanimously to approve the deal.